FACTS
The facts of the case are that the respondent/plaintiff claimed ownership of the suit property on the ground that the suit property was originally owned by one Sh. Ram Prashad. Sh. Ram Prashad sold rights in the suit property by way of usual documentation being the Agreement to Sell in favour of Smt. Prem Lata and Sh. Chander Prakash who constructed a boundary wall and a room over the suit property. Smt. Prem Lata and Sh. Chander Prakash sold the suit property along with the superstructure vide documentation to the respondent/plaintiff and since then the respondent/plaintiff is in the possession of the suit property. Respondent/plaintiff further pleaded that though by documentation, area of 600 sq. yds was sold to him, however, on measurement at the spot the area came out to be lesser of 527 sq. yds only. Accordingly, the respondent/plaintiff claimed the relief of declaration of ownership of the suit property in his favor and that he was in lawful settled possession of the property.
The appellants/defendants contested the suit and denied the ownership of the respondent/plaintiff of the suit property. The appellants/defendants pleaded that they are in fact the owners of the suit property and that they have constructed the boundary wall and the room. in the entire written statement filed by the appellants/defendants, there is no reference as to how the appellants/defendants became the owners of the suit property i.e., by which documentation, of which date, and from whom. Also, the only plea in the written statement was denial of ownership of the suit property of the respondent/plaintiff. Also, in the written statement there was no such issue raised that the suit property is not the suit property as stated in the plaint.
ISSUES
· Whether the plaintiff is the actual owner of the suit property?
· Whether the defendants are owners of the suit property as alleged in the written statement?
· Whether the plaintiff is in possession of suit property?
· Whether the plaintiff is entitled to the relief claimed?
RULE OF LAW
I. Section 100 of the Code of Civil Procedure, 1908- Second appeal.
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this subsection shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
II. Section 6 in The Specific Relief Act, 1963- Suit by person dispossessed of immovable property.
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought—
a) after the expiry of six months from the date of dispossession; or
b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
ANALYSIS
The first appellate court by its impugned judgment set aside the Judgment of the Trial Court. Dismissing the suit for declaration for declaring the respondent/plaintiff as the owner in possession of the suit property and injunction the appellants/defendants from disturbing the settled possession of the respondent/plaintiff. The original defendants in the suit died pendente lite (during litigation) and they are now represented by appellants who are their legal heirs. Reference to defendants will include reference to the appellants who are their legal heirs. The Trial Court by its Judgment held that the respondent/plaintiff failed to prove ownership of the suit property because an agreement to sell and general power of attorney cannot confer title rights in an immovable property. As regards issue no.2, it was held by the trial court that even the appellants/defendants failed to prove their ownership of the suit property.
Trial court, however, held that the respondent/plaintiff was in possession of the suit property. Appellants/defendants proved no documents to prove their claim of ownership of the suit property, and even if the copies of the documents filed by the appellants/defendants are investigated, the same show the claim of ownership of only 125 sq. yds. whereas the suit property as per the documentation of the respondent/plaintiff was of 600 sq. yds. Appellants/defendants claimed to have been dispossessed by the respondent/plaintiff from the suit property, however, the subject suit was filed after six months and the appellants/defendants did not file any suit for possession within the period of six months from dispossession under Section 6 of the Specific Relief Act, 1963. This aspect and conclusion are further buttressed by the first appellate court by holding that although the appellants/defendants claimed to have been dispossessed no suit for possession was filed by the appellants/defendants till the time the appeal was decided in 2008, and which would be a period of about 22 years, and therefore, the respondent/plaintiff, in any case, would be the owner by the law of prescription and adverse possession as against the appellants/defendants.
CONCLUSION
It is therefore seen that on the one hand the respondent/plaintiff has proved the documentation for claiming rights in his favour under Section 202 of the Indian Contract Act with respect to the suit property being the general power of attorney Ex.PW1/2 executed in his favour by the earlier owners Smt. Prem Lata and Sh. Chander Prakash and who had themselves purchased from the earlier owner Sh. Ram Prashad, the appellants/defendants, on the other hand, not only laid out a totally vague written statement by not stating as to how and when and by which documentation the appellants/defendants became the owners of the suit property, but that even in the evidence led on behalf of the appellants/defendants, no documentary evidence was proved to show ownership of the appellants/defendants of the suit property. In fact, appellants/defendants did not claim ownership of the suit property but claimed ownership of another property which is stated to be in rectangle no.
Also, the documentation of the claim of title of the appellants/defendants, even if looked into, was only for 125 sq. yards and not for 600 sq. yds. /527 sq. yds. and which is the area of the suit property. The trial court wrongly held that the documentation dated 25.9.1985 cannot confer rights in the suit property in favor of the respondent/plaintiff since the documentation in favour of the respondent/plaintiff are prior to 24.9.2001 and only where after the agreement to sell in part performance under Section 53A of Transfer of Property Act, 1882 required ad valorem stamping and registration. In view of the above, it is seen that the first appellate court has rightly reached its conclusions on the basis of a valid reasoning of the respondent/plaintiff being in settled possession when the subject suit was filed, and that the respondent/plaintiff having proved his claim of title rights in the suit property as per general power of attorney Ex.PW1/2 which gives rights under Section 202 of the Indian Contract Act, the appellants/defendants pleaded only vaguely in the written statement the claim of ownership without any details and did not even prove the alleged ownership, and finally that till 22 years after the alleged dispossession of the appellants/defendants from November, 1985 till 2008, when the first appeal was decided, no suit for possession was filed by the appellants/defendants against the respondent/plaintiff for possession and hence the respondent/plaintiff, would become the owner by law of prescription and adverse possession.
I would like to note that today is now about 31 years from November 1985 and yet no suit has been filed by the appellants/defendants against the respondent/plaintiff for possession and which they could have always done even if their application for amendment of the written statement to include the relief of counterclaim of possession and damages was dismissed vide Order dated 28.1.1997. No substantial question of law arises for this Regular Second Appeal to be entertained. The second appeal is accordingly dismissed, leaving the parties to bear their own costs.
This article has been written by,
Sanket, Content writer, Legalinsight.in
Symbiosis Law School.
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