R.S.A. No. 709 of 1986 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 709 of 1986 Date of Decision: December 9, 2011 Dr. Sita Ram (dead) through his LRs ...Appellant. Versus Ashok Kumar (dead) through his LRs and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Gaurav Mohunta and Ms. Sonia Jain, Advocates for the appellant. Mr. Vinod Kumar, respondent No.2 in person. Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for respondents No.3 and 4. Mr. Arun Nehra, Advocate for respondent No.5. AJAY KUMAR MITTAL, J. Being unsuccessful before the courts below, the plaintiff has approached this Court by way of present regular second appeal against the judgment and decree dated 23.11.1985 passed by the first appellate court and the trial court dated 8.3.1982 whereby the suit of the plaintiff for separate possession, was dismissed. 2. Put succinctly, the facts of the case are that the plaintiff filed a suit for separate possession of his 1/2 share by effecting partition of the house situated in Dewane Street Nabha (hereinafter referred to R.S.A. No. 709 of 1986 -2- as 'the suit property') as shown in the site plan attached with the plaint. It was pleaded that the suit property was owned by Kanwar Sain and he had three sons, namely, Hari Ram, Bhagwan Dass and Dr. Sita Ram (plaintiff). On the death of said Kanwar Sain, the suit property devolved upon the plaintiff and his brothers in equal shares. One of the brothers, namely, Hari Ram bequeathed his 1/3rd share in the suit property to his remaining two brothers in equal shares who became owners of the suit property to the extent of one half share each. It was further pleaded that Bhagwan Dass died and defendants No.1 to 6 being his legal heirs were co-sharers/co-owners to the extent of one half share in the suit property. The plaintiff wanted to partition the suit property by metes and bounds and he filed the suit, as mentioned above. 3. Upon notice, defendant No.1-Ashok Kumar contested the suit by filing a written statement and raising various preliminary objections therein. It was pleaded that father of defendant No.1 was the sole owner of the suit property and the plaintiff and Hari Ram had no right in it. The suit property was mortgaged by Kanwar Sain with Dharamarth Bank Nabha and the mortgage money was paid by Bhagwan Dass from his salary who was in possession of the suit property having been subrogated as a mortgagee. It was further pleaded that the mortgage was not redeemed by the plaintiff and the time for redemption had expired. The defendant No.1 and other heirs of Bhagwan Singh were in possession as owners of the suit property. Defendant No.1 claimed that he was in adverse possession of the suit property for the last more than 30 years. It was also pleaded that said Bhagwan Dass died and on the basis of Will dated 28.2.1969, R.S.A. No. 709 of 1986 -3- defendant No.1 and Sharda were his legal heirs. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. 4. Defendant No.2 filed a written statement admitting the claim of the plaintiff whereas defendant No.3 died during the pendency of the suit and defendants No.4 to 6 were proceeded against ex parte. 5. From the pleadings of the parties, the trial court framed the following issues:- “1. Whether the plaintiff is co-sharer of the house in dispute? If so what is his share? OPP 2. Whether the suit is not within time? OPD 3. Whether the suit is properly valued for purposes of court fee and jurisdiction? OPD 4. Whether the suit is bad for mis-joinder and non- joinder of parties? OPD 5. Whether Ashok Kumar has become the owner by adverse possession of the house in dispute as alleged in para No.2? OPD 5A. Whether Bhagwan Dass has paid the mortgage money of Rs.2788.3 Annex to the State Bank and was subrogated as a mortgagee? OPD 5B. Whether defendant is entitled to Rs.10,000/- as improvement? If so its effect? OPD 5C Whether the right of redemption is time barred?OPD 5D Whether the defendant can claim the R.S.A. No. 709 of 1986 -4- improvement without payment of court fee? OPP 5E. Whether the amended written statement is not in accordance with the order of the Court? OPP 6. Relief.” 6. The trial court took issues No.1, 2, 5A and 5C together being interconnected and on appreciation of the oral as well as documentary evidence led by the parties decided the said issues in favour of the defendants holding that after the death of Bhagwan Dass, they being his legal heirs were in possession of the suit property as mortgagees and since the period of limitation for redemption had expired, as such, they had become owner of the same. Therefore, the plaintiff had got no interest in the suit property claiming to be a co- sharer. It was further held that since Bhagwan Dass paid the mortgage amount and got the house redeemed, he was subrogated as mortgagee. Issues No.3 and 4 were decided in favour of the plaintiff and against the defendants holding that the suit was properly valued for the purposes of court fee and jurisdiction and that the suit was not bad for misjoinder and non-joinder of parties. Further, the trial court decided issue No.5 in favour of the defendant holding that Ashok Kumar became the owner of the suit property by way of adverse possession. Issues No.5B and 5C were decided against the defendants whereas issue No.5E was decided against the plaintiff. Accordingly, the trial court vide judgment and decree dated 8.3.1982 dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiff took the matter in appeal and the lower appellate court vide judgment and decree dated 23.11.1985 affirmed the findings recorded by the trial court except on issue No.1 and R.S.A. No. 709 of 1986 -5- dismissed the appeal. The finding relating to the plaintiff not being co- sharer, however, was reversed while adjudicating issue No.1. In other words, the plaintiff was held to be co-sharer with his brother Bhagwan Dass and after the death of Bhagwan Dass with the defendants who are the legal heirs of deceased Bhagwan Dass. 7. Learned counsel for the parties have been heard at length. Besides challenging the findings recorded by the courts below on the ground of result of misreading of evidence, the arguments have also been raised on various legal issues. According to the learned counsel for the appellant, the appeal raises the following substantial questions of law:- “1. Whether the impugned judgments and decrees are perverse in law because the learned courts below considered inadmissible evidence in the form of documents Ex.D-2 to D-6 and Ex.D-7 which documents have come into existence after institution of the suit on 28.4.1975? 2. Whether the impugned judgments are perverse because the learned courts below relied upon documents Ex.D-2 to D-6 and D-14 to D-27, which relates to payment of house tax/property tax, and are not relevant to support the plea of adverse possession? 3. Whether the courts below were justified in law to frame issue No.5 and adjudicate the same when the respondent-defendant Ashok Kumar R.S.A. No. 709 of 1986 -6- had not pleaded ownership by adverse possession in the amended written statement dated 19.1.1978?” 8. Mr. Gaurav Mohunta, learned counsel for the appellant supporting the findings of the courts below on issue No.1 submitted that the property in dispute was the individual property of L. Kanwar Sain who died in 1928 and redemption had taken place in 1925, i.e. during his life time. Further, the lower appellate court had reversed the findings on issue No.1 and had held the plaintiff to be co-sharer and the said finding has not been challenged either by filing cross appeal or cross objections by the defendants. Relying upon the judgment of the Apex Court in Choudhary Sahu (dead) by LRs v. State of Bihar and Surajballi Shah etc. v. State of Bihar and others, AIR 1982 SC 98, it was urged that in the absence of cross objections or cross appeal having been filed, no challenge can be laid to such findings and even resort to Order 41 Rule 33 of the Code of Civil Procedure (hereinafter referred to as “the Code”) was legally not permissible. 9. Learned counsel argued that the principles of Transfer of Property Act, 1882 (in short “the Act”) were not applicable as held in Meham Singh v. Prem Kumar, AIR 1955 Pepsu 145, Smt. Dura Devi v. Parmeshwari Dass, 1970 Current Law Journal 482, Shri Jamiat Singh v. State of Punjab, 1984 PLJ 256 and Ram Kishan v. Sheo Ram, 2008(1) PLR 1 (FB). On the strength of judgment reported in Bhag Singh v. Mt. Santi, AIR 1952 Pepsu 74, it was contended that the principle of subrogation contained in Sections 91 and 92 of the Act would not be attracted in view of the following observations noticed R.S.A. No. 709 of 1986 -7- therein:- “I may also mention that even if the defendants did redeem the previous mortgages they could not be subrogated to the rights of the mortgagees. According to S. 92 of the T.P. Act, the principles of which apply to this State as they do in the rest of India where the Act was not in force, the right of subrogation could be claimed by a person referred to in S. 91 who redeems a mortgage. Section 91 lays down that besides the mortgagor the following persons may redeem or institute a suit for redemption of the mortgaged property, viz. (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in or upon the right to redeem the same; (b) any surety for the payment of the mortgage-debt or any part thereof; and (c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.” 10. According to the learned counsel, the defendants did not fulfil any of the aforestated conditions and, therefore, redemption did not confer any right on them. 11. It was next submitted that the findings on issues No.2, 5, 5A and 5C are untenable being based on misreading of evidence and, thus, perverse and legally unsustainable. The findings are result of R.S.A. No. 709 of 1986 -8- consideration of inadmissible evidence and cannot be assigned any legal value. It was also urged that diary entries (Ex.D11 to Ex.D13) are not admissible in evidence under Section 34 of the Evidence Act as they are not books of account kept in the ordinary course of business. It being written in a single sitting, the same loses its significance. Reliance had been placed on CBI v. V.C. Shukla, 1988(3) SCC 410 and State of Bihar v. Radha Krishan Singh, 1983(3) SCC 118. Further, even Ex.D2 to Ex.D6 which were electricity bills and payment of municipal taxes could not be relied upon being payments made after the institution of the suit, i.e. 28.4.1975. Ex.D14 to Ex.D27 also had no evidentiary value in law. Elaborating his submission by making reference to documentary evidence, he drew the attention of the Court to Ex.P1 (Will dated 1.12.1953 executed by Hari Ram), Ex.D30 (mortgage deed), Ex.D31, Ex.D32 (demand notice). Learned counsel referred to the oral testimony of DW3 (Om Prakash) and PW5 (Dr. Sita Ram- plaintiff) during the course of arguments and pointed out that the trial court has not appreciated the Will of Hari Ram (Ex.P1) wherein it was provided as under:- (a) According to it, all were to use the house with the consent of the other; (b) that Hari Ram along with Bhagwan Dass have paid the mortgage money; (c) Hari Ram was also residing in this House in 1943-44; (d) that 1/3rd share shall devolve upon two brothers. 12. In respect of issue No.5, the case of the appellant was that the plea of adverse possession having been given up in the amended R.S.A. No. 709 of 1986 -9- written statement, issue No.5 could not have been framed and any evidence in that regard was irrelevant and it demolishes the case regarding adverse possession. The learned counsel further argued that the findings of the courts below that defendant No.1 Ashok Kumar had become owner by adverse possession while adjudicating issue No.5 was beyond pleadings as per the amended written statement and was also contrary to well settled principles, on the strength of the judgment of the Hon'ble Apex Court in Pratarai N. Kothari v. John Braganza 1999(4) SCC 403 and Bonder Singh v. Nihal Singh, AIR 2003 SC 1905. The evidence being beyond the pleadings could not be taken into consideration by the courts below. 13. It was also vehemently contended that the ingredients of adverse possession have to be established. A person who claims adverse possession must show on what date he came into possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimants and how long his possession continued. He must also show whether his possession was open and undisturbed. Reliance was placed on the judgments reported in Ganda Singh v. Ram Narain, 1959 PLR 374, Parwati Bai v. Sonabai, (1997) 1 PLR 712 (SC) and Deva (dead) through LRs v. Sajjan Kumar, AIR 2003 SC 3907. 14. Plethora of judgments was relied upon to buttress his submissions that co-sharer has a right to use the property like other co- sharer and mere payment of municipal taxes, electricity bills cannot form the basis for adverse possession. Support was gathered from judgments reported in Ram Chander v. Bhim Singh, 2008(3) PLR 747, R.S.A. No. 709 of 1986 -10- Kishori Lal v. Mst. Man Bai, 1960 PLR 499, Kundan (deceased) by LR v. Hari Ram, 1988(1) RLR 376, Mst. Bui v. Gurdeep Singh, 1976 PLR 449, Ram Chandra Naidu v. Sechachala Naidu 1996(1) RCR 112 (Madras), Smt. Biro and others v. Amar Singh and others, 1996 (1) PLR 386, Sadasivam v. K. Doraisamy, AIR 1996 SC 1724, Kuldip Mahaton and others v. Bhulan Mahato (Dead) by LRs and others, (1995) 2 SCC 43, Janaki Pandyam v. Ganeshwar Panda 2001(1) RCR 748 (SC), Govindmal v. R. Perimal Chettiar 2007(3) RCR 569 (SC), Premendu Bhusan Mondal v. Sripati Ranjan Chakravarty, AIR 1976 Cal. 55, Veerabhadrappa and another v. Smt. Gangamma and another, AIR 2003 Karnataka 348, Deepak S. Gulalkari and others v. Pundikrao C. Bangar and others, AIR 2004 Bombay 318, Gurdial Kaur v. Inderjit Singh, 2006(2) PLR 320, Hemaji Waghaji v. Bhi Khabhai JT 2008(10) SC 562 and Bonders and another v. Hem Singh JT 2009(6) SC 616. 15. According to him, Bhagwan Dass had also executed a Will on 28.2.1969 (Ex.D10) and adverse possession did not stand established as period of 12 years from 1969 had not expired. Further, the admitted written statement filed by defendant No.2 substantiated the case of the plaintiff-appellants and the courts below ought to have decreed the suit. 16. Controverting the submissions made by learned counsel for the appellant, Mr. Arun Nehra, learned counsel appearing for respondent No.5 submitted that the finding recorded by the appellate court on issue No.1 to the effect that the property in dispute was individual property of L. Kanwar Sain and the plaintiff was co-sharer R.S.A. No. 709 of 1986 -11- was legally unsustainable and the appellate court had erred in reversing the well founded analysis of the evidence on issue No.1 made by the trial court. He urged that the findings of the lower appellate court that the plaintiffs are co-sharers can be agitated by respondent on any ground even without filing any appeal or cross objections, in view of provisions of Order 41 Rule 33 of the Code as authoritatively held in S. Nazeer Ahmed v. State Bank of Mysore and others, 2007(1) RCR 705 (SC). Support was also gathered from the decision in Kwdia v. Rameshwar Dass and others, 2009 (3) RCR 672. 17. Continuing his submissions, learned counsel for the respondent argued that the house in dispute was mortgaged by Kanwar Sain and Shadi Ram jointly in 1910 with Dharmarth Bank, Nabha which was redeemed by Bhagwan Dass in 1925 when he paid the entire mortgage money. Under the circumstances, the house was ancestral property and Bhagwan Dass had an interest therein. Referance was made to Ex.P1 wherein the property in dispute was described as ancestral house and Ex.D30 (mortgage deed) which depicted it was ancestral house. Further L. Kanwar Sain was of very meager means and was not in a position to redeem the house. House was going to be auctioned in 1924 (Ex.D32) and Rs.850/- was paid by Bhagwan Dass vide Ex.D31 which is acknowledged therein. The balance amount was also paid by him as is discernible from Ex.D11 to Ex.D13. There is no other iota of evidence to show as to who else discharged the mortgage liability. Dr. Sita Ram was doing his MBBS in 1924 as has been admitted by Dr. Sita Ram (PW5) in his cross-examination. Dr. Sita Ram never stayed in this house and the said fact finds mention in Will Ex.P1 R.S.A. No. 709 of 1986 -12- of Hari Ram. Support was also drawn from oral testimony of Ashok Kumar defendant No.1 (DW12) and documentary evidence, i.e. Ex.D2 to Ex.D6 and Ex.D14 to Ex.D27 besides diary entries Ex.D11 to Ex.D13. Learned counsel relied upon the judgments in Valliama Champaka Pillai v. Sivathanu Pillai and others, AIR 1979 SC 1937, Shri Jamiat Singh v. State of Punjab, 1984 PLJ 256 and Janardhan Bhagwan Dass v. Sham Lal Nand Lal and others, AIR 1959 East Punjab 170 in support of his submissions. 18. According to him, with reference to material on record, the property in question was ancestral property and was not self acquired property of L. Kanwar Sain and the amount of redemption having been paid by Bhagwan Dass, he stepped into the shoes of Dharmarth bank and became subrogee and by virtue of Sections 91 and 92 of the Act, the property interest devolved upon him. He referred to Division Bench judgment of this Court in Ganeshi Lal v. Joti Parshad and another, AIR 1949 East Punjab 254 wherein it had been held that the Transfer of Property Act though is not in force in the State of Punjab and Sections 82, 92 and 100 are not in terms applicable, but the principles underlying those sections have been applied as rules of justice, equity and good conscience. The mortgage being simple mortgage and the limitation for redemption having expired, therefore, Bhagwan Dass had become owner by adverse possession and the property after his demise devolved upon defendant No.1-Ashok Kumar by succession through Will dated 28.2.1969 (Ex.D10). 19. It was urged that the plea of adverse possession was taken by defendant No.1 in para 2 of the unamended written statement and in R.S.A. No. 709 of 1986 -13- view of additional plea No.3 in amended written statement, it could not be said that there was no such plea and issue No.5 had been rightly framed. Alternatively, it was submitted that even if it is taken that the plea of adverse possession was not specified in so many words, but in view of para 2 of unamended written statement, the same could not be ignored. Support was gathered from the judgment of the Apex Court in Bishandayal and Sons v. State of Orissa and others, AIR 2001 SC 544 with reference to para 16 thereof which reads thus:- “16. There can be no dispute to the proposition that a notice under S. 80 can be waived. But the question is whether merely because in the amended written statement such a plea is not taken it amounts to waiver. This contention was argued before the appellate Court. Even otherwise we find that in the suit itself issue No.4 had been raised as to whether or not there was a valid and appropriate notice under S. 80. Such a point having been taken in the original written statement and an issue having been raised, it was not necessary that in the amended written statement such a plea be again taken. On behalf of the respondents, reliance has been placed on the case of Gangappa Gurupadappa Gugwad v. Rachawwa, reported in AIR 1971 SC 442, wherein it has been held that where the plaintiff's cause of action is against a Government and the plaint does not show that notice under S. 80 was served, it would R.S.A. No. 709 of 1986 -14- be duty of the Court to reject the plaint. In this case the original notice was only in respect of a claim under the plaint as it originally stood. That claim was on the basis that there was a concluded contract and that the appellants had already acquired rights in the Mill and the lands. As has been fairly conceded those reliefs were not maintainable and were given up before the appellate Court. The amended plaint was on an entirely new cause of action. It was based on facts and events which took place after the filing of the original plaint. It was a fresh case. Now the claim was for specific performance of the agreement alleged to have been entered into on 29th December, 1978. Admittedly no notice under S. 80 C.P.C. Was given for this case. As there was an issue pertaining to notice under S. 80, the trial Court should have dealt with this aspect. The trial Court failed to do so. It was then pressed before the appellate Court. In our view the finding in the impugned judgment that the suit based on this claim was not maintainable is correct and requires no interference. If a new cause of action is being introduced a fresh notice under S. 80, C.P.C. would be required to be given. The same not having been given, the suit on this cause of action was not maintainable.” 20. It was also submitted that issue No. 5 having been framed R.S.A. No. 709 of 1986 -15- and evidence led, the plea now sought to be raised was not agitated by the plaintiffs before the lower appellate court. It cannot be thrown out at this stage and no objection is permissible in view of judgments in Kunju Kesavan v. M.M. Philip and others, AIR 1964 SC 164 and 2008(1) RCR (Civil) 192. 21. It was next pointed out that the admitted written statement of defendant No.2 shall not bind defendant No.1 in view of law laid down in Parbhudas Girdhardas v. Lallubhai Khushal, AIR 1932 Bombay 117 wherein it has been laid down as under:- “The general rule is that an admission can only be given in evidence against the party making it and not against any other party. There are exceptions to this rule, which are laid down under Ss. 18 to 20, Evidence Act. An admission made by defendant 1 could have been proved against him, and similarly and admission of defendant 2 could have been proved against him.” 22. Reliance was also placed on Chandi Avira v. Thomman Varkey and others AIR 1951 Travancore-Cochin 109. 23. Alternatively, it was urged that if it is not the ancestral property then no right vested to redeem it, and in that situation Bhagwan Dass did not step into the shoes of mortgagee bank and had become trespasser and owner by adverse possession as held in Jiwan Singh and another v. Des Raj and others, AIR 1982 (NOC) 306 in the following terms:- “Where a person who is not entitled to redeem the R.S.A. No. 709 of 1986 -16- mortgage pays the mortgage money and gets into possession of the property, he does not thereby acquire the rights and liabilities of the mortgagee. His possession would not be of