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PETITIONER: HARI CHAND @ HARISH CHANDRA

       Vs.

RESPONDENT: SHRI DAULAT RAM

DATE OF JUDGMENT15/10/1986

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1987 AIR   94            1986 SCR  (3)1029  1986 SCC  (4) 524        JT 1986   659  1986 SCALE  (2)599

ACT:      Limitation Act,  1963-Article  142-Adverse  possession- Plea of-Existence  of disputed  wall with khaprail proved by defendent-Plaintiff  to   prove   case   of   trespass   and encroachment.

HEADNOTE:      The  appellant   instituted  a  suit  for  recovery  of possession of  the disputed  land after  demolition  of  the unauthorised constructions  made thereon  by the  respondent alleging that  he became owner of the land on the basis of a registered sale  deed, that  he started  to build a compound wall over  and around  his land  after  his  purchase,  that taking  undue   advantage  of   his  temporary  absence  the respondent wrongfully  encroached and  trespassed along  the whole northern length of the land and hurriedly raised a low mud wall and extended his khaprail thatch over it.      In his written statement the respondent denied that the appellant was  owner of  the land  and claimed that the wall and khaprail  belonged to  him as they have been existing at their present  site since  time immemorial, that he had been regularly and openly enjoying the land and that under s. 142 of the  Limitation Act  he became  the absolute owner of the land in  question on  the basis of adverse possession and he has a right of easement in the form of flowing of water from the tiled roof.      The Additional  Munsif dismissed  the suit holding that the appellant  was the owner of the property and that he had failed to prove the case of trespass and encroachment.      The appeal  filed by  the appellant  was allowed by the Additional Civil  Judge  holding  that  the  respondent  has failed to  prove that  the wall  in dispute and the khaprail existed for  the last  more than  12 years  before the suit, that even  if respondent’s wall and khaprail are old ones he is not entitled to maintain them after the same was allotted in the  deed of partition dt. 3.3.58, and that the appellant is entitled to posses- 1030 sion after  demolition of  the construction  of the  portion found encroached by respondent.      The second appeal filed by the respondent was dismissed

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by the  High Court  and the judgment and decree of the lower Appellate Court were affirmed. The respondent filed a review application alleging that the partition deed dt. 17th March, 1963 was  not in  fact a  deed of  partition but  merely  an agreement between  the parties to partition the property and there was  no actual  partition by metes and bounds and that the respondent continued to remain co-owner and co-sharer of the property in suit.      The High  Court allowed the review application and held that the  mere allotment  of shares  by  the  said  deed  of partition did  not amount  to partition by metes and bounds, set aside  the judgment  and decree  of the  lower Appellate Court and dismissed the suit.      In the  appeal to this Court on behalf of the appellant it was  contended that  the land  in dispute was allotted to the vendor  in accordance  with the  deed of partition (Ext. 3/1) and  shown in  map  (Ext.  3/2)  effected  between  the parties on  17.3.58 and  this  has  been  mentioned  in  the sale:deed (Ext.  1) and,  therefore, the judgment and decree of the  High Court  is not in accordance with law and should be set aside.      Dismissing the appeal, ^      HELD: 1.  There is  no pleading regarding the partition of the  property No.  164 nor  there is  any pleading to the effect that  the disputed  mud wall  with the khaprail on it was ever in possession of appellant’s vendor before the sale of the  land in question in favour of the appellant. [1034H; 1035A-B]      2. On  a consideration  of the evidence on record it is established that the alleged encroachment by construction of kuchha  wall   and  khaprail   over  it   is  not  a  recent construction as  alleged to  have been  made in May 1961. On the other hand it is crystal clear from the evidence of PW 1 and DW  1 that the disputed wall with khaprail existed there on the  disputed site  for a long time i.e., 28 years before and the wall and the khaprail have been affected by salt, as deposed by  these two witnesses. The Court Amin’s report 57C also shows the said walls and khaprail to be 25-30 years old in its present condition. The High Court rightly came to the finding that though the partition deed was 1031 executed by  the parties yet there was no partition by metes and bounds.  Moreover, there  is no  whisper in  the  plaint about the  partition of the property in question between the co-sharers by  metes and  bounds nor  there is  any averment that the  suit property  fell to share of appellant’s vendor and he was ever in possession of the disputed property since the  date  of  partition  till  the  date  of  sale  to  the appellant. The  appellant has  singularly faild to prove the case as pleaded in the plaint. [1037C-E]      3. Without considering the deposition of Respondent No. 1 as well as the report of the Amin 57C the Additional Civil Judge wrongly  held that the respondent failed to prove that the wall  in dispute  and the  khaprail existed for the last more than  12 years before the suit. The Civil Judge further held on  surmises as "may be that the wall and khaprail have not been  raised on May 1961 as is the plaintiff’s case, but they are  recent constructions."  This decision of the lower Appellate Court  is wholly  incorrect being  contrary to the evidence on record. [1037A-B]

JUDGMENT:

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    CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 755 of 1971      From the  Judgment and  Order dated  21.12.1970 of  the Allahabad High Court in Second Appeal No. 2757 of 1963.      D.P.  Singh,   R.P.  Singh   and  D.S.  Mehra  for  the Appellant.      L.P. Vats and S.P. Panday for the Respondent.      The Judgment of the Court was delivered by      B.C. Ray,  J. This  appeal by  special leave is against the judgment  and decree  dated 21st  December, 1970  of the Allahabad High  Court in  Second Appeal  No.  2757  of  1963 allowing the appeal on setting aside the judgment and decree of the  court of appeal below and dismissing the plaintiff’s suit.      The plaintiff  Hari Chand  @ Harish  Chandra instituted suit No.610  of 1961  in  Court  of  the  Munsif,  Agra  for recovery of  possession of  the disputed  land shown  in red colour attached  to the  plan marked  with letters  GCDH  on demolition of the unauthorised constructions made thereon by the defendant  alleging inter alia that the plaintiff became owner in  possession of  a piece  of land measuring 1580 Sq. ft. situated  at Sultanpura,  Agra Cantt.  designated as No. 164A, and 1032 shown in  the plan attached thereto with letters A, B, C, D, E, F  on the  basis of a registered sale deed dated 9th May, 1961, from Ramji Lal owner of the said property. It has been further alleged  that  the  plaintiff  started  to  build  a compound wall  over and  around his land after his purchase. The defendant  taking undue  advantage  of  the  plaintiff’s temporary  absence  from  Agra,  wrongfully  encroached  and trespassed  along   the  whole   Northern  length   of   the plaintiff’s land  measuring North  to South  about 4 ft. and East to West about 62 1/2 ft. by hurriedly raising a low mud wall and  extending his khaprail thatch over it. It has been shown in the attached plain in red colour with letters G, C, D  &  H.  It  has  been  further  alleged  that  inspite  of plaintiff’s objection against the said wrongful encroachment and trespass  the defendant  did not  pay any heed to it. It has also  been pleaded  that the cause of action of the suit primarily  arose  on  or  about  22nd  May,  1961  when  the defendant made  the encroachment  and wrongful constructions over the  plaintiff’s land  as well  as it arose on 4.6.1961 when the defendant failed to remove the encroachment inspite of  the   plaintiff’s  notice.  Hence  this  suit  has  been instituted.      The defendant  filed a  written statement  denying that the plaintiff  was owner  of the  land shown  by GCDH in the plan attached  to the  plaint. The defendant also denied the correctness of  the sale  deed dated  9.5.1961. It  has been stated that  the land  marked GCDH as shown in red colour in the plan  attached to  the  plaint  never  belonged  to  the plaintiff. The wall and khaprail belonging to the contesting defendant have  been existing  at their  present site  since time  immemorial.   The  plaintiff’s   allegation  that  the contesting defendant  has constructed  the wall and extended the khaprail  (tiled roof)  in May 1961 is totally wrong and baseless. It  has been  further stated  that he did not make any new  construction. The  defendant also  stated that  the plaintiff illegally  tried to remove his kutcha wall and the tiled roof  situate at  the  place  marked  G,  C,  D  &  H. Accordingly, on  25.5.1961 the  contesting defendant  gave a notice to the plaintiff mentioning the actual facts to which he gave  a wrong  reply. The plaintiff’s allegation that the wall and  tiled roof  of the  defendant  encroach  upon  the

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plaintiff’s land  is totally  wrong, false  and baseless. It has been  stated that the wall and tiled roof belongs to the contesting defendant  and the  eaves of tiled roof have been at the  same place  since time  immemoral where  they are at present. He  has been  regularly and openly enjoying all the proprietary rights  and  rights  of  adverse  possession  in respect of  the  land  aforesaid.  Under  Sec.  142  of  the Limitation Act, the contesting defendant became the absolute owner of the land in dispute on the 1033 basis of  the adverse  possession as well and he has a right of easement  in the  form of flowing of water from the tiled roof. The  kuchha house  No.164 belonging  to the contesting defendant has  been existing at its site exactly in the same condition  in   which  it   was  built  by  the  defendant’s grandfather. The  eaves have been dropped at that very place and the  khaprail has also been existing at that very place. The contesting  defendant did  not make any new construction as alleged by plaintiff in the plaint. Property Nos. 163 and 164 consisted  of kuchha  houses. The  contesting  defendant demolished the  Property No. 163 which had come to his share and got  in pucca  built. Property  No. 164 is a khaprail in which the  contesting defendant  is living and was living at the time  of partition. The defendant therefore, states that the suit is liable to be dismissed.      Third Additional Munsif, Agra after hearing the parties and also on a consideration and appraisement of the evidence on record  held that  the plaintiff  was the  owner  of  the property described  in the  plaint by the boundaries but the defendant has  not trespassed  over his  land  and  has  not constructed a new wall or khaprail. It has been further held that the  plaintiff failed to prove the case of trespass and encroachment. The suit was accordingly dismissed with costs.      Against  this   judgment  and   decree  the   plaintiff preferred an  appeal being  numbered as  Civil Appeal 220 of 1963 in  the court  of District Judge, Agra. This appeal was allowed by the IInd Addl. Civil Judge, Agra holding that the defendant failed  to prove  that the wall in dispute and the khaprail existed  for the last more than 12 years before the suit, even  though it  was not  proved that the khaprail had been raised  in May  1961 as  was the case of the plaintiff, but they  are recent  construction. It was further held that even if the defendant’s wall and khaprail are old ones he is not entitled to maintain them after the same was allotted to Ramji Lal  in the  deed of  partition dated 3.3.1958. It has been  further   held  that  the  plaintiff  is  entitled  to possession after  demolition  of  the  construction  on  the portion found  encroached by  defendant.  The  judgment  and degree of the court below was set aside.      Against this judgment and decree Second Appeal No. 2757 of 1963  was filed  before the High Court at Allahabad. This appeal was  dismissed by  judgment and  order dated 8.9.1963 and the judgment and decree of the lower appellate court was affirmed.      A review  application No. 269 of 1969 for the review of the said 1034      judgment was  filed before the High Court on the ground that the  alleged partition  deed dated 17th March, 1963 was not in  fact a  deed of  partition but  merely an  agreement between the  parties to partition the property and there was no actual  partition by  metes  and  bounds.  The  defendent continued to  remain co-owner  and co-sharer of the property in suit.  The decree  passed in  the said  suit  is  neither possible  nor   permissible  under   the  law.  This  review

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application was allowed by judgment and order dated December 9, 1970 setting aside the judgment dated 8th September, 1969 and directing  the appeal  to be listed for further hearing. Accordingly on  21.12.1970  the  appeal  was  heard  by  the learned judge  who held that the mere allotment of shares by the said  deed of  partition did  not amount to partition by metes and  bounds. The  appeal of  the defendant was allowed and the  judgment and  decree of  the lower  appellate court were set aside and the suit was dismissed.      Against this  judgment and decree the instant appeal on special leave  was  filed  by  the  plaintiff.  The  learned counsel for  the plaintiff  tried to urge before us that the land in  dispute marked  as GCDH in the plan was allotted to the share  of the plaintiff’s vendor Ramji Lal in accordance with the deed of partition (Ext. 3/1) and shown in map (Ext. 3/2) effected  between the parties on 17.3.1958 and this has been mentioned  in the  sale deed (Ext. 1) executed by Ramji Lal,  one  of  the  co-sharers  of  the  property.  It  has, therefore, been  submitted that  the judgment  and decree of the High  Court is  not in accordance with law and it should be set  aside. This  contention advanced  on behalf  of  the plaintiff cannot  be sustained  in as  much as  there is  no pleading in  the plaint  that the disputed property shown in red colour  and marked  as GCDH fell within the allotment of the plaintiff on the basis of the deed of partition executed in 1958 between the plaintiff’s vendor Ramji Lal and his two other brothers-Daulat  Ram and  Bishambhar Nath. It was also been not pleaded that the disputed mud wall and the Khaprail over it  were all  along in  possession of his vendor before the sale of the said land measuring 1580 Sq. ft appertaining to Property  No. 164A.  The plaintiff’s  case is that he got possession of  the land he purchased including the suit land on May 9, 1961 and the defendant illegally trespassed on the said portion  of land  marked in  red  colour  in  the  plan attached to  the plaint  and hurriedly constructed a low mud wall and  extended his  khaprail thatch  over it  on May 22, 1961 and so the suit for recovery of possession of this land on demolition of the unauthorised construction put up by the defendant was  brought. There  is no  pleading regarding the partition of the Property No. 164 between 1035 Ramji Lal  and his two brothers nor there is any pleading to the effect  that the  disputed mud wall with the khaprail on it was ever in possession of his vendor Ramji Lal before the sale of  the land in question in favour of the plaintiff. On the other  hand, the  defendant strongly  and  categorically stated in his written statement that the mud wall along with khaprail were  in existence there for a long time and he was living  in  the  said  khaprail  to  the  knowledge  of  the plaintiff’s vendor.  He also  denied that  he made  any  new construction of the wall on 22nd May, 1961 as alleged by the plaintiff. He  also stated  that the wall and the tiled roof belonged to  the defendant  and the  existence of  the tiled roof had  been at the same place in the same condition for a long time  long before. the partition deed made in 1958. The defendant also  stated in  his written  statement that  more than twenty years before private parition took place amongst the defendant and his brothers Bish ambar Lal and Ramji Lal. Property  No.  163  and  164  had  come  to  his  share.  He demolished  the   Property  No.   163,  and  he  made  pucca construction therein.  Property No.  164 is khaprail wherein the contesting  defendant is  living and  was also living at the time of partition.      The plaintiff  has examined  three witnesses  including himself and his vendor Ramji Lal. P.W. 1 Ramji Lal stated in

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his deposition  that the  portion shown  in red  in plan No. 36/4 Ka came to his share and defendant Daulat Ram was never in possession  of this  red portion  after partition. It was also his  evidence that  at the time of sale, wall belonging to Daulat  Ram did  not exist over the portion showed in red colour. In  cross-examination he said that there was a tiled shed towards  the north  of the  land in dispute. Daulat Ram used to  live therein.  All these  three  portions  had  old tiles. There  was a  chhappar over the portion shown in red. Tiled roof  was made  after the  fire accident.  It happened about 28  years back.  The land in dispute has been affected by salt  and the  adjoining  kuchha  walls  have  also  been affected by  salt. P.W.  2 Harish  Chandra,  the  plaintiff, stated in  his evidence  that he was not present at the time encroachment was  made by  constructing a wall. Some persons told   him   about   the   extension   of   the   wall.   On crossexamination he  stated that  pucca rooms  belonging  to Daulat Ram stand at No. 163. He cannot say if they have been in existence  15-20 years.  It is  the evidence of defendant Daulat Ram, D.W. 1, that the wall in dispute has been in its place since  the time  he attained  the age  of  discretion. There has  been tiled roof for the last about 28 years back. Before that  there was  a thatched  shed.  It  is  also  his evidence that  his mother effected partition about 28 years. The wall in dispute was in existence when this partition was effected. It has been existing 1036 in the  same condition  since then.  It is also his evidence that his mother got the partition effected 28 years back. He also stated  in crossexamination  that he  did not affix his thumb impression  on the  plan  prepared  at  the  time  the partition deed  was executed.  No measurements  were done at the time  the plan was prepared. D.W. 2 Khunni Lal a retired overseer stated  in cross-examination  that he had given his opinion that  the wall in dispute belonged to Daulat Ram and that the  flow  of  its  water  on  the  southern  side  was reasonable.      On a consideration of these evidences it is quite clear that the  disputed kachha  wall and  the khaprail over it is not a  new construction,  but existed  for over 28 years and the defendant has been living therein as has been deposed to by Ramji  Lal vendor  of the  plaintiff who  admitted in his evidence that  the land  in dispute and the adjoining kachha walls had  been affected  by salt  and the chhappar over the portion shown  in red  was tiled  roof constructed  about 28 years back.  This is  also supported  by the evidence of the defendant, D.W. 1, that the wall in dispute was in existence when the  partition was effected i.e., 28 years before. On a consideration of  these evidences  the Trial  Court  rightly held that  the defendant had not trespassed over the land in question nor  he had constructed a new wall or khaprail. The trial court also considered the report 57C by the court Amin and held  that  the  wall  in  question  was  not  a  recent construction but  it appeared 25-30 years old in its present condition as  evident from  the said  report. The  suit  was therefore  dismissed.   The  lower  appellate  court  merely considered the  partition deed  and map  Exts. 3/1  and  3/2 respectively and held that the disputed property fell to the share of  the plaintiff’s  vendor and the correctness of the partition map  was not  challenged in the written statement. The court  of appeal  below also referred to Amin’s map 47 A which showed the encroached portion in red colour as falling within the  share of  plaintiff’s vendor,  and held that the defendant encroached  on this  portion of land marked in red colour, without at all considering the clear evidence of the

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defendant himself that the wall and the khaprail in question existed for  the last  28 years  and the  defendant has been living there  all along.  P.W.  1  Ramji  Lal  himself  also admitted that  the wall existed for about 28 years as stated by the  defendant and  the kachha walls and the khaprail has been effected by salt. The lower appellate court though held that P.W.  1 Ramji  Lal admitted  in cross-examination  that towards the  north of  the land  in dispute was the khaprail covered room  of Daulat  Ram in  which Daulat Ram lived, but this does  not mean  that the wall in dispute exists for the last any  certain number  of years,  although it can be said that it is not a 1037 recent construction.  Without considering  the deposition of defendant No.  1 as  well as the report of the Amin 57 C the IInd Addl. Civil Judge, Agra wrongly held that the defendant failed to  prove that  the wall  in dispute and the khaprail existed for the last more than 12 years before the suit. The Civil Judge  further held  on surmises  as "may  be that the wall and  khaprail have  not been  raised in May, 1961 as is the plaintiff’s  case, but  they are  recent constructions." This decision  of  the  court  of  appeal  below  is  wholly incorrect being contrary to the evidences on record.      On a consideration of all the evidences on record it is clearly  established   that  the   alleged  encroachment  by construction of  kuchha wall  and khaprail  over it is not a recent construction  as alleged  to have  been made  in  May 1961. On  the other  hand, it  is  crystal  clear  from  the evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that the disputed wall  with khaprail  existed there  in the disputed site for  a long  time, that is 28 years before and the wall and the khaprail have been affected by salt as deposed to by these two  witnesses. Moreover  the court Amin’s report 57 C also shows the said walls and khaprail to be 25-30 years old in its present condition. The High Court has clearly came to the finding  that though  the partition deed was executed by the parties  yet there was no partition by metes and bounds. Moreover there  is  no  whisper  in  the  plaint  about  the partition of the property in question between the co-sharers by metes  and bounds nor there is any averment that the suit property fell  to the  share of plaintiff’s vendor Ramji Lal and Ramji  Lal  was  ever  in  possession  of  the  disputed property since  the date  of partition till the date of sale to the  plaintiff. The  plaintiff has  singularly failed  to prove his case as pleaded in the plaint.      In the  premises aforesaid  the appeal  fails and it is dismissed. There will however be no order as to costs. A.P.J.                                     Appeal dismissed. 1038