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Judgment
Rakesh Kainthla, J
The present appeal is directed against the judgment and decree passed by learned District Judge, Hamirpur, vide which the appeal filed by the appellant (plaintiff before the learned Trial Court) was dismissed and the judgment and decree passed by learned Civil Judge, Junior Division, Nadaun was upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)
Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit seeking a declaration that he is co -owner in possession of the land comprised in Khata no. 14 min, Khatauni 15 min, Khasra no. 70 area 1 kanal 11 Marlas alongwith two shops and one room situated in Village Bharthi Mauza Balduhak, Tehsil Nadaun, District Hamirpur H.P. as recorded in Jamabandi for the year 2001-2002 (hereinafter referred to as the suit land) and the defendants have no right, title or interest in the suit land. A consequential relief of permanent prohibitory injunction for restraining the defendants from interfering with the possession of the plaintiff and a mandatory injunction directing defendant no. 1 Anita Devi to handover the vacant possession of the shop to the plaintiff were also sought. It was asserted that the plaintiff is in exclusive possession as a co-sharer of 3the suit land. He constructed one room, one shop and a double-storeyed shop on a portion of the suit land in the year 1989-90 after he retired from the service. The plaintiff allowed late Sh. Kuldeep Kumar, husband of defendant no.1, to reside on the first floor of shop no.2 and run a shop on the ground floor of Shop no.2 in the year 1994. Sh. Kuldeep Kumar died in an accident on 03.12.2001. Defendant no. 2 is the father of defendant no. 1 and defendant no. 3 is the brother of defendant no.1. They pressurized the plaintiff to mutate the land, room and shop in their names. They also threatened to implicate the plaintiff and his family members in a false criminal case in case of refusal. They obstructed the plaintiff from raising any further construction. Defendant no.1 also refused to handover the vacant possession of the shop to the plaintiff on demand; hence, the suit was filed to seek the relief mentioned above.
The suit was opposed by the defendants by filing a written statement taking preliminary objections regarding lack of maintainability, cause of action and locus standi, improper valuation, defendant no.1 having become owner by way of adverse possession, defendant no.1 having a right over the suit land by way of maintenance and the suit being bad for non-joinder of necessary parties. The contents of the plaint were denied on merits. It was asserted that the plaintiff filed the present suit with an ulterior purpose. Defendant no.1 is the widow of the pre-deceased son of the plaintiff. The plaintiff objects to the help rendered by the father and brother of defendant no. 1. The husband of defendant no.1 late Sh. Kuldeep Kumar constructed the house and shops with due permission, full moral help and consent of the plaintiff. Sh. Kuldeep Kumar constructed the shop with the help of the loan and ₹50,000/- provided by defendant no.2. Silver and gold ornaments of defendant no.1 were sold to finance the construction work. The construction was raised in the year 1989-90. The electricity connection was taken by Kuldeep Kumar. Kuldeep Kumar used to pay the house tax during his lifetime. Defendant no.1 was paying the tax after the death of Kuldeep Kumar. The license was also issued in the name of Kuldeep Kumar. The plaintiff is the owner of the land under the house and shop, but he has no right, title or interest over the shops and the house. He has no right to seek an injunction against the defendants. The plaintiff did not spend any money on the construction of the house. The plaintiff and his family members threatened to remove defendant no.1 permanently from the suit land. They also attacked defendant no.1. The matter was reported and FIR no. 68 of 2003 was registered in the police station for the commission of offences punishable under Sections 451, 323 and 506 read with Section 34 of Indian Penal Code. The plaintiff has a limited share in the suit land and the maximum share was owned by Sh. Ganga Ram. The suit is bad for non-joinder of Sh. Ganga Ram, hence, it was prayed that the suit be dismissed.
A replication denying the contents of the written statement and affirming those of the plaint was filed. The following issues were framed by the learned Trial Court on 28.04.2004:-
Whether the plaintiff is in exclusive possession of the land comprised in Khata no. 14. Khatauni no. 15, Khasra no. 17 as has been alleged? OPP
Whether defendant no.1 is in permissive possession as license of shop no. 2 as shown in the site plan as alleged? OPP
Whether the plaintiff is entitled for vacant possession of shop no.2 as alleged? OPP
Whether the suit is not maintainable as alleged? OPD
Whether the plaintiff has no cause of action to file the suit as alleged? OPD.
Whether defendant no.1 has become owner of the suit land by virtue of adverse possession? OPD.
Whether the plaintiff has no locus standi to file the present suit as alleged? OPD.
Whether the suit is liable to be dismissed for non-joinder of necessary parties as alleged? OPD.
Whether the defendants are entitled for special cost u/s 35-A CPC as alleged? OPD.
Whether the suit has not been properly valued as alleged?
The parties were called upon to produce the evidence and the plaintiff examined himself (PW-1), Subhash Chand (PW-2), Ganga Ram (PW-3) and Gian Chand (PW-4). Defendant no. 1 examined herself (DW-1), Prem Chand (DW-2) and Amar Singh (DW- 3). The plaintiff examined Braham Dass in rebuttal (PW-5).
The learned Trial Court held that the plea of the plaintiff that he had raised construction on the suit land was not proved. He admitted that an electricity meter was installed in the name of Sh. Kuldeep Kumar and licence was also issued in his name. Sh. Kuldeep Kumar was paying the house tax and a ration card was issued in his name mentioning the suit land as his address. The plea of the defendants that the house was constructed with the active knowledge of the plaintiff was highly probable. It was corroborated by the payment of house tax and electricity bill. The status of the plaintiff would be that of a licensee and since permanent structure was allowed to be raised, the licence would become irrevocable in view of Section 60 of the Easement Act. The plaintiff cannot seek possession; hence, the learned Trial Court answered issue nos. 1 to 10 in negative and dismissed the suit of the plaintiff.
Being aggrieved from the judgment and decree passed by the learned Trial Court, an appeal was filed before the learned District Judge, Hamirpur. Ld. District Judge affirmed the findings recorded by the learned Trial Court that the premises was constructed by Sh. Kuldeep Kumar and the plaintiff was not entitled to take possession on the ground that the land underneath the premises belonged to him. Defendant no.1 being a widowed daughter-in-law has a statutory right of maintenance and residence against her father-in-law. The plaintiff has no right to evict her from the premises; hence, the learned First Appellate Court dismissed the appeal.
Being aggrieved by the judgment and decree passed by the learned trial court and First Appellate Court, the present appeal has been filed asserting that the judgments and decrees are against the law and facts. The finding recorded by learned First Appellate Court that defendant no.1 being a daughter-in-law is entitled to maintenance and retain possession is not correct. Defendant no.1 had taken a plea of adverse possession and therefore, she could not be allowed to retain the possession. Learned Courts below erred in holding the house was constructed by Sh. Kuldeep Kumar, the husband of defendant no. 1. There was no evidence to show the actual investment of money. The electricity meter of one shop and room above was in the name of the husband of defendant no.1. The meters in the other room and shop were in the name of Sh. Surender Kumar and Sh. Sudarshan Kumar. The plaintiff had already transferred the land in favour of Sh. Kuldeep Kumar during his lifetime, which was mutated in the name of defendant no.1 after the death of Sh. Kuldeep Kumar. Defendant no.1 is not entitled to retain the possession, hence, it was prayed that the present appeal be allowed, judgment and decree passed by learned Trial Court and learned First Appellate Court be set aside.
The appeal was admitted on the following substantial questions of law:-
“1. Whether the plea of adverse possession as claimed by respondent no.1 in her written statement admits the ownership of the Appellant and finding recorded in the impugned judgment and decree against the Appellant qua ownership of property in question is not legally sustainable?”
I have heard Sh. Sumeet Raj Sharma, learned counsel for LRs no. 1(a) and 1(b) of the appellant/plaintiff, Sh. Bhuvnesh Sharma learned Senior Counsel for respondent/defendant no.1 and Sh. Pushpender Singh Jaswal, learned counsel for respondent/defendant no.2.
Sh. Sumeet Raj Sharma learned counsel for LRs no.1(a) and (b) submitted that the learned Courts below erred in holding that the plaintiff had granted a licence to Sh. Kuldeep Kumar, which had become irrevocable due to the construction raised by Kuldeep Kumar. The defendants had taken a plea of adverse possession and the title of the plaintiff was not in dispute. Learned Courts below erred in allowing the plea of the licence.Therefore, he prayed that the present appeal be allowed, and judgment and decree passed by the learned Trial Court be set aside.
Sh. Bhuvnesh Sharma, learned Senior Counsel supported the judgment and decree passed by learned Trial Court and submitted that no interference is required with the same. He further submitted that jurisdiction of this Court is confined to determining the substantial question of law and this Court cannot decide the matter as a third Court on facts. Hence, he prayed that the appeal be dismissed.
Sh. Pushpender Singh Jaswal, learend counsel for respondent/defendant no. 2 adopted the submissions of Sh. Bhuvnesh Sharma, learned Senior Counsel and prayed that the appeal be dismissed.
I have given considerable thought to the rival submissions at the bar and gone through the record carefully.
Substantial question of law.
There is a force in the submissions of Sh. Bhuvnesh Sharma learned Senior Counsel that the jurisdiction of this Court is confined to determining the substantial question of law framed at the time of the admission of the appeal.This position was recognized in Union of India v. N.N. Srivastava, 1986 SCC OnLine Del 109= 1986 (11) DRJ 213 as under:
“4. I may mention here that under the amended provisions of Section 100 of the Code of Civil Procedure, a Second Appeal lies only on a substantial question of law and a substantial question of law had to be formulated. It is provided in Sub- section (5) that the appeal has to be heard only on the question so formulated. As a matter of fact, the admission order shows that the substantial questions of law are those formulated in paragraph no. 16 of the grounds and, paragraph no. 16 of the grounds does not raise any questions of law relating to misreading of evidence or misreading of the record. Therefore, the scope of this appeal is of a very restricted type.”
In Raman dead13by LRs vs. R. Natarjan, 2022 (10) SCC 143:2022 SCC OnLine SC 1212, the High Court reversed the findings on the questions of limitation without framing a substantial question of law. It was held by the Hon’ble Supreme Court that the High Court erred in reversing a finding on limitation without framing a substantial question of law. It was observed(on page 147):-
“Next, the High Court reversed the finding of the First Appellate Court on the question of limitation, without framing a substantial question of law and without even referring to the statutory provisions”.
Therefore, it is not permissible for this Court to go into any other question except the substantial question of law framed at the time of admission.
The defendant took a preliminary objection no. 4 that defendant no.1 has become the owner of the suit land to the extent of area under the structure by way of adverse possession. They also pleaded in para 1 of the plaint that the husband of defendant no.1, namely, Sh. Kuldeep Kumar constructed the house and shop with due permission, full moral help and consent of the plaintiff. The learned Trial Court had rightly held in paragraph no. 32, while discussing Issue no.6 that no evidence was led to prove that the possession of defendant no.1 was hostile, continuous, and uninterrupted to the denial of the right of the plaintiff. Defendant no.1 had admitted that she is in permissive possession; therefore, the question of adverse possession does not arise. It was laid down by the Hon’ble Supreme Court in Achal Reddi vs. Ramakrishna Reddiar, 1990 (4) SCC 706, that where
a person is in possession under a title involving the recognition of the owner's title, his possession will not be taken as adverse possession. It was observed:-
“The well-settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well-recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession, there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in a case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case, the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against the right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.”
Similarly, it was held in Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591 that a person who enters into possession as a licensee cannot claim adverse possession. It was observed:-
“5. As regards adverse possession, it was not disputed even by the trial Court that the appellant entered into possession, over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. Possession of a co-owner or a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.”
In the present case, defendant no.1 had taken a plea that her husband was permitted to raise construction by the plaintiff. She specifically stated in her examination-in-chief that the plaintiff asked her husband to complete the construction, as soon as possible, so that no other person could obstruct the same. The plaintiff visited the place of construction 2-4 times. This clearly shows that she never denied the title of the real owner. Hence, the courts had rightly held that the plea of adverse possession was not proved.
Both the learned Courts below held that the plaintiff was the owner of the land underneath the construction. They held that the plaintiff was not entitled to take possession of the structure because he had permitted the predecessor-in-interest of the defendant to raise construction. Therefore, both the learned Courts below have concurrently found the plaintiff to be the owner of the land underneath the structure. However, they declined possession on the ground that the licence had become irrevocable. Hence, the fact that the plaintiff is the owner of the land underneath the structure would not assist him and the plea taken by the defendants regarding adverse possession will not help the plaintiff in any manner. The substantial question of law is answered accordingly.
Final Order:
In view of the above, I find no merit in the present appeal and the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of.