Wednesday, 25 May 2016

When plea of adverse possession is not proved?

As far as issue No. 2 is concerned, Respondent No. 1 has no right to claim ownership over the suit property on the ground of adverse possession by taking a plea of sham transaction. This plea of the Respondent is not only prohibited by the Benami Transactions (Prohibition) Act, 1988, but makes the Appellants absolute owner.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 2151 of 2016 (Arising out of SLP (C) No. 2489 of 2011)
Decided On: 01.03.2016
Appellants: Prem Nath Khanna and Ors.
Vs.
Respondent: Narinder Nath Kapoor and Ors.
Hon'ble Judges/Coram:V. Gopala Gowda and U.U. Lalit, JJ.

Citation; AIR 2016 SC1433


2. The present appeal arises out of the impugned judgment and order dated 20.07.2009 passed by the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal No. 1661 of 2005, whereby the said appeal filed by the Respondent herein was allowed and the judgment and order dated 31.03.2005 passed by the learned Additional District Judge, Kurukshetra decreeing the suit in favour of the Appellants herein was set aside.
3. The brief facts of the case required to appreciate the rival legal contentions advanced on behalf of the parties are stated hereunder:
4. The Appellant No. 1 herein along with his mother Kaushalya Rani, vide sale deed dated 17.10.1996, purchased land measuring 41 Kanals 41/2 Marlas being 5/25th share of land measuring 206 Kanals 3 Marlas situated within the revenue estate of village Dhurala according to jamabandi for the year 1960-1961. Prior to the execution of the said sale deed, the land in question had been leased to the Respondent No. 1 herein, Narinder Nath Kapoor (since deceased) for 20 years from 1966 to 1986. In addition to the abovementioned land, the mother of the Appellant No. 1 had also purchased land measuring 79 Kanals 12 Marlas, which amounted to 3/4th share of land measuring 106 Kanals 3 Marlas situated within the revenue estate of village Dhurala, Tehsil Thanesar, District, Kurukshetra (according to jamabandi for the year 1960-61) vide sale deed dated 07.01.1967 which was also leased by its previous owners to Respondent No. 1 for the period of 20 years i.e. 1967 to 1987 vide lease deed dated 06.01.1967.
5. After the death of the mother of Appellant No. 1, Respondent No. 1 filed Civil Suit No. 655 of 1987 before learned Senior Sub Judge, Kurukshetra against the previous owners of the suit property i.e. Kewal Krishan and Rajinder Krishan for declaration that he is the owner in possession of the suit property. The learned Sub Judge decreed the suit ex-parte in favour of the Respondent No. 1 vide judgment and order dated 10.02.1988.
6. Aggrieved of the aforementioned ex-parte decree, the Appellants filed Suit No. 133/2002 of 1990 for declaration of title and joint possession over the said suit property as well as declaration to the effect that the judgment and order passed in the Civil Suit No. 655 of 1987 is not binding upon the Appellants as the Defendants therein Kewal Krishan and Rajinder Krishan were no more the owners of the suit land as the same had been purchased by them vide registered sale deeds dated 17.10.1966 and 07.01.1967.
7. The Civil Suit No. 133/2002 of 1990 was dismissed by learned Civil Judge (Sr. Divn.), Kurukshetra vide order dated 20.08.2002. The learned Civil Judge held that there was no valid and cogent reason to declare the judgment and order dated 10.02.1988 as illegal, null and void and that the Plaintiff-Appellants were not entitled for the relief of joint possession whatsoever. It was further held that Respondent No. 1 had perfected his title over the suit land by prescription and adverse possession.
8. Aggrieved of the aforementioned judgment and order, the Appellants filed Civil Appeal No. 16 of 2002/2004 before the Additional District Judge challenging the correctness of the same. The learned Additional District Judge allowed the appeal vide judgment and order dated 31.03.2005 and held that Respondent No. 1 cannot be held to have acquired legal right to claim ownership over the suit property by pleading adverse possession, as mere mutation entry in his name in the record does not create or confer title in the immoveable property.
9. Thereafter, Respondent No. 1 filed Regular Second Appeal No. 1661 of 2005 before the High Court of Punjab and Haryana at Chandigarh against the said order. Vide judgment and order dated 20.07.2009, the High Court allowed the appeal and set aside the judgment and order passed by the first appellate court. The High Court held as under:
In this case also, neither the possession was delivered to the Plaintiffs nor it was promised that it would ever be delivered to them. The argument that no evidence could be led to prove the nature of the document except the contents thereof, cannot be sustained as it is well settled that the plea that title has not passed on the execution of the sale deed can be raised from the contents of the document and intention of the parties behind the execution of the document which could be gathered from the recitals in the document and from other attending circumstances brought on record i.e. circumstantial evidence, conduct of the parties and inconsistencies in the recitals of the document. After examining the entire evidence, the contents of the documents and other intrinsic evidence, it is open for the court to infer that the contents of the document intended not to transfer title. This is what the lower appellate court has done and it fell in error in touching the issue of sham transaction and proceeded on the assumption that since the sale deeds were admitted to have been executed, therefore, the Plaintiffs are the owners.
Hence, the present appeal.
10. Mr. V.K. Gupta, the learned senior Counsel appearing on behalf of the Appellants-plaintiffs contends that the High Court erred in exercising power Under Section 100 of Code of Civil Procedure, 1908 by framing pure questions of fact as 'substantial questions of law' and answering the same in favour of the deceased Respondent No. 1 herein. The learned senior Counsel contends that the High Court erred in setting aside the well reasoned judgment and order dated 31.03.2005 passed by the learned Additional District Judge.
11. The learned senior Counsel further contends that the Appellants are the rightful owners of the suit property and have been deprived of their right by deceased Respondent No. 1 and his legal heirs who took advantage of their absence from the village and falsely sought an ex-parte decree in their favour by filing Civil Suit No. 655 of 1987 for declaration of their ownership over the suit property by adverse possession.
12. The learned senior Counsel further contends that the High Court erred in not appreciating the fact that the ex-parte decree dated 10.02.1988 has no force in law, as the same was passed against the predecessors in the interest of the present Appellants and not against the present Appellants, who were not even party to the said suit and therefore, the decision of the same is not binding on them.
13. On the other hand, Ms. Naresh Bakshi, the learned Counsel appearing on behalf of the Respondents contends that the High Court was right in setting aside the judgment and order of the first appellate court as the same is legal and does not suffer from any infirmity. The same does not warrant any interference with by this Court.
14. The learned Counsel further brought to the attention of this Court the fact that the Appellants intentionally concealed the material fact that Respondent No. 4 herein had already approached this Court by way of filing S.L.P.C.C. No. 7808 of 2010 (the facts of which were identical to the facts of the instant case), which relates to the same suit land. The said case was dismissed by this Court vide order dated 17.05.2010. This non-disclosure on the part of the Appellants shows their intention to mislead this Court. The dismissal of S.L.P. CC No. 7808 of 2010 resulted in the dismissal of Civil Suit No. 133/2002 of 1990 filed by the Appellants. The learned Counsel contends that instant case should have been dismissed at the threshold, as not only have the Appellants concealed material facts from this Court, but also stated incorrect facts in the affidavit. The learned Counsel places reliance on the decisions of this Court in the cases of Hari Narain v. Badri Das MANU/SC/0226/1963 : AIR 1963 SC 1558 and Dalip Singh v.State of Uttar Pradesh and Ors. MANU/SC/1886/2009 : (2010) 2 SCC 114, wherein it was held that care must be taken by the parties not to make any statements before the Court which are inaccurate, untrue or misleading.
15. We have heard the learned Counsel appearing on behalf of both the parties and have carefully examined the findings and reasons recorded by the High Court in its judgment after re-appreciation of evidence on record.
16. The following legal questions would arise in this case for our consideration:
a. Whether the High Court has erred in upsetting the findings of facts by reversing the judgment and decree of the first appellate court?
b. Whether the plea taken by deceased Respondent No. 1/defendant No. 1 being in possession as a lessee could claim the alternate plea of adverse possession taken by Respondent No. 1 or vice-versa?
17. Insofar as the issue No. 1 is concerned, we are of the opinion that the High Court has erred in reversing the judgment and order passed by the first appellate court. The High Court should have noticed that the Plaintiffs/Appellants are the owners of the suit land by way of registered sale deed. The non-application of mind on the part of the High Court on the aforesaid vital aspect of the case is erroneous in law as it is not based on the correct appreciation of facts and evidence on record.
18. As far as issue No. 2 is concerned, Respondent No. 1 has no right to claim ownership over the suit property on the ground of adverse possession by taking a plea of sham transaction. This plea of the Respondent is not only prohibited by the Benami Transactions (Prohibition) Act, 1988, but makes the Appellants absolute owner.
19. At the outset, it would be pertinent to mention that the controversy in the instant case is based essentially on the documentary evidence produced on behalf of the parties. It is also worthwhile to mention in this judgment that in the Written Statement, the deceased Respondent No. 1 did not mention the fact of his having been previously inducted as lessee on the suit land by the previous owners vide lease deed dated 06.01.1967 which had taken place prior to the execution of the two sale-deeds dated 17.10.1966 and 07.01.1967 in favour of Appellant No. 1 and his mother Kaushalya Rani.
20. The contention advanced on behalf of the learned Counsel appearing on behalf of the Respondents that this appeal deserves to be dismissed as the Appellants have suppressed the material fact of rejection of the earlier SLP filed by Surinder Nath Kapoor (pro forma Respondent No. 4 herein) cannot be accepted as the same is untenable. Rejection of the said SLP does not bind the present Appellants in any manner whatsoever, as they were not party to the same.
21. In addition to the abovementioned reason, the contention advanced by the learned Counsel appearing on behalf of the Respondents that the Appellants failed to get the mutation of entries of the suit land incorporated in record shows that there was no intention on their part to act upon the contents of the two sale deeds, cannot be accepted as mere mutation of entries does not confer title upon the deceased Respondent No. 1 in the immovable property. In the case of Sawarni v. Index Kaur and Ors. MANU/SC/0730/1996 : (1996) 6 SCC 223, this Court held as under:
7...Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment....
22. In the case of Guru Amarjit Singh v. Rattan Chand and Ors.MANU/SC/0065/1994 : (1993) 4 SCC 349, this Court held that the entries in jamabandi are not proof of title in respect of an immoveable property. In the case of Jattu Ram v.Hakam Singh and Ors. MANU/SC/0399/1994 : (1993) 4 SCC 403, this Court observed that entries made by patwari in official record are only for the purpose of records and do not by itself prove the correctness of the same nor can statutory presumption be drawn on the same, particularly, in the absence of corroborative evidence. The Respondent cannot claim to have acquired title over the suit property by pleading adverse possession only in the absence of the name of the Appellants in the revenue records. In the case of Thakur Kishan Singh (Dead) v. Arvind Kumar MANU/SC/0015/1995 : (1994) 6 SCC 591 and P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors.MANU/SC/7325/2007 : (2007) 6 SCC 59, this Court held that in cases where the possession was initially permissive, the burden lies heavily on that person alleging adverse possession to prove that the possession has become adverse. Mere possession for long time does not convert permissive possession into adverse possession.
23. Having regard to the facts and circumstances of the case on hand, we are of the view that the impugned judgment and order passed by the High Court is erroneous in law and suffers from infirmity and is required to be interfered with by this Court. The same is liable to be set aside and accordingly set aside. The appeal is allowed. The judgment and order of the first appellate court is restored. All pending applications are disposed of. No costs.


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