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Jit Ram (D) through LRS. Vs. Satnam Singh [28/11/19]

Section

Jit Ram (D) through LRS. Vs. Satnam Singh

[Civil Appeal No. 9087 of 2019 arising out of Special Leave Petition Civil No. 13835 of 2019]

Uday Umesh Lalit, J.

1. Leave
granted.

2. This
Appeal is directed against the judgment and order dated 28.03.2019 passed by
the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal
No.3809 of 2013.

3. One
Banta, father of Jit Ram and Sibo, died on 02.07.1992. Sibo, though married,
was not staying with her husband, but used to reside with her father Banta.
After the death of Banta, Sibo filed Civil Suit No.143 of 1993 for declaration
that she had become the owner and was in possession of land admeasuring 5
kanals out of land admeasuring 9 kanals 14 marlas owned and possessed by Banta
on the basis of Will dated 26.06.1992 executed by Banta. Sibo also sought a
decree for permanent injunction to restrain Jit Ram from interfering with her
possession and from alienating the land or any portion thereof. The Suit was
dismissed by the Additional Civil Judge (Senior Division), Garhshankar, by his
judgment and decree dated 28.04.1998. It was held that the Will, on the basis
of which the claim was raised, was highly suspicious and that Sibo had failed
to prove her case.

4. The
aforesaid judgment was challenged by Satnam Singh, a relation of Sibo and Jit
Ram, by filing First Appeal in the court of the Additional District Judge,
Hoshiarpur. It was submitted that with the consent of Banta he had erected a
kachha structure in the land in question and that he was in occupation of that
structure in his own right. The contentions were rejected and the First Appeal
was dismissed by the Lower Appellate Court by its judgment and order dated
14.01.2003. No further challenge was raised and thus, the decree became final
as against Sibo and Satnam Singh, the Respondent herein.

5. Thereafter,
Civil Suit No.293 of 2003 was filed by Jit Ram against the Respondent for
possession of portion of the property over which that kachha structure marked
as ABCD in the site plan was situate. The matter was contested by the
Respondent by filing his written statement submitting inter
alia
that by virtue of a Will executed by Sibo in favour of him, the
Respondent had an independent interest in the property. A plea of adverse
possession was also taken in the alternative. The Trial Court dismissed said
Suit by its judgment and decree dated 11.04.2011 holding inter
alia
that the Respondent had perfected his title by adverse
possession and the Suit was barred by limitation.

6. Jit Ram,
being aggrieved, preferred Civil Appeal No. 45 of 2011 in the Court of
Additional District Judge, Hoshiarpur, which was allowed by Judgment and Decree
dated 19.07.2013. The Appellate Court found that the claim of Sibo having been
dismissed in the earlier round, she could not have conferred any title with
respect to the property by a Will in favour of the Respondent. It was also
found that the possession of the Respondent was purely permissive and that the
claim on the ground of adverse possession was completely untenable.

7. The
Respondent, being aggrieved, filed Regular Second Appeal No.3809 of 2013
(OM) in the High Court. Jit Ram having expired during the pendency of said
Appeal, his heirs were substituted in his place. By its Judgment and Order
dated 28.03.2019 said Second Appeal was allowed by the High Court. The High
Court approved the findings of the Appellate Court insofar as it was held that
the Respondent could not have succeeded to the suit property on the basis of
any will executed by Sibo. However, the finding as regards issue of adverse
possession was reversed and the finding of the Trial Court was restored. It was
observed that the Respondent had remained in open and hostile possession of the
Suit property which he had constructed in the year 1989.

8. In this
Appeal we have heard Mr. O.P. Bhadani, learned Advocate for the Appellant and Ms.
Tina Garg, learned Advocate for the Respondent.

9. The
record clearly indicates that the possession of the Respondent of portion
marked ABCD and his occupation of the structure was purely permissive in
character. At no stage the possession was hostile to the owners of the
property. The element of hostility was completely missing. The finding rendered
by the Appellate Court was, therefore, absolutely correct and there was no
occasion for the High Court, while exercising second appellate jurisdiction, to
set aside that finding. In our view, the High Court clearly erred in accepting
the Second Appeal.

10. The fact
however remains that the structure was put up by the Respondent. Pursuant to
the interim direction issued by this Court the pictures of the structure have
been shown to the Court. The structure is completely dilapidated and in our
view the value of the structure may not have been more than Rs.5,000/-.
However, considering the fact that the money was spent by the Respondent in the
year 1989, in our view, ends of justice would be met if the Appellants are
directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand Only) towards the
cost of the structure.

11. In the
circumstances, we allow this appeal, set aside the Judgment and Order under
Appeal to the extent it held against the Appellants on the issue of adverse
possession and we restore the Judgment and Decree dated 19.07.2013 passed by
the Appellate Court subject to the Appellants paying Rs.50,000/- to the
Respondent within four weeks from today. The amount shall be deposited in the
Trial Court and shall be released to the Respondent if he vacates and hands over
possession of the structure to the Appellants within two weeks after the
deposit, where after the Respondent shall cease to have any interest in the
structure. In case he refuses to vacate and hand over such possession, the
Respondent shall not be entitled to the sum so deposited and the sum could then
be withdrawn by the Appellants, who shall then be entitled to execute the
decree dated 19.07.2013 passed by the Appellate Court.

12. The
Appeal stands allowed accordingly. No costs.

…………………………..J.
[Uday Umesh Lalit]

………………………….J.
[Vineet Saran]

New Delhi;

November 28,
2019.

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