Sawaran Singh vs Sawinder Kaur and Others

K. Kannan, J.—The following substantial questions of law arise for consideration in this second appeal:-

i) Whether the lower Appellate Court was justified in reversing the finding of the trial Court providing for the relief of recovery of possession on the basis of sale deeds propounded by the plaintiff without entering any finding regarding the invalidity of the sales?

ii) Whether a suit for vacant possession could be maintained against the defendants, who claimed to have put up construction in the property for the only reason there is no prayer for demolition of the constructions?

iii) Whether the defendants who were setting up title through the alleged purchase by him through the plaintiff''s vendor non-suit the plaintiff without showing that he had obtained a lawful transfer of the property through registered instrument required under law?

The plaintiff''s suit for possession of property was with reference to Plot Nos. 1 and 2 sourcing the title to the 3rd defendant-Bachni daughter of Ganda Singh, through two documents dated 17.11.1980 and 11.12.1980. The defendants 1 and 2 put up a contention that Bachni had sold the property to one Sawinder Singh on 01.03.1967 and he, in turn, had sold the property for a consideration of Rs. 2,000/-. The defendants did not file any document of sale and the suit stood for consideration on the validity of sales and the plaintiff''s claim for recovery of possession. Since the defendants also contended that they had put up constructions there and had been residing at the property and also had sunk a borewell, a Local Commissioner had been appointed to inspect the property, who returned a report of the existence of the construction. The plaintiff took up a plea that the Commissioner had not properly identified the property and also wanted to contend that there existed no constructions. The trial Court granted the decree finding that the sale deeds referred to by the plaintiff had been established and the defendants had not shown any title better than the plaintiff to resist the claim for recovery of possession. In the appellate Court, the Court took up for consideration only two issues which had been framed by the trial court, namely, issue No. 5 that referred to the maintainability of the suit in the present form for recovery of possession and issue No. 7 regarding the alleged construction of the defendants 1 and 2 and an installation of tubewell in the disputed plots. Having found that the construction did exist, the appellate Court found under issue No. 7 that the suit was not maintainable.

In my view, the decision of the appellate Court is erroneous and is bound to be set aside. If the plaintiff was suing for recovery of possession on assertion of title to the property through his purchases from the 3rd defendant under two documents of sale and the trial Court had also found that the sale deeds to be valid and constituting a transfer of title, the plaintiff could not have been non-suited especially when the defendants had admitted that the original owner was the 3rd defendant. When the contention in defence however was that she sold the property to Sawinder in the year 1961, who, in turn, had sold it to him in 2001, the alleged sale in favour of Sawinder to displace the transfer of title to the plaintiffs had not been produced. Even the alleged purchase by the defendants was also not produced. If the defendants could not secure a better title, then the only issue was whether the defendants had prescribed any title to the property. There was a feeble attempt at the time of trial that the defendants had been in possession of the property for 16 years. Such a contention could not yield to any legal effect without a plea of adverse possession. There was no proof of possession for 16 years and there had been also no finding of adverse possession in favour of the defendants. Consequently, the only issue was whether there was any error in the frame of suit that could have non-suited him.

There is adequate authority that a suit for recovery at vacant possession must also be considered as possession after removal of any structure that existed. In B. Gangadhar Vs. B.G. Rajalingam, the Supreme Court observed that if a decree is passed for recovery of vacant possession, the enforceable right cannot be defeated by causing obstruction through a construction. The bailiff is entitled to remove the obstruction to execute the decree. There is no illegality involved in the court ordering the demolition of construction and delivery of possession to the decree-holder. The suit for vacant possession cannot therefore be defeated by the only fact that there existed some constructions in the property. If those constructions are at the instance of the person, who had no ownership of the same, the only remedy which the defendant can obtain at the time of delivery of the property is to remove the structures at his own cost and surrender vacant possession. At the time of delivery of the property, if the defendants would not remove the structures, the plaintiff is entitled to have the structures demolished and the cost of demolition could also be recovered and mulcted on the defendants. The suit in its present form was perfectly justified and the dismissal of the suit on the alleged non-maintainability was clearly erroneous and against the stated law, referred to above. When the parties sourced their respective claims to title through the same person, purchase by the plaintiff through documents concluded the issue of title against the defendants, when the latter had no documents of transfer anterior in point of time to the plaintiff''s documents. The plaintiffs is entitled to the decree as prayed for and the trial Court''s decree is restored. The second appeal is allowed with cost throughout.