High Court of Punjab and HaryanaRSA/1055/1992allowed

Jai Narain v. Haryana Ware Housing Corp.

2026-02-09Mr. Justice Vikas Bahl38 pages

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HON'BLE MR. JUSTICE VIKAS BAHL &

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"1.

Whether the plaintiff is owner of the property in dispute? OPP 2.

Whether defendant is in possession of the property in dispute as trespassers? OPP 3.

Whether the plaintiff is estopped by his act and conduct from filing the present suit. OP.

Whether the suit is not properly valued for th purposes of court fee and jurisdiction? OPD 5.

Whether the suit is bad for non$joinder of necessary parties, if so to what effect? OPD 6.

Relief."

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"ISSUE NO.6 RELIEF.

In view of my above discussion, and findings, I hereby pass a decree from mandatory injunction by way of demolition in favour of the plaintiff against the defendant department of property shown in red colour in the attached site plan over the killa numbers 184/18, 19/2, 23/1 detailed and described in para No.2 of the plaint and the parties are joint owners in possession of killa No. 184/39 detailed and described in para No.2 of the plaint with costs. Decree sheet be prepared

1 accordingly and file be consigned to records room in due course of time.

Announced in open court.

Sd/$ 28$2$1987.

Sub Judge IInd Class, Rewari 28$2$1987."

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"...So its stand proved that the defendant made encroachment over the plaintiff's land in the aforesaid khasra No. as reported by the local commissioner which is to the extent of 1 kanal 13 marlas or about 1000 sq. yard. However, during the pendency of the appeal, both the parties were asked to remeasurement their areas as both the parties have built up boundary wall around their areas. On that measurement only the deficiency of 900 sq. yard was found in the area of the plaintiff. This included 1/3 share in khasra No. 184/39(1?17). So if that area is excluded then the encroachment comes to 429 sq. yards. The issue is decided accordingly. No other point was urged. 9.

In view of my above discussion, the defendant has made encroachment of 900 sq. yard out of the land of the plaintiff. The plaintiff has 1/3 share in khasra No. 184/39(1?17). If the area of his share i.e. 373 sq. yards is deducted from the total encroached area, the encroachment comes to 527 sq. yard. So, the defendant has to deliver the possession of the 1/3 share land out of khasra No. 18/39(1?17) and has also to restore the possession of khasra No. 23/1 (0?3) which is at present in the possession of the defendant but it appears in the sale deed of the plaintiff. The remaining area shall be restored to the plaintiff in any manner convenient to both the parties.

With that observation, the appeal fails and the same is hereby dismissed. Decree sheet be prepared accordingly and file be consigned to the record$room.

Announced sd/$ 17$12$91.

Addl. District Judge, Rewari.

17$12$91"

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3 <!, "Insequence of my above discussions from the perusal of the Local Commission report Ex.

PW3/1, copy of Rojnamacha Ex.PW1/2, site plan Ex.PW6/5, notice Ex.PW6/2, spot memo Ex.PW6/3, and from the admission of the AW1, AW2 and statement of RPW1, it goes without saying that the Local Commission issued a notice to the defendant corporation prior to the visiting of the spot and it was served upon the duly authorised attorney of the defendant corporation who was principal officer on the date of the service of the notice Ex.PW6/2 it has been also proved that duly authorised attorney and principal Officer of the defendant corporation Sh. Delawar Singh Yadav was also present at the time of spot inspection by the Local Commission. From the perusal of Ex.PW6/4 it goes without sayint that the Pakka points namely

A.B,D. were located by the Local Commissioner then he made measurement. Hence, I am of the considered view that the Local Commission measured the spot after due notice to the defendant and duly authorised attorney of the defendant corporation was present at the time of spot inspection by the Local Commission and the Local Commission located three pakka points prior to the measurement the land in dispute.

In view of my above discussions and findings I am of the considered view that the report of the Local Commission is as per rules and correct is not liable to be dismissed. Therefore, I decide this issue against the objector/defendant.

RELIEF:$ In view of my above discussions and findings under Issue No.1 the objections of the objector/defendants merits dismissal, resultantly dismissed. No order as to costs.

Sd/$ ANNOUNCED IN THE OPEN COURT.

SJIIC/Rewari 21$3$1986 21$3$1986"

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3 <!, ".........In my absence, the person in the next grade or the person authorized by the Distt. Manager performs the duties. On 16?3?83, I had gone out somewhere on a tour. Ex. PW?6/2 bears the signatures of R.K. Gautam, and he has entered the date of 16?3?83. On 16?3?83, R.K. Gautam was posted as Technical Asstt. in the Warehouse. Sh. R.K. Gautam, Technical Asstt., comes in the grade next to mine. On the day I am not present and the Tech. Asstt. is also not present, then the person next to him performs duties in my place. The grade next to Tech. Asstt. is that of Jr. Tech. Asstt. In those days, Sh. Dilawar Singh Yadav, Jr. Tech. Asstt., was posted in the Warehouse. PW?6/3 bears the signatures of Dilawar Singh Yadav, Jr. Tech. Asstt. I had gone out of Rewari on official tour on 15?3?83 and then I returned to Rewari Warehouse on 15?5?83 itself.

Xxx xxx ......On 20/03/1983 was Sunday and on that day Sh R.K. Gautam was not present in the Ware House."

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3 <!, "Statement of D.S. Yadav, J.T. Assistant Hr. Warehouse at Tauroo on S.A.

Deposed that I remained posted in branch of Rewari Hr.

Warehouse from 16.08.1978 to 01.07.1983.

On 20.03.1983, the Commission had visited. I was on duty in the Warehouse and was present there. The incharge of the warehouse is the Manager and after him there is Technical Assistant or Godown Keeper. ....

xxx PW6/3 bears my signatures. .......... At that time, R.K. Gautam was the Technical Assistant and it is true that Ex PW6/2 bears the signatures of Sh R.K. Gautam. I don't know whether Sh R.K. Gautam had submitted any application to the Commission or not. On 16.03.1983, the Manager had gone outside and was not present in the office. On 20.03.1983, both Technical Assistant and Manager were not present. In absence of Manager, the Incharge of warehouse is Technical Assistant........"

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3 <!, 65.

For possession of immovable property or any interest therein based on title.

Explanation.-For the purposes of this article- (a)where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;

(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;

(c)where the suit is by a purchaser at a sale in execution of a decree when the judgment$debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment$debtor who was out of possession.

Twelve years When the possession of the defendant becomes adverse to the plaintiff.

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3 <!, "15. Therefore, it must follow that the intention behind Article 65 is clear and unambiguous i.e. not to provide any period of limitation for a suit for possession by a plaintiff on the basis of title, however, at the same time by providing a defence to a defendant of adverse possession. The defendant in such a defence would have to prove the aforesaid factum of adverse possession and, naturally, the onus of proving the aforesaid defence would be upon the defendant. The reason behind the intention of the Legislature is very clear. If a defendant is able to establish his adverse possession, then the very title of the plaintiff to the property is extinguished. But for the aforesaid defence of adverse possession, a plaintiff has no restriction of limitation to seek possession of immovable property on the basis of his title."

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Now, it would appear that it was alleged on behalf of the defen? dant vendee, that is, the appellant, that he had purchased the house with the consent and knowledge of the plaintiff and in fact he had paid zar?e? chaharum to the plaintiff and that on two occasions subsequently, while the house was in the course of construction, the plaintiff had en? couraged him to build telling him to make a decent construction..... Even if it had been believed that the plaintiff asked the appellant to make the construction?and in a decent manner ?that would not show by itself that the plaintiff was aware that he had his own rights in the site and notwithstanding them he allowed the appellant to make the construction.

It has been found by the lower Court that as a matter of fact the appellant was making constructions upon a land which adjoins his own residential house. It was not shown by the appellant that the plaintiff knew that the constructions were being made on the plaintiff''s land. It cannot under the circumstances be said that even if the plaintiff asked the appellant to make the constructions the plaintiff was aware that he was asking him to make the constructions on his own, that is plaintiff''s, land and so Section 115, Evidence Act does not help the ap? pellant at all. The plea of estoppel raised by the appellant appears to be inconsistent with his pleadings for therein he had clearly said that every owner of the house in the village had a right to transfer his property with$ out the permission of the zamindar. In Mustafa Husain Syed v.

Mt. Saidul Nisan, 1926?3 O.W.N. Sup. 282: (AIR 1927 Oudh 66) , it was held that: "The plea of acquiescence cannot, therefore, be held as estab? lished on the ground that the plaintiff raised no objection when a building was constructed on his land and that there was long de? lay in enforcing his rights, if any, in respect of the land in ques? tion."

Similar view was expressed in Dan Bahadur Singh and another v. Tale? want Singh and Others, 1937 O.W.N. 330: (AIR 1937 Oudh 226) . In the present case also it was alleged that the plaintiff zamindar had made no objection to the constructions and so the rulings cited above would be

/0 applicable and they make the plea of estoppel raised by the appellant un? sustainable. The decision of the lower appellate Court was obviously cor$ rect."

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!, "....However, during the pendency of the appeal, both the parties were asked to remeasurement their areas as both the parties have built up boundary wall around their areas. On that measurement only the deficiency of 900 sq. yard was found in the area of the plaintiff. This included 1/3 share in khasra No. 184/39(1?17). So if that area is excluded then the encroachment comes to 429 sq. yards. The issue is decided accordingly. No

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