Holding

The appeal is dismissed; the plaintiff failed to prove title and encroachment, and the partition deed did not constitute a metes‑and‑bounds partition, so the adverse possession claim is not established.

Summary

Hari Chand (plaintiff) sued Daulat Ram (defendant) for recovery of possession of a disputed parcel of land, alleging ownership based on a registered sale deed and claiming the defendant had encroached by constructing a mud wall and khaprail in May 1961. The defendant counter‑claimed ownership by adverse possession under Section 142 of the Limitation Act, 1963, asserting that the wall and khaprail had existed for more than twelve years and that a 1958 deed of partition gave him title. The trial court dismissed the suit, finding the plaintiff had not proved trespass or encroachment. The lower appellate court reversed, holding the partition deed allotted the land to the plaintiff’s vendor and that the defendant failed to prove the wall’s antiquity. The High Court set aside that decision, holding the partition deed did not constitute a metes‑and‑bounds partition and that the plaintiff had not pleaded that the wall was in the vendor’s possession before sale. On appeal, the Supreme Court affirmed the High Court, observing that the evidence showed the wall and khaprail were about 28 years old but the plaintiff never pleaded that they were his vendor’s property, and the partition deed did not create a legal partition. Consequently, the plaintiff failed to establish title or encroachment, and the appeal was dismissed.

Issues considered

Whether the plaintiff proved ownership of the disputed land based on the sale deed and the 1958 deed of partition.
Whether the defendant’s wall and khaprail existed for more than twelve years to invoke adverse possession under s.142 of the Limitation Act, 1963.
Whether the 1958 deed of partition amounted to a partition by metes and bounds, thereby vesting title in the plaintiff’s vendor.
Whether the plaintiff’s pleadings sufficiently alleged that the disputed wall and khaprail were in the vendor’s possession prior to the sale.
Whether the trial court’s findings on the evidence regarding the age of the wall and khaprail were correct.

Legislation cited

Limitation Act, 1963s. 142

Subjects

adverse possessionLimitation Actsection 142partition deedmetes and boundsencroachmentpossessioncivil appealevidence

Judgment

A

,.. HARI CHAND @ HARISH CHANDRA
v.
SHRI DAULAT RAM
B
OCTOBER 15, 1986

[A.P. SEN AND B.C. RAY, JJ.]
~·

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.
c
~T
The appeliant 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 D
wall over and around his land after his purchase, that taking undue
advantage of his temporary absence the respondent wrongfully en-
croached and trespassed along the whole northern length of the land
and hurriedly raised a low mud wall and extended his khaprail thatch
over it.
E
)., 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 im-
memorial, 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 'F

r easement in the form of flowing of water from the tiled roof.

The Additional Muusif dismissed the suit holding that the appel-
' Iant was the owner of the property and that he had failed to prove the
'*' case of tr":'l'ass and encroachment.
G
The appeal filed by the appellant was allowed by ~he 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 afte1· the same was allotted in the
deed of partition dt. 3.3.58, and that the appellant is entitled to posses~

1029
H
1030 SUPREME COURT REPORTS [!986) 3 S.C.R.

A sion after demolition of the construction of the portion found en-
croached by respondent.

The second appeal filed by the respondent was dismissed by the
High Court and the judgment and decree of the lower Appellate Court
were affirmed. The respondent filed a review application alleging that
B
the partition deed dt. 17th March, 1963 was not in fact a deed of
partition bnt 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.

c 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 bound~, set aside the judgment and decree of the
lower Appellate Court and dismissed the snit.

In the appeal to .this Court on behalf of the appellant it was
D
contended that the land in dispute was allotted to the vendor in accor-
dance 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. I) and, therefore, the judgment and decree of the High
Court is not in accordance with law and should be set aside.
E
Dis~issing the appeal,

HELD: l. There is no pleading regarding the partition of the
property No. 164 nor there is any pleading to the effect that the dis-
puted mud wall with the khaprail on it was ever in possession of appel-
lant's vendor before the sale of the land in question in favour of the
F
appellant. [I034H; 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 overit is not a recent construction as alleged to have been
made in May 1961. On the other hand it is crystal clear from the
G
evidence of PW 1 and DW I 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

H
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
Conrt rightly came to the finding that though the partition deed was -
HAR! CHAND v. I?AULAT RAM {RAY,J.{ 1031

.,. executed by the parties yet there was no partition by metes and bounds . A
Moreover, there is no whisper in the plaint about the partition of ~he
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 be was ever in possession of the disputed property since the
date of partition till the date of sale to the appel~ant. The appellant has
B
singularly faild to prove the case as pleaded in the plaint. I !037C-E]
)'-
_,,---
3. Without considering the deposition of Respondent No. I 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
-rr 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 c
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 cootrary to the evidence on record. I 1037A·B I
-(

CIVIL APPELLATE JURI_SDJCTION: Civil Appeal No. 755
D
' of1971

From the Judgment and Order dated 21.12.1970 of the Allaha-
bad High Court in Second Appeal No. 2757 of 1963.

>- D.P. Singh, R.P. Singh and D.S. Mehra for the Appellant.
E
L.P. Vats and S.P. Panday for the Respondent.
~
The Judgment of the Court was delivered by
\.

r 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
F

... 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.
G
610 of 1961 in Court of the Munsif, Agra for recovery of possessfon of
the disputed land shown in red colour attached to the plan marke.d
with letters GCD H on demolition of the unauthorised constructions
4 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
H
1032 SUPREME COURT REPORTS (1986) 3 S.C.R.

A 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
B plaintiff's temporary absence from Agra, wrongfully encroached and
trespassed along the whole Northern length of the plaintiffs land
measuring North to South about 4 ft. and East to West about 62 1/z 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 f'\"P--
c 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 ins-
D pite 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 dee<)
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
E
. to the plaintiff. The wall and khaprail belonging to the contesting
defendant have been existing at their present site since time immemo-
rial. The plaintiff's allegation that the contesting defendant has con-
structed 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
F
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
plaintiff's land is totally wrong, false and baseless. It has been stated
G
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 iontest-
H ing defendant becam'e the absolute owner of the land in dispute on the
HARi CHAND v. DAULATRAMIRAY,J.l 1033

basis of the adverse possession as well and he has a right of easement in A
~ 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 de- B
fendant did not make any new construction as alleged by plaintiff in
';-· the plaint. Property Nos. 163 and 164 consisted of kuchha houses. The
1
contesting defendant demolished the Property No. 163 which had
I 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
~r partition. The defendant therefore, states that the suit is liable to be
dismissed. c
Third Additional Munsif, Agra after )!earing 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
D
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 encroach-
ment. The suit was accordingly dismissed with costs.

Against this judgment and decree the plaintiff preferred an ap-
>-- peal being numbered as Civil Appeal 220 of 1963 in the court of Dis-
E
trict Judge, Agra. This appeal was allowed by the Ilnq Addi. 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

r 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
F

defendant. The judgment and degree of the court below was set aside.

Against this judgment and decree Second Appeal No. 2757 of
Ci
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
--1
-
decree of I.he lower appellate court was affirmed.

A review application No. 269 of 1969 for the review of the said 1-1

_,
1034 SUPREME COURT REPORTS 11986] 3 S.C.R.
A 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
B in suit. The decree passed in the said suit is neither possible nor per-
. missible under the law. This review application was allowed by judg-
men! 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 "\ .....
c 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
D 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 ,.j
E 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

F
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
G 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 unautho-
rised construction put up by the defendant was brought. There is no
H pleading regarding the partition of the Property No. 164 between
HARi CHAND v. DAULATRAM IRAY,J.I 1035

Ramji Lal and his two brothers nor there is any pleading to the effect A
'r that the disputed mud wall with the khaprail on it was ever in posses-
sion 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 B
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 belortged 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 pari- c
tion took place amongst the defendant and his brothers Bishambar 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. D

The plaintiff has examined three witnesses including himself and
his vendor Ramji Lal. P.W. 1 Ramji Lal stated. in his deposition that
the portion shown in red in plan No. 36/4 Ka came to his share and
defendant Daulat Ram wa~ never in possession of this red portion after
)...
partition. It was also his evidence that at the time of sale, wall belong-
E
ing 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

r 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
F

T present at the time encroachment was made by constructing a wall.
Some persons told him about the extension of the wall. On cross-
examination he stated that pucca rooms belonging to Daulat Ram
stand at No. 163. He cannot say if they have been in existenq' 15-20
G
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
-1 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 H
•
1036 SUPREME COURT REPORTS [1986) 3 S.C.R.

A 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 cross-
examination that he did not affix his thumb impression on the plan
prepared at the time the partition deed was executed. No measure-
ments were done at the time the plan was prepared. D. W. 2 Khunni
B 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 construc-
tion, but existed for over 28 years and the defendant has been living
c 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. r-
This is also supported by the evidence of the defendant, D. W. 1, that
D 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 if appeared 25-30
years old in its present condition as evident from the said report. The
E
suit was therefore dismissed. The lower appellate court merely con-
sidered the partition deed and map Exts. 3/1 and 3/2 respectively and
held that the disputed property fell to the share of the plaintiffs ven-
dor and the correctness of the partition map was not challenged in the
written statement. The court of appeal below also referred to Amin's
F 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 defendant himself that the wall
and the khaprail in question existed for the last 28 years and the
defendant has been living the1~ all along. P.W. 1 Ramji Lal himself
also admitted that the wall existed for about 28 years as stated by the
G
.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 Daulai Ram in which Daulat
Ram lived, but this does not mean that the wall in dispute exists for the
H last any certain number of years, although it can be said that it is not a
HARi CHAND v. DAULAT RAM IRA YJ I 1037

recent construction. Without considering the deposition of defendant A
No. 1 as well as the report of the Amin 57 C the Ilnct" Addi.. Civil
Judge, Agra wrongly held that the defendant failed to prove th.at 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
B
plaintiff's case, but they are recent constructions." This decision of the
court of appeal below is wholly incorrect being contrary to the ev,idences
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 c
been made in May 1961 .. On the other hand, it is crystal clear from the
evidences of Ramji Lal P. W. I and Daulat Ram D.W. I that the
disputed wall with khaprail existed there in the disputed site for a Jong
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 D
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 th.ere is any
averment that the suit property fell to the share of plaintiff's vendor E
Ramji Lal and Ramji Lal was ever in possession of the disputed pro-
perty 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.

t- In the premises aforesaid the appeal fails and it is dismissed.
There will however be no order as to costs. F

A.\'.J. Appeal dismissed.