Regular Second Appeal No.2330 of 1983(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Regular Second Appeal No.2330 of 1983(O&M) Date of Decision: March 8, 2011 Arjan Dass and another .....Appellants v. The Municipal Committee, Pathankot, District Gurdaspur through the Executive Officer of the Municipal Committee, Pathankot, District Gurdaspur and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Amit Jain, Advocate for Mr.Arun Jain, Sr.Advocate for the appellants. Mr.Ashish Yadav, Advocate for respondent no.1. Mr.Kabir Sarin, Advocate for respondents no.2 to 9. ..... RAM CHAND GUPTA, J. 1. Facts leading to the present regular second appeal run as under:- 2. Present appellants-plaintiffs filed a suit against respondent no.1-defendant no.1-Municipal Committee, Pathankot, and defendants no.2 to 9 by impleading defendants no.10 and 11 as proforma defendants for a decree for possession of land measuring 50'x15' shown as red in colour in the site plan attached with the plaint and described vide letters `ABCD' situated in Main Bazar, Opposite Municipal Office, Pathankot, and bounded as under:- “West: Main Bazar Shahpur Kandi Road, East: Remaining land of the plaintiff and defendants no.10 and 11. Regular Second Appeal No.2330 of 1983(O&M) -2- South:Shop of Behari Lal and North:Passage-stairs by removal of the material of every kind of the shop constructed on it by defendant no.1.” 3. Case of appellants-plaintiffs is that the land in dispute alongwith some other land adjoining to it was initially owned by Kasi Ram and on his death it came into the hands of his four sons, namely, Amir Chand, Dewan Chand, Mulkh Raj and Hans Raj. Share of Hans Raj was sold in execution of a decree of the Civil Court. Dewan Chand on his behalf and also on behalf of his other brothers, namely, Amir Chand and Mulkh Raj sold an area measuring 90'x50' to Amrit Lal vide registered sale deed, Ex.P1, dated 28.5.1960. Arjan Dass, his wife Maya Devi (appellants) and Som Nath and his wife Nirmal Kanta, defendants-respondents no.10 and 11 purchased the plot in dispute from Amrit Lal through registered sale deed, Ex.P2, dated 30.7.1970 for a consideration of `5,000/- and since then appellants alongwith respondents-defendants no.10 and 11 are continuing in possession of the same as owner. However, in January 1977, when emergency was enforced in India, respondent no.1, i.e., Municipal Committee, Pathankot, forcibly constructed shops over the suit land, which are now in possession of respondents no.2 to 9 as tenants under respondent no.1. According to appellants, the land in dispute is part of khasra No.315, total measuring 5 marlas. 4. Defendant no.1-Municipal Committee contested the present suit, inter alia, on the ground that neither plaintiffs nor defendants no.10 and 11 are owners of the land in dispute. Specific plea has been taken that the land in dispute does not form part of any land allegedly purchased by plaintiffs and defendants no.10 and 11. Rather the plea has been taken that suit land on which shops were built by defendant no.1 is part of berm of the road and the same vested in the Municipal Committee, Pathnakot, and that earlier there were wooden Khokas on the said site which were given to defendants no.2 to 9 and that they had been paying teh Bazari to Municipal Committee, Pathankot. Specific plea has been taken that defendant no.1 had been continuing in possession of the suit site since the year 1956 and that neither plaintiffs nor defendants no.10 and 11 or their vendors ever remained in possession of the site in dispute. In alternative, defendant- respondent no.1 has also claimed to have become owner of the site in Regular Second Appeal No.2330 of 1983(O&M) -3- dispute by adverse possession. 5. Defendants-respondents no.2 to 9 have supported the case of defendant no.1 and admitted that they had been paying Teh Bazari to defendant no.1 for occupation of the site in dispute since the year 1956 and that earlier there were khokhas on the site in dispute. 6. From the pleadings of the parties, the following issues were settled for adjudication by learned trial Court:- “1. Whether the plaintiff is entitled to file the suit for the whole land? O.P.P. 2. Whether the suit property is properly valued for the purposes of court fees and jurisdiction? O.P.P. 3. Whether the plaintiffs are the owner of the suit land? O.P.P. 4. If issue no.1 is proved whether the defendants have become owner by adverse possession for more than 12 years? O.P.D. 5. Whether the suit is within time? O.P.P. 6. Whether the suit is bad for misjoinder of defendant no.2 and he is entitled to special cost u/s 35-A C.P.C.? O.P.D. 7. Relief.” 7. Parties adduced evidence in support of their respective claims before learned trial Court. Learned trial Court while deciding Issue No.1 held that appellants in view of averments made in the plaint are entitled to file the present suit. 8. Issue no.2 has also been decided in favour of appellants holding that the suit property was found to be correctly valued for the purpose of court fee and jurisdiction. However, while deciding issue No.3, it was held that appellants-plaintiffs have failed to prove as to which part of the land comprising in khasra no.315 was purchased by them or the suit land shown by letters `ABCD' in the site plan attached to the plaint forms part of land purchased by them. 9. Under issue no.4, learned trial Court observed that plaintiffs have failed to prove that they ever remained in possession of the land in dispute and hence, plaintiffs have also failed to prove that they are having possessory title in their favour regarding land in dispute. It has further been Regular Second Appeal No.2330 of 1983(O&M) -4- held that defendant-respondent no.1-Municipal Committee is proved to be in possession of the property in dispute at least since the year 1965 and that possession is continuous and open, whosoever owner of the suit land might be, his title was clearly denied by Municipal Committee and hence, the Municipal Committee, has become owner of the same by way of adverse possession for the last more than 12 years. 10. Under issue no.5, it was held that suit is barred by limitation. Issue No.6 has been decided in favour of appellants and against defendant no.2. 11. However, in view of findings on various issues, especially on issues no.3 and 4, the suit filed by present appellants-plaintiffs was dismissed by learned trial Court vide judgment and decree dated 27.1.1982. 12. Aggrieved against the said judgment and decree passed by learned trial Court, appellants-plaintiffs filed appeal before the then learned Additional District Judge, Gurdaspur, who vide impugned judgment and decree, dated 30.4.1983, dismissed the same. 13. Aggrieved against the judgment and decree passed by both the Courts below, the present regular second appeal has been filed by appellants-plaintiffs, which was admitted by this Court vide order dated 12.12.1983, without framing substantial questions of law arising in this appeal. 14. A Full Bench of this Court in the case of Ghanpat v. Ram Devi AIR 1978 Punjab and Haryana 137 had taken a view that in view of Section 41 of the Punjab Courts Act, the amended provisions of Section 100 of the Code, as amended in 1976, were not applicable to the second appeals filed in this Court and accordingly, no substantial question of law was framed, nor the aforesaid regular second appeals were admitted on any such substantial question of law. However, the Hon'ble Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs (2001) 4 JT SC 158 : (AIR 2001 SC 1273) has held that after amendment of Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act, i.e., Code of Civil Procedure and therefore was to be ignored and therefore, the second appeal shall only lie to this court under Section 100 of the amended Code of Civil Procedure on a substantial question of law. Regular Second Appeal No.2330 of 1983(O&M) -5- 15. It may be mentioned here that though question of law was not framed at the time of admission of present appeal, and however, it has been observed by Full Bench of this Court in Dayal Sarup v. Om Parkash (since deceased) through L.Rs and others (2010-4)160 PLR 1, that this Court can formulate question of law as contemplated under Section 100 of the Code at any point of time before hearing of the appeal, even without amending the grounds of appeal. It has also been held that it is the duty of the Court to formulate substantial question of law while hearing the appeal under Sections 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings. 16. Hence, in view of this legal proposition, learned counsel for the appellants-plaintiffs was asked to file substantial questions of law, stated to be involved in this appeal. 17. Learned counsel for the appellants-plaintiffs has argued that the following substantial questions of law are involved in this appeal:- “(a) Whether in the facts and circumstances of the instant case the plaintiffs/appellants having proved on record the sale deed Ex.P1 in favour of their vendor as also the sale deed Ex.P2 in their favour, the approach of the learned courts below in dismissing the suit for possession filed by the appellants can be sustained in law and once the contesting respondent has taken the plea of adverse possession the title of the appellants can be said to be disputed? (b) Whether the findings recorded by the learned Courts below that the defendant had become owner by adverse possession can be sustained in law when neither the ingredients for upholding the plea of adverse possession was pleaded nor proved by the contesting respondent? (c) Whether in the facts and circumstances of the instant case the respondent no.1 having withheld the best evidence, i.e., the site plan in support of its allegation that the suit land was transferred to it by PWD in January 1956, the suit filed by the appellants for possession based on title could be dismissed? Regular Second Appeal No.2330 of 1983(O&M) -6- (d) Whether in the facts and circumstances of the instant case the approach of the learned courts below in misreading and misinterpreting the material documentary as well as oral evidence on record while recording the findings against the appellants can be sustained in law?” 18. I have heard learned counsel for the parties and have gone through the whole record carefully on the aforementioned substantial questions of law stated to be arising in this regular second appeal. 19. It has been vehemently contended by learned counsel for the appellants-plaintiffs that plea of defendant-respondent no.1- Municipal Committee is that of adverse possession, hence, it is contended that a person who claims adverse possession should show as to on what date he came into possession; as to what was the nature of possession; as to whether factum of possession was known to the other party; how long his possession has continued and whether his possession remained undisturbed. It is also contended that a person pleading adverse possession is having no equities in his favour as he is trying to defeat the rights of the true owner and that it was for him to clearly plead and establish all the facts necessary to establish his adverse possession. On this point he has also placed reliance upon Saroop Singh v. Banto and others, 2005(4) RCR (Civil) 599, relevant paragraph of which reads as under:- “30. Yet Again in Karnataka Board of Wakf v. Government of India and others, 2004(2) RCR (Civil) 702 (SC): (2004) 10 SCC 779, it was observed: Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his Regular Second Appeal No.2330 of 1983(O&M) -7- favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” In view of our findings aforementioned, we are of the opinion that there is no merit in this appeal, which is accordingly dismissed. No costs.” 20. On the same point he has placed reliance upon T.Aajanappa and others v. Somalingappa and another, 2006(2) RCR 593. He has also contended that plea of adverse possession is indirect admission of ownership of plaintiff and on this point he has placed reliance upon Sultan and others v. Smt.Kasturi and others, 2005(3) PLR 164 and Jagat Singh and others v. Sri Kishan Dass and others, 2008(1) PLR 67. 21. It has further been contended that though appellants-plaintiffs have been able to prove that they became owner of the property in dispute by way of purchase from previous owner and, however, defendant- respondent no.1 has failed to prove that it has become owner by way of adverse possession. It is further contended that even as per teh Bazari, register produced by defendant -respondent no.1-Municipal Committee, there is no description of the property which was given on teh Bazari, and, hence it cannot be said that property in dispute is the same which used to be given on teh Bazari by defendant -respondent no.1-Municipal Committee. It is further contended that stand was also taken by respondent-Municipal Committee that the property in dispute was transferred to the Municipal Committee by Public Works Department of the Government and that however, no such document has been produced to prove the alleged fact. 22. On the other hand, it has been argued by learned counsel for defendant-respondent no.1-Municipal Committee that it was for the appellants-plaintiffs to prove that the property in dispute forms part of the property which was purchased by them vide sale-deed Ex.P2, which they have failed to prove. It is further contended that defendant-respondent no.1 has specifically denied that the property in dispute was purchased by appellants-plaintiffs vide sale-deed Ex.P2 and, hence, it is contended that appellants-plaintiffs were to stand on their own legs and when they have failed to prove their ownership over the property in dispute, they cannot take any benefit of the pleas taken by respondent no.1-Municipal Regular Second Appeal No.2330 of 1983(O&M) -8- Committee. It is further argued that plea of adverse possession was taken by respondent no.1-Municipal Committee only in the alternative and that they have denied the ownership of appellants-plaintiffs on the land in dispute. It is further contended that defendants are having right to raise all the pleas available to them to defeat the suit filed by the plaintiffs. On this point, he has also placed reliance upon Vidhyadhar v. Mankikrao and another, AIR 1999 Supreme Court 1441, wherein it has been observed by Hon'ble Apex Court that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff, relevant paragraph of which reads as under:- “20. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which title to the property was intended to be conveyed to plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord tenant matter where the landlord is possessed of many properties and cannot possible seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view Regular Second Appeal No.2330 of 1983(O&M) -9- expressed by the privy Council in the case of Lal Achal Ram (1905 (32) Ind App 113) (supra) in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.” 23. Law is well settled that plaintiff has to stand on its own legs and that initial onus lies upon him to prove his case as per the pleadings. 24. Admittedly, respondent-Municipal Committee is in possession of the property in dispute. Appellants-plaintiffs filed this suit for possession on the basis of title. The only fact which they have been able to prove is that Amrit Lal purchased an area measuring 90’x50’ comprising in khasra No.315 from previous owner vide sale-deed Ex.P1. This piece of land was sold by Amrit Lal to the present appellants and defendants-respondents no.10 and 11 vide registered sale-deed Ex.P2 dated 30.7.1970 for a consideration of `5,000/-. However, it has been rightly observed by learned Courts below that these sale-deeds do not indicate that the site in dispute was part of the property sold by these documents or that the property in dispute remained in possession of the appellants-plaintiffs or their vendors vide the said documents. Even in sale-deed Ex.P1, there is no mention regarding delivery of possession to Amrit Lal. Sale-deed Ex.P2 is only in respect of 3/4th share of land measuring 90`x50’ and it has been recited that only symbolic possession was delivered to vendee. It has also been recited in Ex.P2 by Amrit Lal that in case any part of land sold vide the sale-deed would be taken out of possession of the vendees, he would not be liable for the same. It is also proved that land in dispute is part of khasra no.315 as per the report of the Local Commissioner. The total khasra measures about 5 marlas. The boundaries of part of khasra no.315 purchased by present appellants-plaintiffs and defendants no.10 and 11 have not been mentioned in the sale-deed and rather boundaries of entire khasra No.315 have been given. Hence, plaintiffs failed to prove that site in dispute shown by letters `ABCD’ attached with the plaint was in fact part of the property purchased by them vide sale-deed Ex.P2. 25. On the other hand, defendant-respondent no.1-Municipal Committee has been able to prove by producing abstract from teh Bazari register from the year 1965 onwards that the Committee had been realizing Regular Second Appeal No.2330 of 1983(O&M) -10- teh Bazari from the persons who had constructed their khokhas, i.e. respondents no.2 to 9. Even one of the co-vendee of appellants, Som Nath had also been paying teh Bazari. Learned Courts below has rightly rejected arguments by learned counsel for the appellants-plaintiffs that the said entries could be fabricated. It is true that property has not been described in the register of teh Bazari maintained by Municipal committee, however, no other property is in possession of respondents no.2 to 9 under the Municipal Committee on payment of teh Bazari. Appellants-plaintiffs have themselves impleaded respondents no.2 to 9 as parties in this suit on the plea that they are in possession of the property in dispute. Respondent- Municipal Committee has been able to prove that they are in possession of the property in dispute on payment of teh Bazari since the year 1965 onwards and that earlier there were khokhas and thereafter shops were constructed and given on rent to them. Defendants-respondents no.2 to 9 have also supported the plea of respondent no.1-Municipal Committee on this point. 26. Hence, it has been duly proved that respondent no.1-Municipal Committee has been managing the property in dispute and has been realizing the teh Bazari from the occupiers for the last more than 12 years. 27. Hence, in view of these facts, it cannot be said that respondent no.1-Municipal Committee has admitted ownership of appellants-plaintiffs over the property in dispute, as argued by learned counsel for the appellants- plaintiffs. 28. So far as legal proposition held in the aforementioned judgments, on which reliance has been placed on behalf of the appellants- plaintiffs, there is no dispute. However, none of the said authorities is applicable to the facts of present case, in view of the above discussion. As already discussed above, initial onus was on appellants-plaintiffs to prove that they have purchased the property in dispute vide sale-deed Ex.P2 which they have failed to prove. 29. In view of the above discussion, all the aforementioned substantial questions of law, stated to be arising in this regular second appeal, as argued by learned counsel for the appellants-plaintiffs, are decided against appellants-plaintiffs and in favour of respondents- defendants. Regular Second Appeal No.2330 of 1983(O&M) -11- 30. As a sequel my above discussion, there is no merit in the present Regular Second Appeal. The same is, hereby, dismissed. 31. However, in view of the peculiar facts and circumstances of the present case, the parties are left to bear their own cost. 8.3.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.