Murti Shri Durga Bhawani (Hetuwali) Trust and Another vs Sh. Diwan Chand (Dead) Through Lrs and Others

Murti Shri Durga Bhawani (Hetuwali) Trust & Anr. …Appellants Versus

Sh. Diwan Chand (Dead) through LRs & Ors. …Respondents WITH CIVIL APPEAL NO. 6802 OF 2010 CIVIL APPEAL NO. 6803 OF 2010 CIVIL APPEAL NO. 6804 OF 2010

JUDGMENT

Rajesh Bindal, J.

1. The plaintiffs are before this Court impugning the

orders passed by the High Court in the Regular Second Appeal

Nos. 2306 & 2307 of 1997, which upheld the judgments and

decrees of the Lower Appellate Court, reversing that of the Trial

Court in Suit Nos. 273 and 274 of 1989. The appeals filed by Signature Not Verified Digitally signed by Indu Marwah Date: 2023.04.11

the appellants were dismissed.

17:38:56 IST Reason: The orders dated 5.4.2010

1

passed in Review Application Nos. RA-RS-25C & 26-C of 2010

against the aforesaid appeals are also under challenge.

2. The case has a chequered history. However, the

facts leading to the present appeals are being noticed from Civil

Appeal No. 6801/2010. However, wherever required, the

previous litigation pertaining to the said property shall be

referred to.

3. The appellant is a registered Charitable Trust, which

is the owner of the land forming part of Khasra No. 4833. A suit

was filed by the appellant on 26.5.1982 for possession. It was

alleged that the land was encroached upon by the

respondents/defendants. The suit was contested by the

respondents/defendants raising objection that the

appellants/plaintiffs are not the owners of the property in

dispute; they have no locus to file the suit; the defendants are

in possession of the property for more than 34 years and

running their business; and the suit property is not part of

Khasra No. 4833. It was also pleaded that they had become

owners of the suit property by way of adverse possession.

4. The suit was decreed by the trial court vide judgment

dated 28.2.1991. The respondents/defendants were ordered to

2 be ejected from the suit property. Appeal filed by the

respondents/defendants, was accepted by the learned

Additional District Judge. The judgment and decree of the Trial

Court was set aside primarily on the ground that they had failed

to prove their title to the property.

5. The judgment and decree of the lower appellate

court was upheld by the High Court in appeal vide order dated

13.10. 2009 and the Review Application was also dismissed on

5.4.2010.

6. Mr. Neeraj Jain, learned senior counsel appearing for

the appellants submitted that the trial court, while appreciating

the evidence, had rightly decreed the suit. However, on a

misreading of the evidence, the first appellate court had

reversed those findings. High Court also fell in error in

upholding the judgment of the Lower Appellate Court. He

further submitted that before the Trial Court, during the course

of arguments, learned counsel appearing for the

respondents/defendants had categorically admitted that the

disputed site is part of Khasra No. 4833. In fact, plea of

adverse possession could be raised only if the ownership of

property is not in dispute. The High Court also recorded a

3 categoric finding that Khasra No. 4833 belongs to the

appellants. However, the relief was denied to the appellants

only on the ground that the identity of the property was in

dispute. The High Court was of the opinion that it is not

forming part of Khasra No. 4833. The finding of the High Court

that Khasra No. 4833 is owned by the appellants/plaintiffs has

not been challenged by the respondents.

7. He further submitted that an application was filed by

the Respondents on 2.8.1993 before the Tehsildar-cum-

Assistant Collector, 2nd Grade, Karnal for correction of Khasra

Girdawari from Rabi 1990 onwards. A categoric admission was

made by the respondents therein that the area in possession of

the respondents was part of Khasra No. 4833 and they are in

possession thereof, which is evident from Jamabandi for the

year 1994-95. The report of the Local Commissioner, submitted

in a different litigation i.e. Civil Suit No. 371 of 1981, which was

relied upon by the Lower Appellate Court (Ex. D-16), was

without ascertaining any pucca points. He further referred to

document at page 97 of the paper book whereby the

respondents submitted building plans to the Municipal

Committee for the property in dispute specifically mentioning

4 that it is part of Khasra No. 4833. With the aforesaid material

on record, the findings recorded by the lower appellate court as

well as the High Court that identity of the property was in

dispute, are totally perverse, as it was the admitted case of the

respondents themselves that property in their possession was

part of Khasra No. 4833.

8. It was also argued that earlier the respondents,

namely, Sunder Dass and Gopal Singh had filed Civil Suit No.

371 of 1981 on 29.05.1975 for permanent injunction restraining

Bhagwat Sarup, Anand Sarup and Pt. Har Sarup from

dispossessing them from the suit property and the plea of

adverse possession was also raised. As far as the plea of

adverse possession is concerned, the findings were against the

present respondents/the plaintiffs therein whereas decree of

permanent injunction was passed on account of long

possession of respondents holding that they cannot be

dispossessed except in due course of law. It was with reference

to the same suit property. The suit was partly decreed on

30.09.1981.

9. On the other hand, Sh. Sanjay Parikh, learned senior

counsel appearing for the respondents submitted that it is too

5 late for the appellants to raise all the factual issues before this

Court. There is concurrent finding of facts recorded by both

the courts below in favour of the respondents and there is

nothing on record to dislodge that finding. The respondents are

unnecessarily being dragged in litigation. The report of the

Local Commissioner dated 2.12.1978, already on record, clearly

points out that the premises in possession of the respondents is

not part of Khasra No. 4833, rather it is 434 feet beyond that.

New issues are sought to be raised before this Court, which

cannot be permitted. The respondents are in possession of the

property for the last more than 34 years. In fact, even in the

appeal before the High Court, no substantial question of law

was framed and there is no legal issue as such, which requires

determination by this Court.

10. We have heard learned counsel for the parties and

perused the relevant material on record.

11. From the judgments on record it is evident that a

judgment and decree dated 30.7.1965 was passed in favour of

the predecessors in interest of the appellants in Harsarup vs.

Municipal Committee by Sub Judge, Karnal. (Suit No. 292 of

1962)

6

12. The appellant filed a petition for execution of the

aforesaid decree against the Municipal Committee for the2

disputed property in the year 1974. The predecessor-in-interest

of the respondents were also impleaded as respondents in the

Execution Petition as they were obstructing the execution of

decree and trying to raise construction thereon.

13. A Local Commissioner was appointed in the aforesaid

execution proceedings, who after visiting the site, submitted his

report on 19.1.1975 before the Court. In the report, he stated

that the shops in question constructed by the respondents are

built on Khasra No. 4833. Nothing was pointed out from record

about the status of the aforesaid execution proceedings.

14. As has been noticed by the Lower Appellate Court in

judgment dated 16.1.1997 that during the course of

proceedings in the aforesaid Execution Petition, the

respondents were allowed to raise construction on an

undertaking given by their predecessor-in-interest that in case

they lose, they will not claim any compensation.

15. During the pendency of the aforesaid execution

petition, the predecessor-in-interest of the respondents filed a

suit bearing No. 371/1981 against Bhagwat Sarup, Trustee of

7 the appellant Trust. In the said suit, two main issues were

framed, namely, whether the plaintiffs therein had become

owners of the property by way of adverse possession and the

second was as to whether the plaintiffs are bound by the

decree in Suit No. 292 of 1962, Harsarup vs. Municipal

Committee, Karnal. The mere fact that the predecessor-in-

interest of the respondents had filed the suit claiming

ownership of the property on the basis of adverse possession,

pre-supposes that the ownership of the appellants on the suit

property was admitted. In any case, the issue regarding the

predecessor-in-interest of the respondents having become

owner of the property in dispute by way of adverse possession

was decided against the plaintiffs therein. It was specifically

held that the plaintiffs in the aforesaid suit had failed to prove

their adverse possession. Finally, the plaintiffs therein partly

succeeded as only a decree of permanent injunction was

passed in their favour restraining the defendants therein from

interfering in their possession except in due course of law on

30.09.1981. In the aforesaid suit Sadar Kanoongo was

appointed as Local Commissioner. He had given his report on

02.12.1978 stating that property in possession of the

8 respondents was 434 ft. away from Nala. The report did not

even mention about Khasra No.4833. No pucca points were

mentioned. It was as vague as possible. The decree attained

finality.

PRESENT LITIGATION

16. The Trust filed a Civil Suit No. 273 of 1989 on

26.5.1982 for possession. The main reliance of the

respondents was on the report of the Local Commissioner

submitted in earlier Suit No. 371/1981 filed by the respondents.

A perusal of the report of the Local Commissioner dated

2.12.1978 shows that the pucca points were not ascertained

before carrying out the measurements. In the abvoesaid

report, where Kanoongo was the Local Commissioner, the

finding was given that the property in dispute was located 434

ft. beyond naala. The site plan was also annexed with the

report in which except showing the road and a naala, no khasra

numbers were mentioned to identify the property properly. The

fact that there was already a report of Local Commissioner

dated 19.1.1975 pertaining to the same property, was not even

referred to. This was a report by the Local Commissioner

appointed in the Execution Proceedings filed by the

9 predecessor-in-interest of the appellant, in which predecessor-

in-interest of the respondents were also party. This report

inspires confidence as before carrying demarcation of the

property pucca points were marked and specific khasra no.4833

was measured. Proper plan is also annexed with the aforesaid

report.

17. The stand taken by the defendants in the present suit

was that they are in possession for the last 34 years. The suit

property is not part of Khasra No. 4833 and further that they

had become owners of the property by way of adverse

possession. The suit was finally decreed in favour of the

appellants. In para 13 of the judgment, the trial court recorded

the statement made by the learned counsel appearing for the

defendants that the suit property is part of Khasra No. 4833.

The same reads as under :-

“13. During the course of arguments, Sh. T.P.S. Bedi Adv. has conceded this fact that the disputed site is part of Khasra No. 4833. No doubt, he has at one stage argued that the identity of the property is not established but since he has conceded this fact that the disputed site is part of Khasra No. 4833 there is no necessity to look into the evidence that it is not within Khasra No. 4833.”

10

18. As far as the plea raised by the defendants therein

regarding they becoming the owner of the property by way of

adverse possession, the finding was that in the earlier litigation,

the defendants had already lost on that ground alone (Ref. Suit

No. 371/1981). The aforesaid two facts clearly established the

identity of the property.

19. Another fact which clearly establishes that it was the

admitted case of the respondents herein that the property in

dispute is part of Khasra No. 4833 is evident from an

application filed by the predecessor-in-interest of the

respondents before the Tehsildar-cum-Assistant Collector on

2.8.1993 seeking correction of Khasra Girdawari, wherein it was

claimed that the applicants were the owners in possession of

the shops since 1950 and the same was part of Khasra No.

4833. The Assistant Collector, Second Grade, Karnal, vide

order dated 17.2.1994 directed for correction of Khasra

Girdawari holding that the applicants therein/predecessor-in-

interest of the respondents were in possession of part of Khasra

No. 4833.

20. Aggrieved against the judgment and decree of the

trial court dated 28.2.1991, the predecessor-in-interest of the

11 respondents filed appeal. The same was allowed by the

learned ADJ vide judgment and decree dated 16.1.1997. In

para 14 of the judgment, while referring to Suit No. 292 of

1962, the opinion expressed by the First Appellate Court was

that the appellants were co-owners of Khasra No. 4833.

However, relying upon the report of the Local Commissioner

dated 2.12.1978, it was opined that the suit property being

different and the present appellants not being the owners

thereof, they are not entitled to any relief.

21. The appellants challenged the judgment and decree

of the lower appellate court by filing RSA No. 2306/1997 before

the High Court of Punjab and Haryana. Even in the order

passed by the High Court dismissing the appeal, it has been

specifically recorded that undisputedly, the appellants are the

owners of Khasra No. 4833. Still referring to the report of the

Local Commissioner dated 2.12.1978, the appellants were held

not to be entitled to any relief. Even the Review Application

filed against the aforesaid judgment was dismissed.

22. It is evident from the facts, which have come on

record in the present litigation, that the appellants have been

admitted to be owner of the property being Khasra No. 4833.

12 This finding has even been recorded in the impugned order

passed by the High Court dismissing the Second Appeal. There

is no challenge to the aforesaid finding recorded by the High

Court by the respondents. In fact, they could not as there was

admission of the respondents to that effect before the Trial

Court as well.

23. The only issue on which the appellants have been

non-suited is that the respondents are not in possession of any

part of Khasra No. 4833 as the property in their possession is

different. However, on that issue as well, the findings recorded

by the lower Appellate Court as well as the High Court are

perverse if considered in the light of two material documents

which are in the form of admission of respondents themselves

regarding the identity of the property in their possession. First

being the statement of the counsel for the respondents made

before the Trial court as has been noticed in para no. 17 above

and second is the application filed by the respondents before

the Tehsildar-cum-Assistant Collector for correction of Khasra

Girdawari specifically admitting that they are in possession of

part of Khasra No. 4833. In addition to that, there is a report of

13 the local Commissioner dated 19.1.1975 submitted by the Naib

Tehsildar. It was in the execution petition filed by the

predecessor-in-interest of the appellants of the decree passed

in his favour in Harsarup vs. Municipal Committee by the Sub

Judge, Karnal. Still further the plea of the respondents about

adverse possession pre-supposes ownership of the specific

property of the appellants, which is claimed to be in possession

of the respondents.

24. For the reasons mentioned above, the order passed

by the High Court dismissing the review applications and

appeals filed by the appellants and the judgments and decrees

of the Lower Appellate Court cannot be legally sustained and

the same are set aside and the appeals are allowed. The

judgments and decrees passed in Suit Nos. 273 and 274 of

1989 by the trial court are restored.

25. The decree sheet be prepared.

_____________, J.

(Abhay S. Oka)

____________, J.

(Rajesh Bindal) New Delhi 11.04. 2023.

14