Full Judgment Text
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PETITIONER:
HARI CHAND @ HARISH CHANDRA
Vs.
RESPONDENT:
SHRI DAULAT RAM
DATE OF JUDGMENT15/10/1986
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
SEN, A.P. (J)
CITATION:
1987 AIR 94 1986 SCR (3)1029
1986 SCC (4) 524 JT 1986 659
1986 SCALE (2)599
ACT:
Limitation Act, 1963-Article 142-Adverse possession-
Plea of-Existence of disputed wall with khaprail proved by
defendent-Plaintiff to prove case of trespass and
encroachment.
HEADNOTE:
The appellant instituted a suit for recovery of
possession of the disputed land after demolition of the
unauthorised constructions made thereon by the respondent
alleging that he became owner of the land on the basis of a
registered sale deed, that he started to build a compound
wall over and around his land after his purchase, that
taking undue advantage of his temporary absence the
respondent wrongfully encroached and trespassed along the
whole northern length of the land and hurriedly raised a low
mud wall and extended his khaprail thatch over it.
In his written statement the respondent denied that the
appellant was owner of the land and claimed that the wall
and khaprail belonged to him as they have been existing at
their present site since time immemorial, that he had been
regularly and openly enjoying the land and that under s. 142
of the Limitation Act he became the absolute owner of the
land in question on the basis of adverse possession and he
has a right of easement in the form of flowing of water from
the tiled roof.
The Additional Munsif dismissed the suit holding that
the appellant was the owner of the property and that he had
failed to prove the case of trespass and encroachment.
The appeal filed by the appellant was allowed by the
Additional Civil Judge holding that the respondent has
failed to prove that the wall in dispute and the khaprail
existed for the last more than 12 years before the suit,
that even if respondent’s wall and khaprail are old ones he
is not entitled to maintain them after the same was allotted
in the deed of partition dt. 3.3.58, and that the appellant
is entitled to posses-
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sion after demolition of the construction of the portion
found encroached by respondent.
The second appeal filed by the respondent was dismissed
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by the High Court and the judgment and decree of the lower
Appellate Court were affirmed. The respondent filed a review
application alleging that the partition deed dt. 17th March,
1963 was not in fact a deed of partition but merely an
agreement between the parties to partition the property and
there was no actual partition by metes and bounds and that
the respondent continued to remain co-owner and co-sharer of
the property in suit.
The High Court allowed the review application and held
that the mere allotment of shares by the said deed of
partition did not amount to partition by metes and bounds,
set aside the judgment and decree of the lower Appellate
Court and dismissed the suit.
In the appeal to this Court on behalf of the appellant
it was contended that the land in dispute was allotted to
the vendor in accordance with the deed of partition (Ext.
3/1) and shown in map (Ext. 3/2) effected between the
parties on 17.3.58 and this has been mentioned in the
sale:deed (Ext. 1) and, therefore, the judgment and decree
of the High Court is not in accordance with law and should
be set aside.
Dismissing the appeal,
^
HELD: 1. There is no pleading regarding the partition
of the property No. 164 nor there is any pleading to the
effect that the disputed mud wall with the khaprail on it
was ever in possession of appellant’s vendor before the sale
of the land in question in favour of the appellant. [1034H;
1035A-B]
2. On a consideration of the evidence on record it is
established that the alleged encroachment by construction of
kuchha wall and khaprail over it is not a recent
construction as alleged to have been made in May 1961. On
the other hand it is crystal clear from the evidence of PW 1
and DW 1 that the disputed wall with khaprail existed there
on the disputed site for a long time i.e., 28 years before
and the wall and the khaprail have been affected by salt, as
deposed by these two witnesses. The Court Amin’s report 57C
also shows the said walls and khaprail to be 25-30 years old
in its present condition. The High Court rightly came to the
finding that though the partition deed was
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executed by the parties yet there was no partition by metes
and bounds. Moreover, there is no whisper in the plaint
about the partition of the property in question between the
co-sharers by metes and bounds nor there is any averment
that the suit property fell to share of appellant’s vendor
and he was ever in possession of the disputed property since
the date of partition till the date of sale to the
appellant. The appellant has singularly faild to prove the
case as pleaded in the plaint. [1037C-E]
3. Without considering the deposition of Respondent No.
1 as well as the report of the Amin 57C the Additional Civil
Judge wrongly held that the respondent failed to prove that
the wall in dispute and the khaprail existed for the last
more than 12 years before the suit. The Civil Judge further
held on surmises as "may be that the wall and khaprail have
not been raised on May 1961 as is the plaintiff’s case, but
they are recent constructions." This decision of the lower
Appellate Court is wholly incorrect being contrary to the
evidence on record. [1037A-B]
JUDGMENT:
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 755 of
1971
From the Judgment and Order dated 21.12.1970 of the
Allahabad High Court in Second Appeal No. 2757 of 1963.
D.P. Singh, R.P. Singh and D.S. Mehra for the
Appellant.
L.P. Vats and S.P. Panday for the Respondent.
The Judgment of the Court was delivered by
B.C. Ray, J. This appeal by special leave is against
the judgment and decree dated 21st December, 1970 of the
Allahabad High Court in Second Appeal No. 2757 of 1963
allowing the appeal on setting aside the judgment and decree
of the court of appeal below and dismissing the plaintiff’s
suit.
The plaintiff Hari Chand @ Harish Chandra instituted
suit No.610 of 1961 in Court of the Munsif, Agra for
recovery of possession of the disputed land shown in red
colour attached to the plan marked with letters GCDH on
demolition of the unauthorised constructions made thereon by
the defendant alleging inter alia that the plaintiff became
owner in possession of a piece of land measuring 1580 Sq.
ft. situated at Sultanpura, Agra Cantt. designated as No.
164A, and
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shown in the plan attached thereto with letters A, B, C, D,
E, F on the basis of a registered sale deed dated 9th May,
1961, from Ramji Lal owner of the said property. It has been
further alleged that the plaintiff started to build a
compound wall over and around his land after his purchase.
The defendant taking undue advantage of the plaintiff’s
temporary absence from Agra, wrongfully encroached and
trespassed along the whole Northern length of the
plaintiff’s land measuring North to South about 4 ft. and
East to West about 62 1/2 ft. by hurriedly raising a low mud
wall and extending his khaprail thatch over it. It has been
shown in the attached plain in red colour with letters G, C,
D & H. It has been further alleged that inspite of
plaintiff’s objection against the said wrongful encroachment
and trespass the defendant did not pay any heed to it. It
has also been pleaded that the cause of action of the suit
primarily arose on or about 22nd May, 1961 when the
defendant made the encroachment and wrongful constructions
over the plaintiff’s land as well as it arose on 4.6.1961
when the defendant failed to remove the encroachment inspite
of the plaintiff’s notice. Hence this suit has been
instituted.
The defendant filed a written statement denying that
the plaintiff was owner of the land shown by GCDH in the
plan attached to the plaint. The defendant also denied the
correctness of the sale deed dated 9.5.1961. It has been
stated that the land marked GCDH as shown in red colour in
the plan attached to the plaint never belonged to the
plaintiff. The wall and khaprail belonging to the contesting
defendant have been existing at their present site since
time immemorial. The plaintiff’s allegation that the
contesting defendant has constructed the wall and extended
the khaprail (tiled roof) in May 1961 is totally wrong and
baseless. It has been further stated that he did not make
any new construction. The defendant also stated that the
plaintiff illegally tried to remove his kutcha wall and the
tiled roof situate at the place marked G, C, D & H.
Accordingly, on 25.5.1961 the contesting defendant gave a
notice to the plaintiff mentioning the actual facts to which
he gave a wrong reply. The plaintiff’s allegation that the
wall and tiled roof of the defendant encroach upon the
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plaintiff’s land is totally wrong, false and baseless. It
has been stated that the wall and tiled roof belongs to the
contesting defendant and the eaves of tiled roof have been
at the same place since time immemoral where they are at
present. He has been regularly and openly enjoying all the
proprietary rights and rights of adverse possession in
respect of the land aforesaid. Under Sec. 142 of the
Limitation Act, the contesting defendant became the absolute
owner of the land in dispute on the
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basis of the adverse possession as well and he has a right
of easement in the form of flowing of water from the tiled
roof. The kuchha house No.164 belonging to the contesting
defendant has been existing at its site exactly in the same
condition in which it was built by the defendant’s
grandfather. The eaves have been dropped at that very place
and the khaprail has also been existing at that very place.
The contesting defendant did not make any new construction
as alleged by plaintiff in the plaint. Property Nos. 163 and
164 consisted of kuchha houses. The contesting defendant
demolished the Property No. 163 which had come to his share
and got in pucca built. Property No. 164 is a khaprail in
which the contesting defendant is living and was living at
the time of partition. The defendant therefore, states that
the suit is liable to be dismissed.
Third Additional Munsif, Agra after hearing the parties
and also on a consideration and appraisement of the evidence
on record held that the plaintiff was the owner of the
property described in the plaint by the boundaries but the
defendant has not trespassed over his land and has not
constructed a new wall or khaprail. It has been further held
that the plaintiff failed to prove the case of trespass and
encroachment. The suit was accordingly dismissed with costs.
Against this judgment and decree the plaintiff
preferred an appeal being numbered as Civil Appeal 220 of
1963 in the court of District Judge, Agra. This appeal was
allowed by the IInd Addl. Civil Judge, Agra holding that the
defendant failed to prove that the wall in dispute and the
khaprail existed for the last more than 12 years before the
suit, even though it was not proved that the khaprail had
been raised in May 1961 as was the case of the plaintiff,
but they are recent construction. It was further held that
even if the defendant’s wall and khaprail are old ones he is
not entitled to maintain them after the same was allotted to
Ramji Lal in the deed of partition dated 3.3.1958. It has
been further held that the plaintiff is entitled to
possession after demolition of the construction on the
portion found encroached by defendant. The judgment and
degree of the court below was set aside.
Against this judgment and decree Second Appeal No. 2757
of 1963 was filed before the High Court at Allahabad. This
appeal was dismissed by judgment and order dated 8.9.1963
and the judgment and decree of the lower appellate court was
affirmed.
A review application No. 269 of 1969 for the review of
the said
1034
judgment was filed before the High Court on the ground
that the alleged partition deed dated 17th March, 1963 was
not in fact a deed of partition but merely an agreement
between the parties to partition the property and there was
no actual partition by metes and bounds. The defendent
continued to remain co-owner and co-sharer of the property
in suit. The decree passed in the said suit is neither
possible nor permissible under the law. This review
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application was allowed by judgment and order dated December
9, 1970 setting aside the judgment dated 8th September, 1969
and directing the appeal to be listed for further hearing.
Accordingly on 21.12.1970 the appeal was heard by the
learned judge who held that the mere allotment of shares by
the said deed of partition did not amount to partition by
metes and bounds. The appeal of the defendant was allowed
and the judgment and decree of the lower appellate court
were set aside and the suit was dismissed.
Against this judgment and decree the instant appeal on
special leave was filed by the plaintiff. The learned
counsel for the plaintiff tried to urge before us that the
land in dispute marked as GCDH in the plan was allotted to
the share of the plaintiff’s vendor Ramji Lal in accordance
with the deed of partition (Ext. 3/1) and shown in map (Ext.
3/2) effected between the parties on 17.3.1958 and this has
been mentioned in the sale deed (Ext. 1) executed by Ramji
Lal, one of the co-sharers of the property. It has,
therefore, been submitted that the judgment and decree of
the High Court is not in accordance with law and it should
be set aside. This contention advanced on behalf of the
plaintiff cannot be sustained in as much as there is no
pleading in the plaint that the disputed property shown in
red colour and marked as GCDH fell within the allotment of
the plaintiff on the basis of the deed of partition executed
in 1958 between the plaintiff’s vendor Ramji Lal and his two
other brothers-Daulat Ram and Bishambhar Nath. It was also
been not pleaded that the disputed mud wall and the Khaprail
over it were all along in possession of his vendor before
the sale of the said land measuring 1580 Sq. ft appertaining
to Property No. 164A. The plaintiff’s case is that he got
possession of the land he purchased including the suit land
on May 9, 1961 and the defendant illegally trespassed on the
said portion of land marked in red colour in the plan
attached to the plaint and hurriedly constructed a low mud
wall and extended his khaprail thatch over it on May 22,
1961 and so the suit for recovery of possession of this land
on demolition of the unauthorised construction put up by the
defendant was brought. There is no pleading regarding the
partition of the Property No. 164 between
1035
Ramji Lal and his two brothers nor there is any pleading to
the effect that the disputed mud wall with the khaprail on
it was ever in possession of his vendor Ramji Lal before the
sale of the land in question in favour of the plaintiff. On
the other hand, the defendant strongly and categorically
stated in his written statement that the mud wall along with
khaprail were in existence there for a long time and he was
living in the said khaprail to the knowledge of the
plaintiff’s vendor. He also denied that he made any new
construction of the wall on 22nd May, 1961 as alleged by the
plaintiff. He also stated that the wall and the tiled roof
belonged to the defendant and the existence of the tiled
roof had been at the same place in the same condition for a
long time long before. the partition deed made in 1958. The
defendant also stated in his written statement that more
than twenty years before private parition took place amongst
the defendant and his brothers Bish ambar Lal and Ramji Lal.
Property No. 163 and 164 had come to his share. He
demolished the Property No. 163, and he made pucca
construction therein. Property No. 164 is khaprail wherein
the contesting defendant is living and was also living at
the time of partition.
The plaintiff has examined three witnesses including
himself and his vendor Ramji Lal. P.W. 1 Ramji Lal stated in
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his deposition that the portion shown in red in plan No.
36/4 Ka came to his share and defendant Daulat Ram was never
in possession of this red portion after partition. It was
also his evidence that at the time of sale, wall belonging
to Daulat Ram did not exist over the portion showed in red
colour. In cross-examination he said that there was a tiled
shed towards the north of the land in dispute. Daulat Ram
used to live therein. All these three portions had old
tiles. There was a chhappar over the portion shown in red.
Tiled roof was made after the fire accident. It happened
about 28 years back. The land in dispute has been affected
by salt and the adjoining kuchha walls have also been
affected by salt. P.W. 2 Harish Chandra, the plaintiff,
stated in his evidence that he was not present at the time
encroachment was made by constructing a wall. Some persons
told him about the extension of the wall. On
crossexamination he stated that pucca rooms belonging to
Daulat Ram stand at No. 163. He cannot say if they have been
in existence 15-20 years. It is the evidence of defendant
Daulat Ram, D.W. 1, that the wall in dispute has been in its
place since the time he attained the age of discretion.
There has been tiled roof for the last about 28 years back.
Before that there was a thatched shed. It is also his
evidence that his mother effected partition about 28 years.
The wall in dispute was in existence when this partition was
effected. It has been existing
1036
in the same condition since then. It is also his evidence
that his mother got the partition effected 28 years back. He
also stated in crossexamination that he did not affix his
thumb impression on the plan prepared at the time the
partition deed was executed. No measurements were done at
the time the plan was prepared. D.W. 2 Khunni Lal a retired
overseer stated in cross-examination that he had given his
opinion that the wall in dispute belonged to Daulat Ram and
that the flow of its water on the southern side was
reasonable.
On a consideration of these evidences it is quite clear
that the disputed kachha wall and the khaprail over it is
not a new construction, but existed for over 28 years and
the defendant has been living therein as has been deposed to
by Ramji Lal vendor of the plaintiff who admitted in his
evidence that the land in dispute and the adjoining kachha
walls had been affected by salt and the chhappar over the
portion shown in red was tiled roof constructed about 28
years back. This is also supported by the evidence of the
defendant, D.W. 1, that the wall in dispute was in existence
when the partition was effected i.e., 28 years before. On a
consideration of these evidences the Trial Court rightly
held that the defendant had not trespassed over the land in
question nor he had constructed a new wall or khaprail. The
trial court also considered the report 57C by the court Amin
and held that the wall in question was not a recent
construction but it appeared 25-30 years old in its present
condition as evident from the said report. The suit was
therefore dismissed. The lower appellate court merely
considered the partition deed and map Exts. 3/1 and 3/2
respectively and held that the disputed property fell to the
share of the plaintiff’s vendor and the correctness of the
partition map was not challenged in the written statement.
The court of appeal below also referred to Amin’s map 47 A
which showed the encroached portion in red colour as falling
within the share of plaintiff’s vendor, and held that the
defendant encroached on this portion of land marked in red
colour, without at all considering the clear evidence of the
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defendant himself that the wall and the khaprail in question
existed for the last 28 years and the defendant has been
living there all along. P.W. 1 Ramji Lal himself also
admitted that the wall existed for about 28 years as stated
by the defendant and the kachha walls and the khaprail has
been effected by salt. The lower appellate court though held
that P.W. 1 Ramji Lal admitted in cross-examination that
towards the north of the land in dispute was the khaprail
covered room of Daulat Ram in which Daulat Ram lived, but
this does not mean that the wall in dispute exists for the
last any certain number of years, although it can be said
that it is not a
1037
recent construction. Without considering the deposition of
defendant No. 1 as well as the report of the Amin 57 C the
IInd Addl. Civil Judge, Agra wrongly held that the defendant
failed to prove that the wall in dispute and the khaprail
existed for the last more than 12 years before the suit. The
Civil Judge further held on surmises as "may be that the
wall and khaprail have not been raised in May, 1961 as is
the plaintiff’s case, but they are recent constructions."
This decision of the court of appeal below is wholly
incorrect being contrary to the evidences on record.
On a consideration of all the evidences on record it is
clearly established that the alleged encroachment by
construction of kuchha wall and khaprail over it is not a
recent construction as alleged to have been made in May
1961. On the other hand, it is crystal clear from the
evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that the
disputed wall with khaprail existed there in the disputed
site for a long time, that is 28 years before and the wall
and the khaprail have been affected by salt as deposed to by
these two witnesses. Moreover the court Amin’s report 57 C
also shows the said walls and khaprail to be 25-30 years old
in its present condition. The High Court has clearly came to
the finding that though the partition deed was executed by
the parties yet there was no partition by metes and bounds.
Moreover there is no whisper in the plaint about the
partition of the property in question between the co-sharers
by metes and bounds nor there is any averment that the suit
property fell to the share of plaintiff’s vendor Ramji Lal
and Ramji Lal was ever in possession of the disputed
property since the date of partition till the date of sale
to the plaintiff. The plaintiff has singularly failed to
prove his case as pleaded in the plaint.
In the premises aforesaid the appeal fails and it is
dismissed. There will however be no order as to costs.
A.P.J. Appeal dismissed.
1038