RSA No.2651 of 1987 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No.2651 of 1987 Date of Decision: 5.3.2010 Smt. Soni Bai ...Appellant Versus State of Haryana and anothers .....Respondents 1. Whether Reporter of local papers may be allowed to see the judgment- Yes. 2.To be referred to the Reporters or not- Yes. 3. Whether judgment should be reported in the diges-Yes. Coram: Hon'ble Mr. Justice Alok Singh Present: Shri Jaswant Jain, Advocate for appellant. Shri Deepak Girhotra, AAG, Haryana. Alok Singh, J. 1. This is the second appeal filed by plaintiffs assailing the judgment and decree dated 23.4.1987 passed by First Appellate Court/Additional District Judge, Narnaul thereby allowing the first appeal setting aside the judgment and decree dated 20.3.1984 passed by Trial Court and further dismissing the suit of the plaintiff for relief of possession. 2. Brief facts of the present case are that plaintiff sought possession of land measuring 8 Biswas Khasra No.2853; the husband of the plaintiff Kishan Dass had migrated from West Pakistan and filed claims in respect of the properties left by him in West Pakistan in lieu of which he was allotted 5 standards acres, ¼ unit land in Narnaul and allotment was confirmed vide sanand allotment dated 19.4.1961 issued by Assistant Settlement Officer, Jalandhar. Subsequently allotment in favour of Kishan Dass was cancelled for non payment of 40% premium. On appeal filed by Kishan Dass assailing the RSA No.2651 of 1987 2 cancellation of allotment, Appellate Authority i.e. Assistant Registrar- cum-Managing Officer Haryana vide order dated 25.4.1967 allowed the appeal and set aside the cancellation. Thereafter on restoration of allotment Kishan Dass died and could not obtain possession over 8 Biswa land/disputed property. Health Department Haryana included that 8 Biswa land in the boundry of Civil Hospital illegaly recently hence notice under Section 80 CPC was also served. 3. The defendant in the written statement contested the suit stating that they had become owner by virtue of their adverse possession; Hospital was constructed in 1970 and inaugurated in 1973; suit is bad for want of mandatory notice under Section 80 CPC. The main averments of the plaint has been simply denied for want of knowledge. 4. Learned Trial Court has framed following issues:- 1. Whether the plaintiff is the owner of the land in dispute. If not, its effect?OPP. 2. Whether the defendants have become the owner of the suit land by way of adverse possession?OPD. 3. Whether the sit is bad for want of notice under Section 80 CPC?OPD. 4. Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD. 5. Whether the suit is bad for misjoinder and non-joinder of necessary parties?OPD. 6. Relief. 5. Learned Trial Court decreed the suit of the plaintiff by holding plaintiff as owner of the property. It was further observed by the learned Trial Court that defendant has not matured any title on the basis of adverse possession. In appeal First Appellate Court has RSA No.2651 of 1987 3 reversed the findings of the fact recorded on the question of ownership of the plaintiff. First Appellate Court further observed that plea of adverse possession taken by defendant was unsustainable. 6. I have learned counsel for the parties and perused the record. 7. In the present appeal following substantial question of law arise:- 1. As to whether title of the plaintiff stands proved, the moment defendant takes plea of adverse possession against the plaintiff. 2. As to whether any evidence filed in appeal under Order 41 Rule 27 CPC can be relied upon without formal proof thereof and without any specific pleading? 8. Substantial Question of Law No.1:- (i)Plaintiff-appellant has pleaded in para No.1 to para No.4 of the plaint about the source of the plaintiff's title. Defendant in their written statement in reply to para No.1 to 4 of the plaint state that para No.1,2,3,4 of the plaint are wrong and are denied for want of knowledge. The only plea taken in written statement is that defendants have matured title by way of adverse possession. (ii)Rule 5 of Order 8 CPC provides that denial should be specific. In my humble opinion simple denial for want of knowledge is no denial. Hence, statement of the plaint without specific denial shall be presumed to be true and uncontroverted. (iii)Moreover, factum of initial allotment in favour of Kishan Dass by Coustodian Department on 19.4.1961; cancellaton of allotment for want of 40 % premium; Appellate Authority judgment dated 25.4.1967 allowing the appeal and restoration of allotment has not RSA No.2651 of 1987 4 been denied and challanged by the defendant/respondent. Even before First Appellate Court neither allotment, nor its cancellation nor its restoration was challanged by the defendant. (iv)This is the settled position of law that plea of adverse possession is always taken against the true owner. Plea of adverse possession can not be taken against the unknown owner. Unless possession is hostile within the knowledge of true owner, there cannot be any adverse possession. In my humble opinion if in a suit one party claims title on the basis of adverse possession, title of opposite party stands proved. And in that circumstances burden lies on the party, claiming adverse possession, to prove it by congent evidence. (v)In the present case in view of pleadings of the plaintiff; no specific denial by the defendants in the written statement and in view of plea of adverse possession by the defendants title of the plaintiff stands proved. Substantial question of law No.1 is answered in favour of the appellant/plaintiff. 9. Substantial Question of Law No.2:- (i)I have refered pleading taken by parties herein before. Defendants have not amended the written statement claiming that Sh. Kishan Dass was allotted land in Khasra No.5215 in lieu of disputed land. In civil suit pleadings have important role to play. No admission in pleading can ordinary be withdrawn. No evidence and no argument is permissible beyond pleadings. Even Court cannot set up third case beyond the pleadings of the parties. During the first appeal defendant by invoking Rule 27 Order 41 CPC placed PARCHI of alleged allotment in favour of Kishan Dass in Khasra No.5215 in lieu of disputed land. Counsel for the plaintiff/appellant argued before the First Appellate Court that alleged PARCHI is forged and fabricated but of no avail. No witness was examined by the RSA No.2651 of 1987 5 defendant to prove PARCHI, no order of Competent Authority was filed permitting the exchange of land, no opportunity was accorded to the plaintiff to rebutt the evidence filed by the defendant in First Appeal under Oder 41 Rule 27 CPC. Scope of Rule 27 Order 41 is limited to permitting the applicant to produce additional evidence on record, if condition of Rule 27 Order 41 is available to the applicant. Permission to produce the additonal evidence during appeal does not mean that additional evidence produced shall be relied upon by the Court irrespective of the fact, it is not proved in accordance with law or evidence produced is not admissible in evidence. Production of additional evidence in appeal is aloways subject to proof, admissibility and reliability. (ii)In my humble opinion PARCHI of allotment does not seem to be authantic document. No order of any Competent Authority is filed to show that Kishan Dass was allotted Khasra No.5215 in exchange of disputed land. PARCHI of allotment cannot be read in evidence without formal proof thereof. Moreover, there is no pleading of the effect that at any point of time exchange was ordered and Kishan Dass was given land of Khasra No.5215 in exchange of disputed land. No opportunity was granted to the plaintiff to rebutt this additional evidence filed in first appeal. First Appellate Court did not record any finding on the objecton of the plaintiff that PARCHI allotment is fabricated and forged. Substantial question of law No.2 is answered in favour of appellant/plaintiff. 10. Now question arises as to what relief should be granted to the plaintiff, in lieu of the fact disputed property is now in the use of Civil Hospital? 11.As per observations made herein before plaintiff is owner of the property in dispute; Claim of adverse possession is not proved. RSA No.2651 of 1987 6 Ordinarly plaintiff is entitled for the relief for possession as sought. However, keeping in mind that property is being used for the Hospital purpose relief can be moulded by this Court. Order 7 Rule 7 CPC reads as under:- "Relief to be sepcifically stated:- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court my think just to the same extend as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement." From the prusal of Order 7 Rule 7 CPC it can safely be held that Court can grant such relief as Court deems fit over if such relief is not specifically asked for. 12. Undisputedly, property was not acquired. It ought to have been acquired by the defendants before constructing Hospital. Article 300-A of the Constitution of India is akin to fundamental right. None can be deprived from his property otherwise than in accordance with law. 13. In my humble opinion in the peculiar facts and circumstances of the case it would be justified to direct the defendant to pay compensation to the plaintiff for the disputed land after calculating the same as per market value fixed by the Collector in the year 1975 for the purpose of stamp duty to residential area. Defendants shall also pay interest thereon at the rate of 9% per annum from 1.4.1975 to till the time of actual payment. Entire payment is to be RSA No.2651 of 1987 7 made within six months from today, failing which plaintiff would be entitled for the relief for possession. 14. Appeal is allowed in aforesaid terms. Plaintiff shall be paid cost of the litigation in toto. (ALOK SINGH) 5.3.2010 JUDGE sharmila