Hazara Singh v. Jiwan Ram
!" # $%&''&&
() $* !$%$+%, - %)&.''&&
/0$(# # $%1&.''&&
!!!!
1 2 3 '
4 53 "# $ %& %' ( ) $ $
' ( )
!!!!
4 53
* +
) ,- " .
%
/0 01 *223
4
'
5 ' "# )
6 ( # )) + 6'( %
*2 07 *220
"
86'%'
9 )): ) + ;
)
)" 6"'
# "
) #(
/ (#' # ))9
)
#'
"In the plaint, the plaintiff/respondent averred that the defendants/appellants had earlier attempted to dispossess him forcibly, compelling him to institute a suit for permanent injunction wherein an ad interim injunction was duly granted. Nevertheless, during the pendency of that suit, and specifically when the matter stood posted for evidence, the defendants/appellants allegedly dispossessed him by force, raised embankments around the disputed property, and placed two Goharas (heaps of cow!dung cakes) upon it. The plaintiff/respondent approached the police authorities, but no action was taken, purportedly owing to the fact that appellant Manjit Singh was the serving Sarpanch of the village. His application in the injunction proceedings seeking the appointment of a Local Commissioner was dismissed, rendering the earlier suit infructuous, whereupon he withdrew it and immediately instituted the present suit for possession, asserting that he had been forcibly dispossessed approximately 1 1⁄4 months prior to its filing". 1 < ( ) '
9
)
"They asserted ownership and possession of the suit property, characterising it as their ancestral Bara, and categorically denied having dispossessed the plaintiff/respondent 1 1⁄4 months prior to the institution of the suit. They further pleaded that they had, in any event, perfected title by adverse possession, their possession being continuous, hostile, peaceful, open, and uninterrupted for more than twelve years. The suit was also assailed as being barred by limitation".
= < (
) #)
' ( (
' 6 # (#
'
) ) #
# %
'
) )
) 1.
Whether the plaintiff is owner of the site in dispute? OPP. 2.
Whether the defendants have become owners of the suit property by way of adverse possession? OPD.
3.
Whether the suit is not maintainable? OPD.
4.
Relief.
7 < )
) '"
)
; #
(
> ((
) ( # ' 6
)( )
9 )) + ) "# 9
"; # ? 6 8
)
3 + (
6
%
) 6" + ' (
" )
' #
'
'
+ ) # " (
"# )" 3 * ? (
) %
' 6 ;
( " 4$) 6)
@ )
' ) 5 %"
# '
) "
=*) 5 %"6 '
*2*A
*00656 )
" %
) 6 )
!"#$ % " ! &' ( !
" !)
(( '
) %
)* !"
+
+ !"#$ % &' , ! " !)
(( !
" ! &' !" " !) +-
#
) %
' ; ) ; " )
8 ( ) "
(" B '
)'
"
" ' # "
) '
( # '
)
6" + " "%
( # "whether the impugned concurrent judgments and decrees disclose any jurisdictional error, patent perversity, misappreciation of evidence, or other legal infirmity warranting interference in the exercise of appellate jurisdiction"? C ' " ) (
#
%
? 6 + : ; #
)
'
D
(#)
"
B
) ' )" ' i.
Firstly that the suit of the plaintiff was barred as per provisions of Order 23 Rule 1(4) of CPC as respondent!plaintiff filed second suit without getting the first suit withdrawn with permission to file suit on the same cause of action. The appeal of the appellant has been admitted primarily on this question, as per order dated 21.04.1997 and where this Court has prima facie recorded opinion that second suit claiming the same very relief is not maintainable. 2 * 6 (#'
)
.
)) # (#
.
D " #) )
#
( 8 " )
(
'
) ) ' ) (
#
"; #'
#)
. )): ) %
2 / " '
"
> EE888 * = ) 6 ) 6 ( 5 ( )
+ ? 6'
)'
" "
))
)()
. )) *0
#' ) ) " ' " ' )
? 6 )
: ) ) ( #'
;
) "##) ( ( "# ) (
8
)
))) )
'
)' (#
6 *0 * C )
' (
: " 6 " (
D '
'
) (
8 ' )
: (" #( ('
%
' 6 (
# )
. ))
) #
B
6 ; #'
%
)
'"
( ) '
** (
' (# '
:)
' " (
#)D (
8 ' ( ) > EE888*) 6 )6 ( 5
((
'
) ") #)
"ORDER XXIII Withdrawal and Adjustment of Suits [1]. Withdrawal of suit or abandonment of part of claim.-
(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule(3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subjectmatter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff."
** * ' #
" > EE888*656 " B
" = ; ( # ))
)
#)
) (#"% ' # '
"
"
; (
"
** / '
. )) D
) %
'
#
)
) '
> EE888 * 656 6 ; #'";
#"" ) )
)
** 1 (' )%B
( #
) )
+ ) ) %
))
' "#
%
( )) ) 8
' "; )
#) ) %
' .
) "#
.
))) # +
)
** =
#' "
> EE888 * '
? 6 ' #'
+ )
))
# 2)
%
' ( ) " "Let us for argument sake take that this objection is covered in the simple plea of the suit being not maintainable. Admittedly, the plaintiff had in the first instance filed a suit for permanent injunction when the defendants/appellants wanted to take forcible possession. This suit was filed on 23.8.95 and was registered at No.423. In this suit, status quo order, copy of which is Ex.P9, was passed by Sub Judge Ist Class, Rajpura on 11.10.85. However, on 18.7.87, the plaintiff/respondent made a statement, certified copy of which is on the record, that during the pendency of that suit, the defendants/appellants had taken forcible possession of some portion of the site, regarding which he had filed a suit for possession and as such, the suit for injunction should be dismissed. It is on the basis of this statement that
on the same day i.e. on 18.7.87, the suit was dismissed as withdrawn. The present suit was filed on 8.6.87 is more than a month before the dismissal of the earlier suit. The dates would thus show that when the present suit was filed, the previous suit was still pending andit cannot be said that the present suit was filed after the earlier suit was dismissed as withdrawn and without permission. Technically therefore, the provisions of Order 23 Rule1 (3) C.P.C are not attracted, Still further, in the circumstances stated, the earlier suit was for temporary injunction and alleging that possession was taken during the pendency of that suit, a fresh suit was filed for possession.
Certainly, therefore, the plaintiff/respondent had a fresh cause of action to file the suit for possession and the subsequent suit being not for the same cause of action, provisions of Order 23 Rule 1 C.P.C. would therefore, be inapplicable. The various authorities cited by thelearned counsel for the appellants, such as A.I.R. 1989 NOC 193 (Orissa) Smt. Radha alias Radharani Dei Bhoi Vs. Dibakar Nayak, 1991 P.L.J.741 Raja Ram Vs. Ram Karan, A.I.R. 1990 Kerala, 215 Order of the Holy Cross Vs. Lonnappan Thattil, 1991(2) Latest Judicial Reports238 Smt. Rajwant Kaur Vs. M/s Arora Food Mills and AIR 1991 Calcutta 116 Geeta Bose Vs. 4 Machine Tools of India Ltd. are not of any consequence. The opposite cunsel has also cited A.I.R. 1990 NOC 173 (Andh.Pra.) Amaravedi Jagannadhcharyulu Vs. Govt. of Andhra Pradesh and A.I.R.
1990 Madhya Pradesh 80, Smt. Indubai & another Vs. Jawaharlal and another to say that the second suit is maintainable. For the factual position discussed bere-in-before, I disagree with the submissions of the learned counsel for the appellants that the second suit for possession was not maintainable on the argued ground of the previous suit for injunction having been dismissed as withdrawn With this conclusion, an application under order 23 Rule 1 C.P.C.
the appellants/defendants during the pendency of the appeal is also dismissed."
12.
< )
%
B ' " ) )
? 6 )) ) ) #' %
' ( # ( + 6
#
"
#) ) %
)
. )) + ) "; )
) #
"
) (
6 ; #' " #)
) #
? 6 )
*/ * +
") .
: " ' " # )
(
+ .
#
) '
;
#F
' ' (') "##) (
*/ / ) )
' ) B )
(
8
.
" ) ( +
) ( '
)
' )( (
#B F ' #
( ')
" ' )
# ( ) + (
) " .
( )5D ) *2=@ */ 1
#' 6" #% )
'"# # )
'"
#) .
*/ = 5
") .
:
' " #B ' B
#' ) (
) "##) ( + ? 6
D (( ) .
'
"
' ( #
*/ 7 5
4C* .
"
) 17.13#
#
+ (
(# )
)
: '
6"
#)
#)
G
4C/
("#
"
"# H(
sanad )( + #)
"
#
() ) ( ')
# # #' )' #
*/ 3 $ %
4C1 ' ) .
)' B #
(" )
('
. ))'
" ) ( '
)
*2=@
)): (
#) ')
" #)
*/ @ 4C7
#
( "#
"
/0./7# + ''
"
) .
'"
" ' # (
'
)' (" " ) ) # I"#'
) ( *1 ( ) # (
#
# ' ( )
)
(
) ( +
( " ' ' '
D
) ) # )(#
#' ? 6
#% ) .
#
) "# (
13.1.
' " )
) ( '"# (# 'D B
)
)
' ; #' ; " )() #
) ' ' '
) B
"#
# )(#'
" ;#
# ) #
)) (#" (#
) ( 14.
')
#" (
) :"B6 *! /"!
"0 10 23
4"2 !, "0 5
!)
(
( - '
"
"Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that ! "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held:!
"As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of
the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53!A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." *= *
12.
Therefore, to prove the plea of adverse possession :! (a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner; (b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
(c) The plaintiff must also plead and establish when he came into possession; and (d) The plaintiff must establish that his possession was open and undisturbed.
It is a settled law that by pleading adverse possession, party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts
constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff." *7 ) # ' " ; ( # .
( #)
" ) "
# ) "##) ( + )
? 6 )
%
(
"#" + 6
#
. )) ) #
) B
' "#
)
(
# )D 6 ; #' ) .
#7 -7 #'
%
"# ? 6 ) ))
*3 # ) %
) " ( ' ) ))
#
D "
#'
' ) #'
)
'
) "# # (
"('
)
'
(
"
#
# )
4 53
&.''&&
(+!("
$!$) Whether reasoned / speaking?
Yes / No ! "
# $%