Hasina And Ors vs Dr. Sanwarmal And Ors

All these second appeals arise out of a common judgment and decree dated 04.06.2016 passed by the learned Additional District Judge No.4, Sikar whereby, three civil first appeals preferred against the common judgment and decree dated 13.02.2013 passed by the learned Civil Judge (Senior Division), Sikar dismissing the three suits, have been dismissed.

The facts in brief, as emerge from perusal of the record, are that the predecessor in interest of the appellants-plaintiffs (for brevity "the appellants") namely Sahabuddin filed three civil suits seeking decree of permanent injunction against the respondents- defendants stating therein that the disputed property comprising of a residential plot and a 'guwadi' measuring 2240 sq. yards situated in Ward No.34, Sikar; part of khasra No.421, was gifted to him in the year 1958 by its khatedar Smt. Trilokya Rajya Laxmi and since then he was residing therein along with his family raising construction of residential house. In addition to title over the disputed property through gift, he also claimed his right over the property in question through adverse possession. He alleged that the respondents-defendants were trying to forcibly remove his possession, demolish the construction and prayed for the decree as aforesaid.

The Municipal Council, Sikar in its written statement denied the averments made in the plaint. It was denied that the land in question ever belonged to Smt. Trilokya Rajya Laxmi or was under her possession. It was submitted that the entire land of Khasra No.421 was acquired under the provisions of the Urban Improvement Act, 1959 (for short "the Act of 1959") and its possession was taken on 17.02.1982 under Section 52(7) of the Act of 1959 by the then UIT, Sikar which, at present was with the replying defendant. It was submitted that a residential scheme in the name of "Basant Vihar Yojana" was carved out on the aforesaid land. It was contended that a number of persons challenged the acquisition of the land of Khasra No.421 before the Hon'ble High Court by way of writ petition No.1182/1981 which came to be dismissed by the Hon'ble Court vide order dated 30.07.1981 and the Division Bench Special Civil Appeal No.181/1981 was also dismissed by Hon'ble Division Bench vide its order dated 22.09.1981; but, the plaintiff did not assail the land acquisition proceedings as he did not have any right/interest in the land of Khasra No.421. It was contended that no construction of the plaintiff exists on the land in question except a small incomplete construction which he tried to raise in the year 1981 inviting notice by the replying defendant. It was averred that since the plaintiff has not approached the Court with clean hands, he was not entitled to any equitable relief of injunction. The private respondent-defendant Dr. Sanwarmal submitted that he has purchased plot No.D-20 in open auction from the defendant No.2, Municipal Council, Sikar and was raising construction over it under the permission from the Municipal Council. He filed a counter-claim seeking decree of injunction against the plaintiff.

Since, all the three suits pertained to common land, the learned trial Court consolidated all these three suits for trial and framed common issues in Suit No.13/2002. The learned trial Court, vide its judgment and decree dated 13.02.2013, dismissed all the three suits. The three civil first appeals preferred by the appellants-plaintiffs have also been dismissed by the learned appellate Court vide its judgment and decree dated 04.06.2016 which have been impugned herein by way of three separate second appeals.

Assailing the impugned judgment and decree, learned counsel for the appellants contended that the findings of the learned Courts below are against the evidence on record. He submitted that the appellants were able to establish their title on land in question from the material on record and hence, the learned first appellate Court erred in dismissing the appeals. In support of his contentions, learned counsel for the appellants has heavily relied upon the affidavit dated 25.08.2016 of "Rao Raja Vikram Singh (Sikar)" filed along with an application under Order 41 Rule 27 CPC wherein the deponent has claimed ownership of Smt. Trilokya Rajya Laxmi over the land of Khasra No.421 and oral gift of a part of this land measuring 2240 sq. yards in favour of Sahabuddin. Learned counsel submitted that the application filed under Order 41 Rule 27 CPC be allowed, the affidavit be taken on record and the impugned judgment and decree be quashed and set aside in the light of averments contained in the affidavit.

Heard learned counsel for the appellants and perused the record.

Insofar, the application filed by the appellants under Order 41 Rule 27 CPC is concerned; firstly, it is bereft of any reason as to why the appellants did not make any attempt to obtain the affidavit sought to be placed on record along with this application, at the appropriate stage. Secondly, it is trite that the averments in an affidavit cannot be taken as a document/proof of title or a valid gift in accordance with law. In these circumstances, the application does not deserve acceptance and is dismissed.

The appellants have claimed right and title over the land in question through gift allegedly made in favour of Sahabuddin in the year 1958 by Smt. Trilokya Rajya Laxmi; but, neither they could establish that Smt. Trilokya Rajya Laxmi was having any title over the land in question; part of Khasra No.421 or that the gift allegedly made in the year 1958 was in accordance with law. Section 123 of the Transfer of Property Act, 1882 and Section 17 of the Registration Act, 1908, in no uncertain term, envisage gift of any immovable property through a registered deed only. Admittedly, there is no such registered gift deed in favour of Sahabuddin. In these circumstances, in considered opinion of this Court, learned Courts below have committed no error in rejecting the contention of the appellants as to their title over the land in question through gift allegedly made in the year 1958.

Another limb of claim of the appellants over the land in question through adverse possession does not merit acceptance for the reasons that they have failed to establish their peaceful settled and uninterrupted possession over the land in question for the requisite period; rather, from the material on record, it is established that when the predecessor in the interest of the appellants has tried to raise construction on the land in question in the year 1981, it immediately invited notice from the respondent- Municipal Council, Sikar. Even otherwise also, there is concurrent findings of facts as to the land of Khasra No.421 having been acquired under the provisions of the Act of 1959 and thereafter, any encroachment by the predecessor in interest of the appellants, cannot be countenanced as lawful possession. The Hon'ble Apex Court of India has, in case of Tamil Nadu Housing Board versus A. Viswam (Dead) by Lrs. reported in AIR 1996 Supreme Court 3377, held as under:-

"Thus considered, the title of the land in Survey No. 140/4 having been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay any claim to the said acquired land once over and claim injunction on that basis. The injunction, therefore, cannot be issued against the true owner, namely, the Housing Board in whom the land ultimately stood vested and then stood transferred to Municipal Corporation. A trespasser can not claim injunction against the owner nor can the court to issue the same."

Even otherwise also, it is settled proposition of law that no injunction can be issued in favour of a trespasser against a true owner. The Hon'ble Apex Court of India has, in case of Premji Ratansey Shah and others vs. Union of India and others reported in (1994) 5 SCC 547 held as under:-

"It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."

The appellants have failed to show that they were in lawful possession of the land in question.

There are concurrent findings of the fact and the learned counsel for the appellants has failed to point out any illegality or perversity in the findings recorded by the learned Courts below warranting interference by this Court in civil second appeals. No substantial question of law arises in these second appeals; resultantly, the same are dismissed.

A copy of this order be placed in each connected file.