Baldev Singh vs Kewal Singh Virdi and Others

Mahesh Grover, J.—This Regular Second Appeal is directed against judgments and decrees dated 30.8.2007 and 13.1.2009 passed respectively by the Civil Judge (Senior Division), Kapurthala (referred to hereinafter as `the trial Court'') and the District Judge, Kapurthala (hereinafter described as `the First Appellate Court'') whereby the suit of the plaintiff-respondent No. 1 was decreed and the appeal filed by the appellant was dismissed.

Respondent No. 1 filed a suit for possession against Darshan Singh and Smt. Swaran Kaur, the parents of the appellant and proforma respondents herein, pleading therein that he had purchased the plot in dispute from one Ramesh Kumar son of Sant Kumar for a total sale consideration of Rs. 8000/- vide registered sale deed dated 4.4.1973.

According to him, in that very year, he had left for foreign country and since then, he was residing in England. In his absence, he had requested Shri Mohinder Singh Rhency son of Amar Singh to look after the plot in dispute. Shri Mohinder Singh Rhency also left India in the year 1989 and died in the year 1991. Darshan Singh and Smt. Swaran Kaur, who were owners of the adjoining plot, took forcible possession of the plot in dispute and raised construction thereon. It was the case of respondent No. 1 that he came to know about the illegal act of Darshan Singh and Smt. Swaran Kaur from Ravinderpal Singh son of Jagir Singh to whom he had written in the year 1995. He, thereafter, appointed Shri Ravinderpal Singh as his attorney on 3.9.1995 to do the needful. Shri Ravinderpal Singh then approached Darshan Singh and Smt. Swaran Kaur and requested them to remove the Malba and restore the possession of the plot to respondent No. 1, but they refused to do so, which has forced the filing of the instant suit.

Upon notice, Darshan Singh and Smt. Swaran Kaur appeared and filed their written statement contesting the suit. It was pleaded that they had become owners in possession of the property in dispute on the basis of adverse, hostile and long possession since June,1983 and that the construction has been raised thereon after spending a huge amount, i.e., Rs. ten lacs; that nine rooms, one big hall, one kitchen,one verandah, porch, five toilets and stairs have been constructed in the plot in dispute; that this construction was to the knowledge of the attorney of respondent No. 1,but he never raised any objection to it; that they had raised construction over plot Nos. 61 and 62 at one and the same time during the year 1983-84 and boundary wall around these plots was raised in June,1983; that one room was constructed initially in plot No. 61 for storing building material for raising construction in plot in dispute as well as in plot No. 62; that thereafter, water connection was obtained from the Municipal Committee in the plot in dispute and the electrical connection was also installed in their names therein; and that after raising construction in the plot in dispute, the building was given on lease to Additional Deputy Commissioner, Rural Development and various other tenants from time to time. On the basis of these pleadings, it was averred that respondent No. 1 had no concern with the plot in dispute. The suit was stated to be time barred. They had also alleged that the suit was not maintainable as it was not filed by an authorised person.

Respondent No. 1 had filed replication denying the factum of the construction having been raised in the year 1983 and also denied the possession of Darshan Singh and Smt. Swaran Kaur over the plot in dispute since June,1983. It was pleaded that the plot in dispute was lying vacant up to the year 1989 and was being taken care of by Shri Mohinder Singh Rhency, who had died in the year 1991 and that the construction was raised thereafter in the year 1991-92. The factum of raising of construction on plot Nos. 61 & 62 simultaneously was also denied. It was denied that the boundary wall in was raised in the year 1983.

The parties went to trial on the following issues:

Whether the plaintiff is owner of the plot in dispute on the basis of sale deed dated 4.4.1973 and entitled for possession of the plot? OPP

Whether the suit is within time? OPP

Whether the suit has been filed by duly authorised and competent person? OPP

Whether the defendants have become owners of the property in dispute being in possession since June,1987,by way of adverse, hostile possession? OPD

Whether the plaintiff is stopped to file this suit by his act and conduct? OPD

Whether the suit is not maintainable in the present form? OPD

Relief.

The trial Court as well as the First Appellate Court concluded that respondent No. 1 was owner of the plot in dispute on the strength of a validly executed sale deed and that Darshan Singh and Smt. Swaran Kaur had no concern with it. The plea of adverse possession was also rejected. This has resulted in filing of the instant appeal by Baldev Singh, son of Darshan Singh & Smt. Swaran Kaur. It appears that Smt. Swaran Kaur had died during the pendency of the suit, whereas Darshan Singh expired before filing of the appeal before the First Appellate Court.

Learned Counsel for the appellant has contended that even though respondent No. 1 has set up the sale deed in respect of the plot in dispute, yet, the construction was raised in the year 1983 by the parents of the appellant and, therefore, they had become owner by way of adverse possession which was open and hostile to his knowledge. He further contended that even if the plea of adverse possession is to be rejected, then also, the suit of respondent No. 1 could not have been decreed in view of the fact that the parents of the appellant had raised huge construction over the plot in dispute and the only course open to the Court was to compensate him, rather than decreeing the suit in the manner in which it has been done. In support of his contentions, he placed reliance on R.S. Muthuswami Gounder Vs. A. Annamalai and Others, and Food Corporation of India and Anr. v. Dayal Singh 1991 (1) RLR 10 (P&H).

I have thoughtfully considered the contentions of the learned Counsel for the appellant and have perused the impugned judgments. The fact that respondent nio.1 was owner of the plot in dispute on the basis of validly executed sale deed is not in question as it has been admitted by Darshan Singh and Smt. Swaran Kaur in their written statement.

It is also not in dispute that they were owner of plot No. 62 and now, the appellant and proforma respondents have stepped into their shoes. There is evidence on record from where it is established that Mohinder Singh Rhency had been looking after the plot in dispute and he left India in the year 1989 and died in 1991. There is absolutely no evidence to suggest that the construction over the plot in dispute was raised prior to this as pleaded by Darshan Singh and Smt. Swaran Kaur. If the plea of adverse possession was to be tested on the strength of open and hostile to the knowledge of respondent No. 1, then this fact was necessary to be established before the Courts below.

The plea of respondent No. 1 that the construction was raised after the year 1991 finds corroboration from the testimony of PW2-Ravinder Pal Singh, who has stated that the construction had been carried out in the year 1991-92. In this view of the matter, the plea of adverse possession as raised by the learned Counsel for the appellant has to be rejected outrightly.

Interestingly, the appellant, while appearing as DW1, had stated that there is only plot No. 62 and denied the existence of plot No. 61 altogether, which has been rejected by the First Appellate Court on the ground that it is beyond the pleadings.

The only other evidence which has been brought on record by Darshan Singh and Smt. Swaran Kaur was in the shape of the testimony of DW2-Charanjit Siungh Bhasin, who proved the evaluation report, Exhibit D1 and the site plan, Exhibit D2, which were rightly discarded as they pertained to the year 2006.

Thus, there is no evidence to suggest that the open and hostile possession of Darshan Singh and Smt. Swaran Kaur over the plot in dispute was to the detriment of respondent No. 1 and the factum of the construction being raised in the year 1983-84 remained un-established. Therefore, the findings recorded by the Courts below do not warrant any interference.

The contention of the learned Counsel for the appellant that the suit ought not to have been decreed and rather, only compensation should have been awarded to respondent No. 1 is also erroneous and is liable to be rejected. Darshan Singh and Smt. Swaran Kaur were merely usurper of the plot in dispute to which respondent No. 1 had a rightful claim. They had raised construction over it without any authority and right. If the contention is accepted, then it will amount to putting a seal of approval on a lawless act of Darshan Singh and Smt. Swaran Kaur. The suit of respondent No. 1 was for possession of the plot in dispute regarding which he successfully established his ownership right before the Courts below. The judgments relied upon by the learned Counsel for the appellant do not enhance the case of the appellant in any manner as they pertained to the relief of specific performance where under the Specific Relief Act, a discretion has been vested in the Court u/s 20 thereof to award compensation if the specific performance of a valid and lawful document.

On the basis of the above discussion, no substantial question of law arises for determination in this appeal which is held to be without any merit and is dismissed.