CIVIL

SAIF UL REHMAN Vs. AKBAR ALI AND OTHERS

Second Appeal-Adverse Possession-The petitioner-defendant failed to lead any cogent evidence of his being in possession of the suit property ever since 1970 and, Therefore, the trial court was fully justified in not placing reliance on the house-tax and water tax bills raised by the Municipal Corporation in the name of the appellant-defendant for the period 1975-76, so as to uphold the plea of adverse possession of the defendant-respondent.

DELHI HIGH COURT

SINGLE BENCH

( Before : Ramesh Chand Jain, J )

SAIF UL REHMAN — Appellant

Vs.

AKBAR ALI AND OTHERS — Respondent

Regular Second Appeal No. 152 of 2001

Decided on : 09-10-2001

Civil Procedure Code, 1908 (CPC) – Section 100
Civil Procedure Code, 1908 (CPC) — Section — 100 — Second Appeal

Cases Referred

U.P. Rajya Vidyut Parishad Apprentice Welfare Association and Another Vs. State of U.P. and Others, (2000) 6 JT 227 : (2000) 5 SCC 438 : (2000) SCC(L&S) 708
Santakumari and Others Vs. Lakshmi Amma Janaki Amma (D) By Lrs. and Others, AIR 2000 SC 3009 : (2000) 9 JT 233 : (2000) 5 SCALE 531

Counsel for Appearing Parties

S.P. Singh and P.K. Bhalla, for the Appellant;

JUDGMENT

R.C. Jain, J.—Having heard the learned counsel for the parties at sufficient length this appeal is being finally disposed of at this stage itself.

2. This appeal is directed against the judgment and decree dated 30-8-1999 passed by the learned Civil Judge, Delhi and confirmed in first appeal by the learned Additional District Judge, Delhi vide its order dated 18-8-01.

3. Briefly, the facts leading to the present second appeal are that the respondent herein filed a suit for possession against the appellant claiming that he was lessee of Mst. Saeeda Mahmooda a Khaja Bano Nizami in respect of the land underneath the super structure bearing No. 70, Mohalla Kot, Basti Nizamuddin, New Delhi on a monthly rent of Rs. 20/-. The super structure was raised by the plaintiff himself. Around December 1975 on the request of his brother, the appellant was allowed to live in portion of the said house as he had then shifted to Delhi and had no other accommodation. The appellant had promised to vacate the portion of the house as soon as some other suitable accommodation was acquired by him. The petitioner, however, refused to vacate the portion of the said house despite repeated requests during the period between 1976 to 1978 and instead starting disowning the title of the respondent and claiming himself to be the owner of the premises and got allotted a separate number 70-B to the portion in his own name for the purpose of payment of house-tax, water and electricity charges.

4. The appellant contested the suit inter alias on the grounds that he was in adverse possession of the suit property ever since 1970 i.e. for a period of more than 12 years and has, Therefore, become owner thereof and the title of the actual owner, if any, got extinguished due to his adverse possession. The respondent controverted the plea of adverse possession as put forth by the appellant. On the pleadings of the parties, the learned trial court framed the following issues:-

1. Whether the suit of the plaintiff has not been properly valued for the purposes of court fees and jurisdiction? OPD

2. Whether the plaintiff has not approached the court with clean hands? OPD

3. Whether defendant has since become owner of the suit property by way of adverse possession? OPD

4. Whether the plaintiff is entitled to the relief of possession as prayed for? OPP

5. Relief.

5. The learned trial court answered issue No. 1 and 2 in favor of the respondent-plaintiff and issue No. 3 against the appellant by holding that the petitioner-defendant has miserably failed to discharge the burden in proving his plea of adverse possession. The trial court answered issue No. 4 and 5 in favor of the plaintiff and decreed the suit for possession over the suit property subject to paying the deficient court fee. Aggrieved by the judgment and decree the appellant filed the appeal but without success, hence this second appeal.

6. I have heard the learned counsel for the parties at sufficient length and have given my anxious consideration to their respective submissions. In the case of U.P. Rajya Vidyut Parishad Apprentice Welfare Association and Another Vs. State of U.P. and Others, the Supreme Court has clearly laid down that jurisdiction of High Court while dealing with the second appeal is confined to appeals involving substantial question of law and High court has no jurisdiction u/s 100 CPC to interfere with the pure question of act. In this very authority, Supreme court further laid down another principle of law that permissive possession for long does not convert into adverse possession. It also held that the person claiming adverse possession must show hostile animus and possession adverse to the knowledge of the real owner by means of cogent and convincing evidence.

Learned counsel for the appellant has strenuously argued that at least the following two substantial questions of law arise in this appeal:-

1. Whether the decree obtained by fraud and misrepresentation of facts can be permitted to stand and is not a nullity.

2. Whether the respondents can claim a decree for possession in respect of property of which they are neither owners nor landlords.

7. Apart from this, the learned counsel for the appellant has urged that the learned trial court and the first appellate court have misconstrued the relevant documents filed on record and have not come to correct conclusion. That construction of documents is a substantial question of law which can be raised before the High Court in the second appeal. In support of his submissions he has placed reliance upon a Supreme Court decision in the case of Santakumari and Others Vs. Lakshmi Amma Janaki Amma (D) By Lrs. and Others, wherein the Court held that the construction of documents under which claim to property is made is a substantial question of law. In my opinion, the appellant cannot draw any assistance from this authority because it has not been shown on record as to what were the documents of which construction was not correctly made by the trial court or the first appellate court. In the present case the entire defense of the petitioner-defendant rested on the plea of adverse possession based on certain record of the Municipal Corporation with regard to premises No.70-B in his name regarding payment of house-tax etc. This act of the defendant had in fact prompted the respondent to file the suit for possession. It is seen that the learned trial court on a consideration of the entire pleas and material brought on record returned a definite finding that the petitioner had failed to prove his adverse possession over the suit property and in my opinion rightly so. This finding was also based on earlier proceedings i.e. a suit filed by the respondent-plaintiff for permanent injunction against one of the brothers of the appellant-defendant and his two associates which was decreed on 15-2-1975. The petitioner-defendant failed to lead any cogent evidence of his being in possession of the suit property ever since 1970 and, Therefore, the trial court was fully justified in not placing reliance on the house-tax and water tax bills raised by the Municipal Corporation in the name of the appellant-defendant for the period 1975-76, so as to uphold the plea of adverse possession of the defendant-respondent.

8. Having considered the matter in its entirety this Court is of the view that no substantial question of law is raised in this second appeal and no infirmity is seen in the concurrent findings of fact as recorded by the learned trial court and the first appellate court.

9. This appeal being devoid of any merit is hereby dismissed. However, the parties are left to bear their own costs.


(2002) AIHC 1611

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