R.S.A.No. 3333 of 1985 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No. 3333 of 1985 Date of decision: 1.12.2011. Dilbag Rai Appellant Versus Mohinder Singh ...Respondent CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA. Present: Mr.Ramanjit Singh, Advocate for the appellant. Mr.Sanjay Tangri, Advocate for the respondent. ***** G.S.SANDHAWALIA, J. The present appeal has been filed by the unsuccessful plaintiff whereby his suit for permanent injunction restraining the defendants from interfering in the peaceful enjoyment and making any encroachment regarding vacant plot marked as ABCDEFGH was decreed vide judgment and decree dated 31.10.1980 and the said judgment and decree has been set aside in appeal vide judgment and decree dated 17.9.1985 by the Lower Appellate Court. The case of the plaintiff was that he is in possession of the said plot since 22.8.1969 which was date of agreement with Bhagat Singh, who had also executed a sale deed dated 16.2.1971 (Ex. P1) in his favour and alleged that defendant was raising construction in his plot and was encroaching upon the portion marked AB and had placed bricks over the said portion. The defence of the defendant was that the suit property was R.S.A.No. 3333 of 1985 -2- **** part of the house of the defendant and was in his exclusive possession for the last 20 years and that there were laterines, urinal and store in existence in the plot in dispute, which were in use and in exclusive possession of the defendant. The right of Bhagat Singh was also denied alleging that he had no subsisting right or title in the plot in dispute and the plea of adverse possession was also set up. In replication, the plaintiff alleged that he had direct approach in the property in suit from the street as well as from his house and the construction on the said property was old and had been made by Bhagat Singh from whom the plaintiff had purchased the suit property vide sale deed dated 16.2.1971. That on the said pleadings, the following issues were framed:- “1. Whether the plaintiff is owner in possession of the suit- property as alleged in para No.1?OPP 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the plaintiff is entitled to the injunction prayed for?OPP 3/A. Whether thesuit is within time?OPP 4. Relief.” The Trial Court after taking into evidence on record came to the conclusion that originally Mahan Singh was the owner of the plot in dispute and vide will dated 27.10.1932 (Ex. P4) bequeathed his property to Bhagat Singh and his widows Sant Kaur and Nihal Kaur and there was litigation between Bhagat Singh and Sant Kaur against Mohinder Singh defendant and in the said litigation there was a settlement between the parties and Mohinder Singh had made a statement in Court on 31.8.1959 wherein he had agreed that he would have no concern with the rest of the R.S.A.No. 3333 of 1985 -3- **** vacant site of Bhagat Singh etc. The said statement was not honoured and second set of litigation came in which again a settlement was arrived at and on this basis Mohinder Singh defendant was held not to be in adverse possession. It was further held that since the parties have settled the dispute and the plaintiff had a sale deed in his favour, therefore, the suit was very much maintainable at his instance and accordingly, the suit was decreed on 31.10.1980 as being owner Dilbag Rai had right to enjoy his property. The said judgment and decree was challenged by Mohinder Singh defendant before the Addl. District Judge, Patiala, who reversed the said finding and came to the conclusion that Mohinder Singh had never stuck to his compromise and. therefore, never surrendered possession in favour of Bhagat Singh and second round of litigation had started and, thus, there was evidence about his adverse possession, which was hostile to Bhagat Singh for more than 50 years. Another factor which weighed with the Lower Appellate Court was that Bhagat Singh had left Patiala in the year 1933-34 and taken up residence at Bikaner where he was in service and that he had been permanently residing there since then. His father Mahan Singh died in 1936 and, therefore, he could not be in possession of the property in dispute and thus the plaintiff Dilbag Rai also never had possession though Bhagat Singh entered into an agreement to sell with Dilbag Rai and subsequently sale deed was also executed in his favour. Accordingly, it was held under issueNo.1 that Bhagat Singh was owner in possession of the property in dispute but defendant-appellant had perfected his title by way of adverse possession against him and, therefore, the plaintiff did not acquire any right in the property on the basis of agreement and the sale deed Ex. P1 and issueno.1 pertaining to ownership was reversed against the plaintiff. On the issueof maintainability of the suit, R.S.A.No. 3333 of 1985 -4- **** it was held that the plaintiff should have sued for possession on the basis of title, if any, and accordingly, the relief of injunction was declined under issueno.3 and the appeal was accepted. In such circumstances, the appellant-plaintiff is in appeal questioning the findings recorded by the Lower Appellate Court. That though four questions have been formulated and placed on record by the counsel for the appellant, however, in the opinion of this Court, the following questions arise for consideration:- “1) Whether the Lower Appellate Court was justifed by holding that the defendant/respondent has become owner on the basis of adverse possession without taking into account the litigation which is pending between the parties and by holding that litigation has become final? 2. Whether the Lower Appellate Court has committed grave error in law by misreading the evidence on record by holding that defendant has been able to plead and prove the ingredients of adverse possession once litigation was going on between the parties?” Learned counsel for the appellant has argued that Mohinder Singh defendant was lodged in civil litigation with Bhagat Singh since 27.11.1957 which is the first suit for partition between Bhagat Singh and Sant Kaur on one side and Mohinder Singh on other side. It was further argued that in the said suit Mohinder Singh had given a statement on 31.8.1959; whereby he had agreed to compromise the matter and recognised that Bhagat Singh continued to be owner of the vacant site and that he and the plaintiff would have the right to use a passage and neither of the parties would object to this passage. On the basis of the undertaking the suit was withdrawn. It was further the contention of the counsel for the R.S.A.No. 3333 of 1985 -5- **** appellant that once the said undertaking was not complied with then a legal notice dated 20.10.1959 (Ex. D1/A) was sent to Mohinder Singh by the counsel of Bhagat Singh asking him to comply with the said undertaking and thereafter application for restoration of the suit was filed which was dismissed on 20.9.1960 (Ex. DX/1). Eventually the second suit was instituted on 21.7.1962 (Ex. D5) which was initially dismissed, and in Regular First Appeal No.349 of 1962 filed by Bhagat Singh, the matter was compromised before this Court and final decree for partition of the portion marked LKJI in the site plan (Ex. DC/1) was done and the possession was to be handed over to plaintiff No.1. In the said undertaking the defendant Mohinder Singh was also to pay the plaintiff an amount equal to ½ value of the portion in DEFG in the site plan. The market value of which was to be fixed by Sh. Banwari Lal, Advocate. Accordingly, it was submitted that since the parties were still litigating amongst themselves till 1968, therefore, agreement dated 3.9.1968 and subsequent agreement dated 22.8.1969 with Bhagat Singh vide which the present appellant-plaintiff purchased the property vide sale deed dated 16.2.1971 would go on to show that the defendant had never perfected his title by way of adverse possession and it was, accordingly, submitted that the conclusion of the Lower Appellate Court under issue no.1 that the defendant had led reliable evidence to show that he had perfected his title to the disputed property before the plaintiff came to picture and, thus, the plaintiff did not acquire the right in the property in suit on the basis of agreement followed by the sale deed, was not correct. Accordingly, it was further submitted that once the title was with Dilbag Rai his right to sue could not be taken away and finding under issue No.2 regarding the maintainability of the suit wherein it was observed that the plaintiff should have sued for possession was also liable to be reversed. R.S.A.No. 3333 of 1985 -6- **** That there is considerable merit in the submission of the appellant regarding the contention as noted above. There is no dispute on the issueof question of title and both the Courts have conclusively came to this finding that the property in dispute belonged to Bhagat Singh who had executed a sale deed dated 16.2.1971 in favour of plaintiff Dilbag Rai. Now the sole issueis that whether the Lower Appellate Court has misread the evidence and went on to hold that Mohinder Singh had perfected his title by way of adverse possession against Bhagat Singh prior to the sale deed dated 16.2.1971 which would disentitle the present plaintiff even to file a suit for possession as has been held by the Lower Appellate Court under issue no.1. Admittedly the first set of litigation started on 27.11.1957 between Bhagat Singh and his mother Sant Kaur against Mohinder Singh, the present respondent and in the said suit Mohinder Singh suffered the following statement on 31.8.1959 (Ex. PX):- “I have compromised with the plaintiff. In relation to the partition of the disputed pacca house we have arrived at a settlement out of Court. Bhagat Singh shall continue to be the owner of the vacant site as adjoins the property of Piaray Lal Brahmin situated on the north of the disputed house on the basis of the will of Mahan Singh. In this site a joint passage measuring 22' in length and 12' in width shall be carved out. Entrance to this passage shall continue to open as here-to-fore towards gadde Khanna. I and the plaintiffs shall have the right to use this passage. Neither of the parties shall use this passage for any purpose other than that of passage. Neither cattle shall be tethered in this passage nor Khurli or laterine shall be retained therein. I shall have no concern, with the rest of the vacant site of Bhagat Singh. I shall have no objection if R.S.A.No. 3333 of 1985 -7- **** the palintiffs construct wall etc. in accordance there-with.” Thus the compromise whereby Mohinder Singh was to permit Bhagat Singh to use the property did not go through leading to a legal notice dated 12.10.1959 (Ex. DX/1A) being served upon Mohinder Singh by Bhagat Singh wherein he was asked to part with one room adjoining the Gadde Khana and upper portion of the land upto the room adjoining the Gandi Gali. Since the notice was not adhered to an application dated 20.5.1959 (Ex.D1) was also submitted by Bhagat Singh that the original file be restored and suit be decreed as per share of applicant or as per the term of compromise. It is another factor that application was dismissed on 20.9.1960 (Ex. DX/1) and the suit was never restored which led to filing of second suit for exclusive possession of ½ of the house by means of partition and for change of possession on 13.12.1961 which was dismissed on 21.7.1962 (Ex. D5). Against the said dismissal Bhagat Singh filed Regular First Appeal No.349 of 1962 before this Court whereby eventually the parties compromised and Mohinder Singh made the following statement on 13.8.1968:- “The dispute in this case has been settled on the following terms:- 1. We are filing in Court today plan Exhibit D.C./1 in which portion marked ABCDEFGHIJ is the one in dispute in the present suit. The correctness of this plan and the fact that the portion markd A to J in this plan represents the property sought to be partitioned in the instant litigation is admitted by the plaintiff also; 2. We have agreed that in addition to the portion of the property in dispute which is already in possession of the plaintiff, i.e., the portion marked ABKLIJ, we shall deliver R.S.A.No. 3333 of 1985 -8- **** actual physical vacant possession of room marked LKHI in the said plan to the plaintiff within fifteen days from today. 3. In addition to actual possession as proprietor of the portion marked ABKLIJ which the plaintiff would now enjoy as a result of the decree being passed in pursuance of this compromise, the plaintiff would also be entitled to obtain from us half of the amount of the market value of today of the portion of the property marked DEFG in plan Exhibit D.C./1 including the site under it and the entire superstructure on it right up to the second storey and the stair case above the point 'G'. The market value will be fixed by Mr. Banwari Lal, Advocate Patiala. The fee of the Commissioner shall be paid by the parties, i.e. by the plaintiff on the one hand and the defendant no.1 on the other in equal shares. The Commissioner will submit his report to the trial Court who will pass a final decree for possession of the room marked LKHI, and for payment of half the value of the property marked DEFG in plan Exhibit D.C./1 in favour of the plaintiff and against the defendant leaving the parties to bear their own costs.” Accordingly, this Court was pleased to pass the following order:- “As per statements of parties and their counsel, this appeal is accepted, the judment and decree of the trial Court is set aside and for it is substituted a final decree for partition whereby portion marked LKJI in the plan Exhibit D.C./1 shall be handed over by the defendant to plaintiff No.1. Defendant No.1 shall also pay to the plaintiff an amount equal to half the value of the R.S.A.No. 3333 of 1985 -9- **** portion marked DEFG in the said plan. The market value of the said portion shall be fixed by Shri Banwari Lal, Advocate, Patiala to whom a formal writ of commission shall issueby the trial Court. He will submit his report within three months and the trial Court shall proceed to frame final decree on the receipt of his report after hearing objections, if any, which may be filed by the parties. Commission fee is fixed at Rs.200/- for the time being. Parties are left to bear their own costs throughout. The parties may appear before the Trial Court on October 7, 1968.” It was only thereafter Bhagat Singh entered into an agreement to sell on 3.9.1968 and 22.8.1969 (Ex.P2) with Dilbag Rai and then executed sale deed dated 16.2.1971 (Ex. P1). Even thereafter, it transpires from the record that on 12.6.1972 there was a criminal complaint filed by Mohinder Singh against Dilbag Rai which; was dismissed on 12.6.1972 (Ex. PY/2) apart from the fact that the property had also been attached on 2.2.1972 under Section 145 Cr.P.C. (Ex.PY/4) and the Tehdilsar had been ordered to take possession. That Mohinder Singh had filed a revision against the attachment order, which was dismissed on 18.2.1974 (Ex. PY/3). All these factors only go on to show that the litigation had never become final between the parties and it could not be held that Mohinder Singh had perfected his title against Bhagat Singh. Infact even on 20.3.1976 Mohinder Singh had filed an appeal before the Sub Judge Ist Class (Ex. PY/1) for issuance of a direction in compliance of order passed by the High Court dated 13.8.1968 that Sh. Banwari Lal, Advocate be directed to execute the Commission. All these factors only go to show that Bhagat Singh had been litigating and looking after his interest and, therefore, the Lower Appellate Court was not justified in coming to the R.S.A.No. 3333 of 1985 -10- **** conclusion that the defendant Mohinder Singh had perfected his title by way of adverse possession and, therefore, the plaintiff who purchased the property from him also had no right. That it is settled proposition that the defence of adverse possession is a right only given to defendant and it has to be pleaded and proved that they had perfected this right and that the owner had given up his interest in the property after knowing the fact that other party was in possession and such an owner did not prosecute his right for a period of 12 years which would lead to his loosing of title. In the present case, the parties were still litigating as would be clear from the facts and circumstances since 1957 onwards firstly and thereafter till 13.8.1968 and the Lower Appellate Court, therefore, was not justified in taking into context the period prior to this on the ground that father of Bhagat Singh, namely, Mahan Singh had died in 1936 and thereafter since Bhagat Singh was settled at Bikaner, he had taken no effective steps to retrieve his property. Accordingly, the questions of law framed above are answered in favour of the appellant to the extent that he is owner of the property and has right to sue which has not been extinguished by virtue of adverse possession. However, on the issueof locus standi of the plaintiff, it is clarified that apparently from the facts and circumstances narrated above, it would be clear that Mohinder Singh was always in possession and the vendor of the plaintiff Bhagat Singh tired of litigation from 1957 to 1968 had entered into an agreement and sold the same to Dilbag Rai, who had taken the risk of purchasing litigation. Thus, Dilbag Rai could not have filed the suit for permanent injunction as having stepped into the shoes of his vendor and he could have only sought possession. Accordingly, it is held that the suit for permanent injunction is not maintainable and the plaintiff- appellant is free to take recourse to his other remedy for possession on R.S.A.No. 3333 of 1985 -11- **** the basis of ownership and accordingly, issue no.2 is also modified by holding that he has a right for possession of the property in dispute having title but the suit for permanent injunction was not maintainable. This fact would be clear from the averments of the plaintiff in the plaint itself wherein he has sought possession of a vacant plot and in para 1 alleged that there was some constructed structure and once the fact of possession was denied in the written statement, he in his replication admitted that there was construction in the said portion in the form of laterines, urinal and store, he has alleged that the construction is old and made by Bhagat Singh from whom the plaintiff had purchased the property. The factum of compromise recorded by this Court in the statement of Mohinder Singh would show that Mohinder Singh was to surrender possession to Bhagat Singh and thus, it would be clear that question of Dilbag Rai being in possession did not arise and, thus, the suit for permanent injunction was not maintainable. Accordingly, the finding of the Addl. District Judge on the said issueis upheld that plaintiff-appellant is not entitled for the relief of injunction and the appeal is partly allowed to the extent mentioned above regarding ownership of the plaintiff -appellant and dismissed on the point of maintainability regading the suit for permanent injunction. December 01, 2011 (G.S.SANDHAWALIA) Pka JUDGE R.S.A.No. 3333 of 1985 -12- ****