Baldev Singh vs Kulbir Singh and Others

Sabina, J.—This order shall dispose of RSA Nos. 4369 and 4370 of 2006 as these have arisen out of same suit/counter claim.

Plaintiff Baldev Singh filed a suit for permanent injunction inter alia restraining the defendants from interfering in the land dispute. The suit of the plaintiff was dismissed and counter claim of the defendants was allowed by the Civil Judge (Jr. Divn.) Amritsar vide judgment and decree dated 26.10.1998. In appeal, the said judgment and decree were upheld by the Additional District Judge (Adhoc), Amritsar vide judgment and decree dated 5.10.2006. Hence, the present appeals by the plaintiff.

Brief facts of the case, as noticed by the lower appellate Court in para Nos. 1 to 4 of its judgment, are as under:

The facts of the case briefly stated are that Baldev Singh, appellant/plaintiff filed suit for permanent injunction for restraining the defendants from interfering in his possession over the property in dispute. It was alleged in the plaint that the plaintiff is in possession of the land in dispute measuring 24 K-11 M. detailed in the head note of the plaint and he is cultivating the said land as prospective vendee under the agreement to sell dated 12.8.1975 executed by the defendants and their deceased mother Jatto @ Jind Kaur in his favour followed by another agreement to sell dated 17.6.76 through which period was extended for execution of the Sale Deed. Sale Deed was to be executed by the defendant after getting permission from the competent authority under Urban Land Ceiling and Regulation Act, 1976. The defendants have not been able to get permission from the competent authority, as per agreement. Smt. Jatto had died and the defendants are his legal representatives. The defendants are threatening to take forcible possession of the land with the help of their husband and relations. They tried to interfere in his possession over the suit land. He asked the defendants time and again not to take law in their own hands, but they refused. As such, he is entitled to permanent injunction restraining the defendants from interfering in his possession, forcibly on the land in dispute.

The suit was contested by the defendants. In their written statement they took preliminary objections that the suit is not maintainable. Plaintiff had not come to Court with clean hands and has concealed facts. The possession of the plaintiff is permissive and on behalf of the owners and as such, he is not entitled to injunction, plaintiff has got no locus standi to file the suit, the suit is not maintainable in the present form, the correct Khasra Nos. of the property have not been mentioned and that entries in the revenue record are wrong. Regarding merits, it was stated that the possession of the plaintiff is under agreement to sell executed by the defendant in favour of the plaintiff. It was admitted that the plaintiff was in possession under agreement to sell. The defendants pleaded that the Sale Deed was to be executed after getting permission from the competent authority and they actually applied for the permission but permission was refused by the competent authority and as such, Sale Deed could not be executed as per agreement. They have been demanding possession from the plaintiff and he had been promising to give the same. The plaintiff in November, 1994 refused to give possession. It was denied by the defendants that they have tried to take forcibly possession of the property or they intended to take forcible possession of the land.

Defendants filed counter claim for recovery of possession, pleading therein that they being owner of the property in dispute and permission to execute the Sale Deed in favour of the plaintiff as per agreement having been refused by the competent authority, they are entitled to take possession of the property in dispute from the plaintiffs. Possession of the plaintiffs was permissive and was on their bahalf, and as such, they are entitled to decree for possession of the property in dispute.

In the replication filed by the plaintiff, allegations made in the written statement were denied and those made in the plaint were reiterated. In the replication, it was pleaded by the plaintiff that his possession has been adverse, hostile, uninterrupted for more than 12 years, to the knowledge of the defendants and world at large and he has even become owner of the property through adverse possession. His possession not being permissible, he acquired title in the property in dispute.

On the pleadings of the parties, following issues were framed by the trial Court:

Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP

Whether the defendant is entitled to relief of possession as claimed in the counter-claim? OPD

Whether the plaintiff No. I have become owner in possession of the suit land on the basis of adverse possession? OPP

Whether the plaintiffs have got no locus standi to file the present suit? OPP

Relief.

The following additional issues were also framed by the trial Court on 18.3.1997:

4A Whether the defendants are estopped by their own act and conduct from filing the present counter claim? OPP

4B Whether the counter claim is within time? OPD

Learned Counsel for the appellant has submitted that the possession of the plaintiff was by way of adverse possession after the date for execution of the sale deed had lapsed. The plaintiff had been put in possession of the suit property on the basis of an agreement to sell executed between the parties. However, permission was not granted to the defendants to sell the suit property by the competent authority and from the said date i.e. 20.7.1976, the possession of the plaintiff over the suit property was adverse to that of the defendants. In support of his arguments, learned Counsel has placed reliance on Shiv Kumar and Ors. v. Ajodhia Nath and Ors. AIR 1972 J&K 125

Learned Counsel for the respondents, on the other hand, has submitted that the plaintiff was required to state in the plaint itself that he was in possession of the suit property by way of adverse possession and how and when it became adverse. In the present case, no such averment was made by the plaintiff in the suit. It was only in the replication filed by the plaintiff to the written statement filed by the defendants, plaintiff had averred that he had become owner of the property in dispute by way of adverse possession. In support of his arguments, learned Counsel has placed reliance on a decision of the Apex Court in Achal Reddi Vs. Ramakrishna Reddiar and Others, , wherein it was held that adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be said to be adverse.

Learned Counsel has next placed reliance on a decision of the Apex Court in Dr. Mahesh Chand Sharma Vs. Smt. Raj Kumar Sharma and others, , wherein it was held that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession.

After hearing learned Counsel for the parties, I am of the opinion that the present appeals deserve to be dismissed.

The facts in this case are not in dispute. Admittedly, an agreement to sell with regard to property in dispute was executed by the defendants in favour of the plaintiff. The said agreement to sell is Ex.P-1. Sale deed was to be executed on or before 20.6.1976. Rs. 2,000/- were paid as earnest money by the plaintiff to the vendors. There was one recital in the agreement that the defendants would apply and get permission from the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976. Parties again entered into another agreement regarding the same land on 17.6.1976 and the date for execution and registration of sale deed was extended to 15.9.78. The plaintiff was handed over the possession of the suit property in terms of the agreement to sell.

In these circumstances, the possession of the plaintiff was permissive as per the agreement. In order to prove that the possession of the plaintiff was adverse, there must be a specific pleading of dis-claiming title from a particular date, hostile assertion thereof and setting up of adverse possession from a particular date to the knowledge of true owner and his acquiescence for the long continuous uninterrupted period. A permissive possession at inception does not become adverse merely by passing of long time in the absence of requisite animus. The burden is always on the person claiming adverse possession. A person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another''s title. In the absence of specific pleading of all the necessary ingredients, plea of adverse possession has to fail. No presumption of fact can be drawn in favour of a person claiming adverse possession. There is no equity in favour of such person.

In the present case, the plaintiff had not pleaded adverse possession in the plaint. It was only in the replication that plea of adverse possession was taken. The plaintiff had got the possession of the suit property on the basis of an agreement to sell and continued to remain in possession although sale deed was not executed in his favour. At the most the possession of the plaintiff can be said to be permissive. Admittedly, the defendants are owners of the suit property along with their mother. Hence, the Courts below have rightly dismissed the suit of the plaintiff-appellant and have rightly decreed the counter claim filed by the defendants seeking possession.

The judgment relied upon by learned Counsel for the appellant fails to advance the case of the appellant as the appellant had failed to assert and establish that he had become owner by way of adverse possession.

No substantial question of law arises in these regular second appeals. Accordingly, the same are dismissed.