Hitesh Kumar Sharma v. Smt.Mithlesh Sharma & Anr.

Sharma, son of Shanti Sarup Sharma, appellant-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit for a decree of declaration to the effect that he is owner of the disputed plot and had acquired its ownership by way of adverse possession with a consequential relief of permanent injunction restraining Smt.Mithlesh Sharma and her husband-Mahesh Chand Sharma, son of Shanti Sarup respondent-defendants (for brevity "the defendants") from forcibly dispossessing him from the disputed plot, inter alia pleading that on 27.01.1967, the plot in question was allotted to one Tripat Khanna. He sold and transferred the same to one Manjit Khanna on 01.08.1973. Thereafter, Manjit Khanna had again sold and got the plot transferred in the name of defendant No.1-Smt.Mithlesh Sharma on 18.11.1981. RSA No.3103 of 2010 (O & M) ::2::

2. The case set up by the plaintiff, in brief, insofar as relevant, was that defendant No.1 sold the said plot to him for a total sale consideration of Rs.70,000/- vide duly executed receipt Ex.PW-12/A and delivered the possession to him on 11.03.1982. He raised and completed the construction of the house over it by the end of 1982. Since then, he is in possession of the suit property as absolute owner and that his possession during this period has been continuous, uninterrupted and hostile. Thus, he was stated to have acquired the ownership of the plot by way of sale as well as by virtue of adverse possession. The plaintiff claimed that although he had executed a writing Ex.DB stating therein that he had taken the house in dispute from defendant No.1 to live in for a period of 2 years i.e. from April 1992 to April 1994 and that after the expiry of the said period, he would vacate the same but the writing was got executed by defendants under duress, coercion and undue pressure.

3. Concisely, the plaintiff claimed that he has purchased the property in dispute from defendant No.1 for Rs.70,000/- vide receipt Ex.PW-12/A or in the alternative, he has acquired its ownership by way of adverse possession, but the defendants have started asserting their ownership over the suit land without any legal right. On the basis of aforesaid allegation, the plaintiff filed the suit for declaration and mandatory injunction against the defendants as depicted hereinabove.

4. The defendants contested the suit and filed the written statement inter alia maintaining that they were residing at Bombay and as per terms and conditions imposed by HUDA, the construction over the plot was required to be raised at the earliest. It was not possible for them to personally look after the construction and to complete various formalities with various departments like HUDA. Therefore, they requested the plaintiff to help them being brother of defendant No.2. In this manner, they got the construction raised through the plaintiff, but all the expenses RSA No.3103 of 2010 (O & M) ::3:: of raising constructions were borne by them. The defendants claimed that defendant No.2 had purchased another plot bearing No.34, Sector-4, Urban Estate, Gurgaon, in the year 1981. As he was unable to look after the said plot, so, he executed a General Power of Attorney in respect of said plot in favour of the plaintiff, authorizing him to sell the same. On the basis of said General Power of Attorney, the plaintiff had sold the said plot in the year 1987 and an amount of Rs.60,000/- was paid through bank draft towards the sale consideration of plot No.36, Sector-4, Urban Estate, Gurgaon. The plaintiff was stated to have obtained signatures of defendant No.2 on number of blank and printed papers to sell the second plot and illegally got executed receipt Ex.PW-12/A whereas no such receipt was executed by him. As such an amount of Rs.60,000/- received by way of bank draft was not towards sale consideration of the plot in question, rather the amount was the sale proceeds of second plot No.36, Sector-4, Urban Estate, Gurgaon of defendant No.2. Succinctly, the defendants claimed that plaintiff has got no right, title or interest in the disputed plot which is owned by defendant No.1.

5. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. On the contrary, the defendants have also filed a counter-claims, for directing the plaintiff to vacate the house in dispute and to hand over the vacant possession of the same to them.

6. In the wake of pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case.

7. The parties to the litigation produced on record the oral as well as documentary evidence, in order to substantiate their respective stands.

8. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court dismissed the suit of the plaintiff. However, the RSA No.3103 of 2010 (O & M) ::4:: counter-claims of the defendants were allowed. A decree for mandatory injunction was passed in favour of the defendants, directing plaintiff to vacate the house in dispute and hand over the vacant possession to the defendants within a period of 2 months. The plaintiff was also directed to pay mesne profits for use and occupation of the house in dispute @ Rs.3,000/- pm from the date of filing of the suit till the delivery of the possession, by virtue of the impugned judgment and decree dated 25.09.2008.

9. Aggrieved by the judgment and decree of the trial Court, the appellant- plaintiff filed the appeal which was dismissed as well by First Appellate Court vide impugned judgment and decree dated 12.04.2010.

10. The appellant-plaintiff still did not feel satisfied with the impugned judgments and decree of the Courts below and filed the present appeal.

11. Havind heard the learned counsel for the appellant-plaintiff, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal.

12. Ex facie, the main argument of learned counsel, that the plaintiff has purchased the plot in dispute from defendant No.1 vide receipt Ex.PW-12/A and as also he became the owner of the suit property by way of adverse possession, therefore, the Courts below fell in error in dismissing his suit, is not only devoid of merits but misplaced as well.

13. As is evident from the record that the plot in question was duly transferred by HUDA on 18.11.1981 in the name of defendant No.1-Smt.Mithlesh and she is absolute owner of the suit property. The plaintiff, firstly, claimed that he had purchased the disputed house vide receipt Ex.PW-12/A from defendant No.1 and secondly, he became the owner by way of adverse possession. In that eventuality, a heavy burden of proof was upon the plaintiff to prove his case on all vital counts, but he has miserably failed in this relevant connection. No implicit RSA No.3103 of 2010 (O & M) ::5:: reliance can be placed on the receipt Ex.PW-12/A being unregistered document. Since, no property of the value of more than Rs.100 can be transferred except by way of registered sale deed, therefore, the title of the disputed plot will not pass on the plaintiff in pursuance of the alleged receipt. Moreover, as per his own pleading, the plaintiff executed a writing Ex.DB stating therein that he had taken the house in dispute from defendant No.1 to live in for a period for 2 years i.e. from April, 1992 to April, 1994 and that after the expiry of the said period, he would vacate the same. However, the plaintiff claimed that the said writing was the result of duress, coercion and undue pressure but he has failed to produce any cogent evidence in order to prove coercion or undue pressure. That means the plaintiff has admitted the ownership of the defendants. Not only that, on the contrary, it stands proved on record that the plot in dispute was transferred by HUDA in the name of defendant No.1 and plaintiff has no right, title or interest in it. Once, the ownership of defendant No.1 is proved and the plaintiff has also so admitted, in that eventuality, he is estopped from claiming his title by way of adverse possession. As a matter of fact, the plaintiff wanted to grab the property of defendant No.1 and his permissible possession cannot possibly be termed as hostile and adverse possession, in view of law laid down by the Hon'ble Apex Court in cases Mandal Revenue Officer v. Goundla Venkaiah and another (2010) 2 Supreme Court Cases 461 and Hemaji Waghaji Jat v.Bhikhabhai Khengarbhai Harijan & others 2008 (2) HRR 431.

14. Thus, I am of the view that the Courts below have rightly negatived the claim of the plaintiff in this respect. Therefore, the contrary argument of learned counsel for the appellant-plaintiff stricto sensu deserve to be and are hereby repelled under the present set of circumstances.

15. No other meaningful argument has been raised by learned counsel for the appellant-plaintiff to assail the findings of the Courts below in this context. RSA No.3103 of 2010 (O & M) ::6:: All remaining contentions, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiff have already been duly considered and dealt with by the Courts below.

16. There is another aspect of the matter, which can be viewed from a different angle. The trial Court as well as the first Appellate Court have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective.

17. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the well articulated and well reasoned concurrent findings of fact that plaintiff has failed to prove that he has purchased the plot in dispute from defendant No.1 or he became its owner by way of adverse possession. On the other end, it stands proved from the record that the defendant No.1 was the rightful owner of the plot in dispute. Such pure concurrent findings of fact, based on the evidence, cannot possibly be interfered with by this Court while exercising the powers conferred under Section 100 CPC unless and until the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by learned counsel for the appellant-plaintiff, so as to take a contrary view, than that of well reasoned decisions already arrived at by the Courts below in this regard.

18. Meaning thereby, the entire case revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by the Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under Section 100 CPC, in the obtaining circumstances of the present case. RSA No.3103 of 2010 (O & M) ::7::

19. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-plaintiff.

20. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. August 11, 2010 sukhpreet (Mehinder Singh Sullar) JUDGE