Raman Lal (D.) through L.Rs. vs Smt. Champi (D.) through L.Rs. and Others

B. K. Rathi, J.—The dispute in this case between the parties is regarding two shops situated in Barhasalni Hukam Ganj-Fillap Ganj Kacheri Ghat, Agra. Raman Lal, plaintiff who has since died filed the Suit No. 424 of 1965 against Pooran Chand defendant (since deceased) for eviction and recovery of rent and damages. In brief his case is that Thakur Visheshwar Singh and Kunwar Pratap Singh were owners of the shops and defendant was tenant at the rate of rent of Rs. 8 per month. That the plaintiff purchased the shops from the owners Thakur Visheshwar Singh and Kunwar Pratap Singh by registered sale deed dated 15.7.1964 and became owner and landlord. That inspite of the service of the notice dated 3.9.1964 the shops were not vacated nor the rent has been paid hence and suit was filed. After the written statement was filed denying the title of the plaintiff, the relief of recovery of possession was claimed on the basis of the title also.

The deceased defendant Poofan Chand contested the suit. His case is that Thakur Visheshwar Singh and Kunwar. Pratap Singh were never owners of the shops. That the defendant was in occupation of the shops since much before 1948. In the year 1948, the defendant constructed kotha on his land called as shop and verandah. The defendant with his own money raised the constructions and he is the owner of the property. In alternative, it was also pleaded that the plaintiff or his predecessors were not in possession of the property in diapute since more than 12 years before the institution of the suit. The defendant, therefore, became owner by adverse possession and the suit is barred by time.

The trial court framed necessary issues and held that the defendant is the owner of the property in dispute by adverse possession. Accordingly, the suit was dismissed with costs. The appeal of the appellant was also dismissed. Therefore, this second appeal was filed.

This second appeal was admitted on 12.9.1980 on question Nos. 1 and 2 as mentioned in the memo of appeal, which are as follows :

"1. Whether the burden of proof of adverse possession lies upon the plaintiff or upon the defendant?

Whether a mere pleading that possession was adverse is sufficient or whether it is necessary to give details in the pleadings as to how and when the possession become adverse?"

I have heard Shri Prakash Gupta, learned counsel for the appellant and Shri B. Dayal, learned counsel for respondents and have perused the entire record.

It has been argued that both the courts below have committed error on substantial question of law in holding that the defendants were owners by adverse possession. It is true that no counter-foils of the receipt of rent issued to the respondents have been produced though the plaintiff examined himself and also his predecessor Thakur Visheshwar Singh and they admitted that counterfoils receipts are in existence. But in the face of other evidence, the same is not material.

The learned counsel for the appellant has referred to the three documents exhibits 12, 13 and 14 which are municipal assessments for the years 1964 to 1969, 1949 to 1954 and 1954 to 1959. In these assessments, Thakur Visheshwar Singh has been mentioned to be the owner of the disputed shops and the defendant Pooran Chand (deceased) as tenant. A perusal of the judgments of the Courts below show that these assessments were rejected on perverse and non-existent ground. It has been mentioned by the appellate court that in the assessment the rate of rent has been mentioned to be Rs. 45 per annum in these assessments, whereas according to the plaintiffs allegation the rate of rent was Rs. 96 per annum. In my opinion, the courts below grossly erred in rejecting the assessments on this ground and have ignored the facts which are in the knowledge of common man. Everybody knows that the building is usually got assessed for lesser amount to save the tax. The fact as to what is the annual rent mentioned in the assessment is not at all relevant for consideration whether the defendant was tenant. It would become relevant if the question is as to what is the rate of rent. The fact is that the defendant was mentioned as tenant and Thakur Visheshwar Singh as owner. There is no explanation as to why the defendant was mentioned as tenant in the said shop. It became more important as the defendant in the entire written statement has not alleged as to from where he had got the land and how he acquired the land. The only allegation is that he is in possession of the land since before 1948. However, he has not mentioned a single word as from where he got the land. These facts proved beyond doubt that the defendant was tenant of shops.

The courts below have also referred to the notices received by the defendant regarding raising of the unauthorised constructions and the receipt regarding payment of penalty. These documents do show that some unauthorised constructions were raised by the defendant regarding which notices were given to him. The contention of the learned counsel for the appellant is that these documents do not relate to the disputed shops. These documents are regarding the constructions made in the house. From the details of the constructions raised mentioned in these notices, it is not proved that they relate to the disputed shops. The trial court was misguided by the fact that the houses in which the defendant was living is in the name of his bhabhi and, therefore, notice should have been received from the Nagar Palika by his bhaibhi. This observation is against the common knowledge. The title of the house was not relevant and the notice was given to the persons who raised the constructions. Therefore, the courts below have erred in recording the finding that these documents relate to the disputed shops and the same were constructed by the defendants.

In any case, even if contention of the defendant is accepted that he constructed kotha and varandah in the disputed premises, it does not make any difference. If a tenant raises certain new constructions in the tenanted premises, he does not become owner of the same nor the possession becomes adverse. If the constructions were made in the tenanted premises, the tenant will continue to be the tenant of the same as well and cannot become the owner.

All these facts discussed above show that the defendant was tenant of the shops in dispute. If it was so, it was for him to prove that he became owner by adverse possession. He did not plead as to how and when he came into the adverse possession of the disputed shops. He should have pleaded as to how the possession became adverse and when the same became adverse and hostile to the landlord. Once this fact is established that the defendant was at one time tenant of the disputed shops, heavy burden lies upon him to prove adverse possession. In my opinion, the adverse possession has not been established in this case and, therefore, the defendants have not acquired title of the disputed shops by adverse possession.

Accordingly, the suit should have been decreed and both the courts below have committed substantial error in law in dismissing the suit.

The appeal is accordingly allowed and the judgment and decree of both the courts below are set aside. The suit of the plaintiff-appellant for recovery of possession of the disputed shops and for recovery of Rs. 82.46 paise as the arrears of rent is decreed. The plaintiff shall also be entitled to recover damages at the rate of Rs. 8 per month from the date the suit was filed till the date of actual recovery of possession, on payment of required court fee in the execution.