93 1 7 IN THE HIGH COURT OF PUNJAB ANIO HARYANA AT CHANDIGARH RSA NoA84 of 1987 4i DateofDecisionl l0 022010 Giani Ratn Appellant through Shri JaswantJain Advocatc Versus Balbir Singh in personwith Shri GSGandhl Advocate 1 0 CORAM1 HONBLE MRJUSTICE MAHESH GROVER 0 I C5 1 1 e WhetherReporters of Local may be allowed to I seethe To bereferredto theReporters or not2 Z 3 Whether should bereported in theDigest2 m 0 I Mahesh GroverJ 06 Tbis RegularSecondAppealis directed againstthe OO and decreesdated 22i21983 and309986 passed bythe Sub 7 Z JudgeIst Class Narnaul hereinafterreferredto as the trial Courl and the Oa Additional Districl JudgeNarnaul hereinafter as he flrst appellate Court9vide which the suit of thc was decreed andtheappealofthe was dismissed he had flled a suit for recoveryofpossession of 10 kanals 1 marlasof land situatedin villageSiwana Karia Tchsil Narnaul as describcdin l ofthe plaintfor brevity he suit propelt19Il W2S pleaded that he had purchasedthe suit property10r Rs 150000 froin one Loku Ram who was allottee from the Central Governnlent Thc sale decd wasstatedto havebeen executedOll 6A972 The appellant was alleged to Il . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 94 1 RSNo484 of 1987 be in forcible and unauthorised of the SUit propertywithout payment of any rent and since he was not vacatingthe same the suitwas lllStituted The appellantcontestedthe suit on the groundthat he was lll ofthe suit propertyfor the last 2530 years It was pleaded that there was no sale deed in favour of the in respectof the SWit 0 property and ifthere was any the same was bogusand fraudulentdocument C on the basisof which over the san1e I C5 It was next pleaded that the appellantwho was owner of the suit property I could not be by a stranger i the Adverse Z possession was also pleadedin the alternative and besides this varlOUS e Cl r other objectionsregardingjurisdiction and locus standi werealso raised 08 OO ln the replication the has reiteratedhis pleadings 7 Z and statedthat the appellant lS a and therefore was liableto 6e ejected Upon pleadingsof the partiesthe followingissues were framed 1 Whether the plaintiffls owner of this land vide sale deeddated6A220PP 2 Whetherthe defendant1S 111 of the suit Iand for the last 25 or 30 yearsand as such has becomethe owner of the suit land as alleged20PP . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document Pr 95 1 1 RSNoA84 of1987 e3 3 Whether the plaintiffhas no locus standi to flle the present suit20PD 4 Whether thesuit is barredbytime70PD 5 Whether the suit is not maintainable in the present f0rm20PD 1 6 Whether theplaintiffis estopped from filingthe presentsuit 0 byhis act and conduct20PD 0 7 Relie I C5 Whi Ie 1SSue no the trial Court concluded that the was not provedto be the owner of the suit propertyThe plea Z of adverse raised by theappellant was also negatived and Slnce no had been addressedon the remaining issues the suit was I decreed 08 r In appealthe finoiings of the trial Court were affirmed bythe 7 Z flrst appellate Court Qm Hence this RegularSecondAppeal 1 Learned counsel for the appellant has contendedthat therehas been a complete of evidence as the revenue entries have been He further contended that all the revenue records Exhibits Dl to D9 havebeen misconstruedby the Courts below as all these documcntsindicate the of the appellant over the suit property and it can therefore be inferred that Slllce the possessionwas open and hostile to the the appellants had ripenedinto ownershipLearned counsel for theappellantargued that the recitals in the . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 96 RSAVoA84 of1987 1 4m saledeed Exhibit Pl did not conform to thepleadingsHe pointed out that Exhibit P 1 is qua 53 kanals l marla whereas in the suit the SU1tproperty has been describedto be 10 kanals 1 marla He furtherpointed out that in the plaintkhewat number and khatanumberof the suit prop6ny havebeen mentioned whereasin the sale deed Exhibit Pl onlykhara m nuinbershavebeen He thus submittedthat thereis complete C2 0 variance in so far as thepleadings ofthe are concerned 0 The next contentionof the learned counsel for the appellanis I C5 that the originalsale deed was never provedand onlya copy thereof was I exhibitedwhich did not dispense with the mode of proof Moreover the Z vendor with whom this transactionhad takenplacewas not produced in the m WltlleSSbox to supportthe said documentandtherefore the Courts beloW O8 have gone wrong in placingreliance thereon He 81rthercontendedthat ClO therewas absolutely no evidence on record from where it could be inferred 7 that Loku Ram the allegedvendor had 1 allotted the suit propertyby Z Deen the Central Government It was submitted that the of Balb1 Singh did not tallywith those appearing on the sale deed and an adverseinferencewas sought to be drawn on thepleathat the beingan advocate had signedin Hlndi lt was arguedthat no document 1 from RehabilitationDepartment was produced to show that the sult propertl 1 was allotted to Loku Ram It was further arguedthat even no official from that said was examined to prove that the Sllit propertywas allottedto Loku Ram ln supportof his contentionslsubmissionslargumentslearned . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 97 1 RSANoA84 of 1987 e counsel for the appellantplacedreliance on Sait TaraieeKhimchandand othersVersus Yelamarti Satyamand others AIR 1971 SC 1865 and SachendraKuinar Ghosh Versus PratimaDevi 19836l1RCl 553 In Sait Taraiee Khimchand and others Versus Yelamarti Satvamand others supral it was held as underl m Mere markingof a document as an exhibit does not dispense 0 with its proo 0 Accordingto the Iearned counsel for the appellant the r C5 followingsubstantial questions of law arise for determination in this I appeal Z 5 1 Whether the and decree passedby the Coul1s below are not sustainablein the eyes of law on account of r 08 ofevidencel documentsavailable on record n0 2 Whether the photocopy of the sale deed Exhibit P1 which er W7 Z llas been exhibitedwithout its formal proofis admissible in Qm evidence furtherwhethermere exhibition of a documentwill dispensewith its proof7 3 Whether it was necessary to examine the vendor or his Mukhtiaeam to provethe saledeed Exhibit Pl2 On the other hand the respondent in person assistedby Shri GGandhi Advocate contendedthat the appellant has taken pleasln the main set of pleadings he hasset up his ownership whereasin the additionalpleashe hastaken thepleathathe was in adverse of the suit property It was 6lrther contendedthat these two pleascannot . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 98 P RSAVoA84 of 1987 40m coexist becauseifthe appellant claims himselfto be owner then he cannot pleadadverse and ifhe pleadsadverse then he hasto admitthe ownership of the It was arguedthat even if the plea of adverse wasto be considered in right then the appellant failed to pleadand prove as to when he entered111 of the suit propertyand as to when it becameopen and hostile to the true 0 owner Besides even if the plealS to be accepted that the appellant 1S lll C adverse then also the same could not havebeen accepted bythe I C5 Courtfor the reason that theperiodof twelve yearswasnot complete so as I to ripeninto ownership becausethe appellant claimed since the Z 5 year 1969and the sale deed was executedin the year 1972 Ifthe periodof L C limitationis to be computed from 1972 then the sultwas filed in the year 08 1981 ie within limitation and even if it is assumedto be from the year 00 1969 then on the date when the suit was filed ieon 156198 1 the m7 Z appellant did not complete twelve years of actual It was next arguedthat the contention of the leamed counsel for the appellant IS incorrect when he stated that there is no material to show that the suit propertywas not allotted to Loku Ram Attention to Exhibit P5 was drawn whereby the had been givento one Krishan General Power of Attorneyof Loku Ram Besides ever slnce the was delivered all the revenue records showed Loku Ram to be the owner of the suit propertyventhe documentson which reliance had been placedby the showed that Loku Ram was ownerandthereforethere wasno ambiguity so far as theownership of Loku Ram was concerned . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 99 9D RSNo84 of 1987 7 I have thoughtlliyconsidered the rival contentionsand have perused the whole record To the rival contentlons of the partiesit 1S to refer to theplaintand the writtenstatement The had pleadedthat he was owner of the suit property which had been usurpedby the He had C 0 furtherpleaded his title on the basisofExhibit Pl which is a sale deed A C0 perusal ofthe record shows that it lS a photocopy of the originalwhich was I C exhibited But duringthe course of the originalsale deed I 1 which was a partof some other was produced andthe attesting Z witness when stepped Into wltness box had the existenceof n er the originalas also his Thatapatt the appellant never r 45 raisedany objection the of the documentin thepresent ClO form It is a settledproposition oflaw that such an objection has to be taken 14 7 Z at thevery threshold In R V E Venkatachala Gounder Versus Arulmigu Viswesaraswamiand V Templeand another AIR 2003 SC 4548the Supreme Court observedas followsl Ordinarily an objectionto the of evidence should be takenwhen it is tenderedand not Th6 objections as to of documentsin evidence ma 1 be classified into two classesl i9 an objectionthat th document which is soughtto be provedis itself inadmissible 111evidence 6ii9where the objectiondoes not disputethe . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 400 6 RNoA84 of 1987 e 8m of the document in evidence but is directed towardsthe mode the same to beirregular or insufficient In thefirst case merelybecause a dcument has beenmarkedas an exhibit an objection as to its 1S not excludedand 1S availableto be raisedev6n at a Iater stageor even in appeal or revlslon In the latt6rcase the should be taken before the evidenceis tndered and 0 0 once thedocumenthas been admittedin evidence andmarked I C9 exhiblt the objectionthat it should been as an I admittedin evidence or that the mode foriproving the Z 1 document is irregular cannot be allowed to be r4isedat any e stage to themarking ofthe documenta8an exhibit I The later is a rule of fair play The ucial test is 08 ClO whetheran objectioniftaken at the p6intoftime Z would have enabledthe party the to cure Qm the defect and resort to such mode of proofa6would be regularThe OmlSSlOn tO objectbecomesfatal bedauseby his failure the partyentitledto objectallows the partytendering the evidenceto act on an that the opp6site partyis not serious about the mode of proof On the other hand a promptobjection does not prejudice the partyt4ndering the evidence for two reasons firstly it enables the Court to applyits mind and pronounceits decision on theiquestion of then and there and secondlyin the event of S . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 401 j RSANoA84 of 1987 e9m flndingof the Court on the mode of proofsoughtto be goingagainstthe partytendering the evidence the of seekingindulgence of the Court for permltting a mode or methodof proofand therebyremoving the raised bytheopposite party is available to the party leading the evidence Such practiceand is fair to r 0 both thepartiesOut ofthe said two typesofobjections in the C0 later case failure to raise a prompt and timelyobjection I Co amounts to waiver of the necessity for insistingon formal I proofof a document the documentitself which is sought to be Z provedbeingadmissible in evidence In the Srst case would be no bar to raisingthe objection lIl I superior Court c6 QO Xx Xx Xx Xx Xx Xx XX XX vno Sincedocumentsin the instantcase were admittedin evidence Z withoutany objectiontheflndingbythe Fl Court that these documentswere inadmissiblebeingphotocopiestheoriginals te ofwhich w not produced was not proper Itthus becomesclear that in the absenceofany objection taken bytheappellantthe documentwhich was exhibited in the presentform and with the originalwas rightlytakeninto considerationbyboth the Courtsbelow Even if therewas an in the modeofproofandan had been taken bythe appellant at the time of its subnlission the same could have been rectified by the but at this stagein . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 402 t RSAVoA84 of 1987 10 Regular Second Appealthe samecannot be to be t4kenso as to the case of the more whenthe sale itselfis a document and accordingto Section 17 of the1 Act1908 and Section114 ofthe EvidenceAct1872 there 1s a presumption thatit hasbeenvalidlyexecuted 1 The Supreme Court in Prem Singh8 Ors Ver8us Birbal ce rl1 Or RC1Civil9 381 SC1 hasobservedin 28 ofthe 0 0 as underl I C5 28 There is a that a document lS I validlyexecuted A document thereforeprimafacie Z would be valid in law The onus ofproof thus ould be on a m person who leads evidence to rebut the In the instantcase No has not been able7to rebut the 08 OQ said 33 7 Z Thejudgment ofthe Supreme Court in Sait TaraieeKhimchand andothersVersus Yelamarti Satyamand others lpral relied upon bythe learnedcounsel for the appelIant is not attractedthe fatts of the lnstant case as it pertained to a situation wherea documenthad merelybeen markedand not provedIt was in that context that the observation cam that merely bccausea documenthas been markedor exhibited it does not dispense with the ofprovingit in accordancewith lawbut as observedearlier the sale deed in the presentcase was exhibited and was with the Originaland the attesting witness was producedin supportof the same There is thus no hesitation to hold that the document has been vaIidly . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 403 44 RANo184 of 1987 11 executedand its evidentiaryvalue has rightlybeen by the Courtsbelow The document Exhibit Pl also cannot be said to be vague as hasbeensought to be contendedbythe learnedcounsel for theappellant The suit property lS not the entire property which was by the lt is merely10 kanals and 2 marla which is Q 0 comprised ltl khewat no l 70 khata no03 killa nos 4120 8e09and C 5125min219 The suit has not beenfiled quathe entireproperty I C5 but it is qua onlysome portionand the same beingin the ownership of I Loku Ram theoriginalowner lS alsobome out sufficientlyThe revenue Z record shows Loku Ram the originalvendor of the r to be the owner of thesekilla numbers Even the documentswhich have beenrelied upon by theappellant depictLoku Rain as owner of c6 r thispropertythe details of which havebeen noticed above The contention Z ofthe leamed counsel for theappellant is therefore The Court is now con80nted with the situation where the plea ofadverse is raised Ifthis plea1Sto be tested then the same 1S baseless and totally Initially the appellantpleaded of the suit propertybut in the alternative he claimed ownership byway ofadverse Both thesepleasare mutually destructiveof eachother Even if the alternativepleals to be considered then in that eventalso theappellant had to pleadtheparticulars ofthe owner in order to inakesuch a pleaworth of consideration The appellant herein had neither giventhe particulars of the true owner nor were necessary of . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 404 4 RANoA84 of 1987 12m adverse were gtven He had not pleadedas when his becameopen and hostile to the true owner In Kamataka Board of Wakf Versus Government of India and RCR 6CivilJ702 SC9 the Apex Court observed 111 11 as follows 11 Jn the eye of law an owner would be deeniedto be in Q 0 of a propertyso longas there lS no Non C3 use of the propertyby the owner even for a lon time wont I C5 affect his tltle But the positionwill be altered when another I persontakes of the propertyand asserts a rightover Z lt Adverse ls a hostile by clearly V2 asserting hostile title ln denialofthe title ofthe true owner lt is I 08 a well settledprinciple that a partyclaimingadversepossesslon oo 4 must prove that his 1S nec v nec clam nec n7 Z precario that is peacelill open and contiliuous The possession must be in continuityin pubMcity and in extent to show that their is adverse to the true OWner It must state with a dispositionofthe rightful owner and be actual visible exclusive hostile continued over the statutoryperiod6See1 SMKarim ve Bibi Sakinal AIR 1964 SC 1254 Parsinnnhi v Sukhi 1993 RRR 681 SC92 99394 SCC4E 375 and veState of Karnataka 199717 SCC 5671Physicalfact exclusive possesslOll and the aniinus possidendito hold as owner in . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 405 4 RSANoA84 of 1987 43 exclusiveto the actual owner are the most important factors that are to be account in cases of this nature Plea of adverse POSSeSSlOll 1S not a pure question of law but a blended one of fact and law Therefore a person who claims adverse should show on what date he came into 1 6b9what was the nature of his 0 r whetherthe factum was known to the other pany 0 0 d9 how long his has continued and 6e9his I C0 was open and undisturbed A person pleading I adverse has no equitiesin his favour Since he is Z tryingto defeat therightsof true owner lt 1S for him to clearly 1 pleadand establish all facts necessaryto establish his adverse I 08 possessionDr Mahesh Chand Sharma Ve Raj Kumari r Sharma 199611RRR 387 SCl 2 19969 8 SCC 128 99 7 Z In T Anianappaand Ors Versus Somalingappaand Anr 2007 tl 619RCR 6Civio19 SC9 their Lordships of the Supreme Coun held as underl 1 22 It is well recognizedpropositionof law that mere however longdoes not meansthat it is adverseto the true owner Adverse reallymeans the hostile which is expressly and impliedlyin denial of title of the true owner and in order to constitute adverse the provedmust be adequate 111 COntinultYin publicityand in extent so as to show that it is . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 406 1 RSNoA84 of 1987 4e adverse to the true owner The classical of of title by adverse are that such possession in denialof the true owners title must be peac14 open and continuous The must be open and hostile 20 to be capable of beingknown bythe partiesinterestein m the propertythoughit 1S not necessary that there should be 0 actuallyinforming the real evidence of the 0 0 ownerofthe fonners hostile action 75 C To the similar effect are the observationsofthe Supreme Court I 1 in MDurai VerksusMadhu and others RCR Civill 889 SCI Z Binapani Paul Versus Pratima Ghosh 8L Ors RCR 6Civil801 6C9 Hemi WaghajiJat Versus Bhikabhai KhengarbhaiHariian 4 I Others RCR Civil 401 and of this Court in Inder SinghKatia 08 00 Versus Kedar Nath RCR Civio Communist Party 7 Z Roparand others Versus Sant Saran Bhalla Oeadlthrogh his L Rs 1d oth 2007039 RCR Civill361 In Hemaii WaghaiiJat Versus Bhikabhai KhengarbhaiHariian C Otherssupraltheir Lordships ofthe ApexCourt after analysing the law on thesubjectsuccinctiy lald down thefollowingfactswhich are necessary tobe pleaded and provedwhen thepleaofadverse is raised 19Aparty claimingadverse must prove that his is nec vi nec clam nec precar that is peacefulopen and continuous The possessionmuSt be in continuityin publicityand in extent to shoWthat . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 407 4 RSANoA84 of 1987 4 5 thelr is adverseto the true owner It must start with a wrongful of the owner and be actual visible exclusive hostile and continued over the period 200429RCR 6Civill702 SC9and AIR 1934PC 23 relied 1 629Possession of one co40eir is considered ltl law as lPat K 0 of aIl the coleirs When one co4leir is C possessionofthe it is presumed to be one the basis I C5 of jointtitle As betweencoleirs theremust be evidenceof I openassertion of hostile title coupledwith exclusive Z and byone ofthem to be knowledge of e Q theother so as to constituteouster AlR 1957SC 314 relied I 08 09 There must be evidence when the became Cn adverseso that the startingpointof limitation againstthe eJ Z partyaffected can be found AIR 1964SC 1254relied Qm 49 Havingcome into under colour of title from originalgrantee if the appellantintends to pleadadverse possessionasagainstthe State he must disclaim his title and pleadhis hostile claim to theknowledge ofthe Stateand that the State had not taken any action thereon within the periodTherebythe appellants would becomeadverse SCC 309 relied 659Non41seofthe propertybythe owner even for a Iongtime wont affect his title But the positionwill be alteredwhen . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 408 4 RSANoA84 of 1987 016 anotherpersontakes of thepropertyand asserts a rightover it RCR 6Civil702 6SCIrelied 661 Plea of adverse is not a pure of law but a blendedone of fact and law Therefore a person who claims adverse should show l 6a1on what datehe 1 came into b9 what was the nature of his 6c9whetherthe factum of was known 0 0 to theother party 6d9how longhis has continued I C and6e9his was openand undisturbed I 679In terins of Article 65 the starting pointof limitation does Z not comlnence Som the date when the rightof ownership m arises to the plaintiffbut commencesfrom the date the I defendants becameadverse 11 08 00 Looking at it from any angleon the basisofthe aforementioned W7 Z observationsof theApexCourt andthe materialon record it cannot be said Ll that the was not thetrue owner and that the document Exhibit Pl did not bestow any title upon him which document had rightlybeen by the Courts below asitwas rightlyprovedand the pleaof adverse raised by the appellant is totallywithout any merit as it was mutually destructivewith the pleaof ownership raised by hitn in the written statement and even he had failed to pleaand prove the necessary for raisingsuch a plea On the basis ofthe abovediscussion I do not find any merit in the instant appealand the questions of law fonnulated by the learned . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 1 409 S 4 RSANoA84 of 1987 17 counselfor theappellant are answeredaccordingly In the result theappealis dismissed rs 7 FebruarylO2010 Mahesh Grover l SCM Judge J t r 0 0 I C5 I L Z sP m 0 eV6v I 08 1 41 00 7 Z ll . Anita 2012.05.17 13: 29 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document