MURTI SHRI DURGA BHAWANI (HETUWALI) TRUST & ANRversusSH. DIWAN CHAND (DEAD) THROUGH LRS & ORS.

366                      [2023]REPORTS
               SUPREME COURT    3 S.C.R. 366                [2023] 3 S.C.R.


A     MURTI SHRI DURGA BHAWANI (HETUWALI) TRUST & ANR.
                                        v.
           SH. DIWAN CHAND (DEAD) THROUGH LRS & ORS.
                         (Civil Appeal No. 6801 of 2010)
B                                APRIL 11, 2023
              [ABHAY S. OKA AND RAJESH BINDAL, JJ.]
             Adverse possession – Ownership/title to property – Appellant,
      owner of land forming part of khasra No. 4833 – Suit for possession
C     alleging that respondents had encroached the said land –
      Respondent’s case that they are in possession for the last 34 years;
      that they had become owners of the suit property by way of adverse
      possession and the suit property is not part of Khasra No. 4833 –
      Trial court decreed the suit for possession in favour of the appellants
      and the respondents ejected from the suit property – However, the
D     lower appellate court set aside the order of the trial court on the
      ground that the appellants failed to prove their title to the property
      – High Court upheld the order of the lower appellate court – On
      appeal, held: On facts, the respondent failed to establish ownership
      by way of adverse possession – Title and ownership to the suit
E     property established in favour of the appellants – Admissions and
      submissions by the respondent that property in dispute is part of
      Khasra No. 4833 – Appellants have been admitted to be owner of
      the property being Khasra No. 4833 – This finding has even been
      recorded in the impugned order passed by the High Court as also
      first appellate court – There is no challenge to the said finding by
F
      the respondents – Appellants have been non-suited on the ground
      that the respondents are not in possession of any part of khasra
      No. 4833 as the property in their possession is different – However,
      the findings recorded by the lower appellate court as well as the
      High Court are perverse if considered in the light of the material
G     documents which are in the form of admission of respondents
      themselves regarding the identity of the property in their possession
      – As regards the plea of the respondents that they became owner of
      the property by way of adverse possession, the respondent lost on
      this ground in the earlier litigation – Still further the plea of the
      respondents about adverse possession pre-supposes ownership of
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                                       366
  MURTI SHRI DURGA BHAWANI (HETUWALI) TRUST v. SH.                           367
         DIWAN CHAND (DEAD) THROUGH LRS

the specific property of the appellants, which is claimed to be in           A
possession of the respondents – Thus, order passed by the High
Court are set aside.
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6801
of 2010.
                                                                             B
      From the Judgment and Order dated 05.04.2010 of the High Court
of Punjab & Haryana at Chandigarh in RA No.25 of 2010 and RSA No.
2306 of 1997.
      With
      Civil Appeal Nos. 6802, 6803 and 6804 of 2010.                         C
       Neeraj Kumar Jain, Sr. Adv., Rajinder Mathur, Ms. Tanuj Bagga
Sharma, Tarun Mathur, M K Ravi, Akshat Singhal, Siddharth Jain, Advs.
for the Appellants.
      Sanjay Parikh, Sr. Adv., Ms. Srishti Agnihotri, Satwik Parikh, Ms.
Sanjana Grace Thomas, Ms. Mantika Vohra, A. N. Arora, Advs. for the          D
Respondents.
      The Judgment of the Court was delivered by
      RAJESH BINDAL, J.
      1. The plaintiffs are before this Court impugning the orders passed    E
by the High Court in the Regular Second Appeal Nos. 2306 & 2307 of
1997, which upheld the judgments and decrees of the Lower Appellate
Court, reversing that of the Trial Court in Suit Nos. 273 and 274 of 1989.
The appeals filed by the appellants were dismissed. The orders dated
5.4.2010 passed in Review Application Nos. RA-RS-25C & 26-C of               F
2010 against the aforesaid appeals are also under challenge.
       2. The case has a chequered history. However, the facts leading
to the present appeals are being noticed from Civil Appeal No. 6801/
2010. However, wherever required, the previous litigation pertaining to
the said property shall be referred to.                                      G
      3. The appellant is a registered Charitable Trust, which is the
owner of the land forming part of Khasra No. 4833. A suit was filed by
the appellant on 26.5.1982 for possession. It was alleged that the land
was encroached upon by the respondents/defendants. The suit was
contested by the respondents/defendants raising objection that the           H
368            SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A     appellants/plaintiffs are not the owners of the property in dispute; they
      have no locus to file the suit; the defendants are in possession of the
      property for more than 34 years and running their business; and the suit
      property is not part of Khasra No. 4833. It was also pleaded that they
      had become owners of the suit property by way of adverse possession.
B           4. The suit was decreed by the trial court vide judgment dated
      28.2.1991. The respondents/defendants were ordered to be ejected from
      the suit property. Appeal filed by the respondents/defendants, was
      accepted by the learned Additional District Judge. The judgment and
      decree of the Trial Court was set aside primarily on the ground that they
      had failed to prove their title to the property.
C
            5. The judgment and decree of the lower appellate court was
      upheld by the High Court in appeal vide order dated 13.10. 2009 and the
      Review Application was also dismissed on 5.4.2010.
              6. Mr. Neeraj Jain, learned senior counsel appearing for the
D     appellants submitted that the trial court, while appreciating the evidence,
      had rightly decreed the suit. However, on a misreading of the evidence,
      the first appellate court had reversed those findings. High Court also fell
      in error in upholding the judgment of the Lower Appellate Court. He
      further submitted that before the Trial Court, during the course of
      arguments, learned counsel appearing for the respondents/defendants
E     had categorically admitted that the disputed site is part of Khasra No.
      4833. In fact, plea of adverse possession could be raised only if the
      ownership of property is not in dispute. The High Court also recorded a
      categoric finding that Khasra No. 4833 belongs to the appellants.
      However, the relief was denied to the appellants only on the ground that
F     the identity of the property was in dispute. The High Court was of the
      opinion that it is not forming part of Khasra No. 4833. The finding of the
      High Court that Khasra No. 4833 is owned by the appellants/plaintiffs
      has not been challenged by the respondents.
             7. He further submitted that an application was filed by the
G     Respondents on 2.8.1993 before the Tehsildar-cum-Assistant Collector,
      2nd Grade, Karnal for correction of Khasra Girdawari from Rabi 1990
      onwards. A categoric admission was made by the respondents therein
      that the area in possession of the respondents was part of Khasra No.
      4833 and they are in possession thereof, which is evident from Jamabandi
      for the year 1994-95. The report of the Local Commissioner, submitted
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 MURTI SHRI DURGA BHAWANI (HETUWALI) TRUST v. SH.                                369
DIWAN CHAND (DEAD) THROUGH LRS [RAJESH BINDAL, J.]

in a different litigation i.e. Civil Suit No. 371 of 1981, which was relied      A
upon by the Lower Appellate Court (Ex. D-16), was without ascertaining
any pucca points. He further referred to document at page 97 of the
paper book whereby the respondents submitted building plans to the
Municipal Committee for the property in dispute specifically mentioning
that it is part of Khasra No. 4833. With the aforesaid material on record,
                                                                                 B
the findings recorded by the lower appellate court as well as the High
Court that identity of the property was in dispute, are totally perverse, as
it was the admitted case of the respondents themselves that property in
their possession was part of Khasra No. 4833.
       8. It was also argued that earlier the respondents, namely, Sunder
                                                                                 C
Dass and Gopal Singh had filed Civil Suit No. 371 of 1981 on 29.05.1975
for permanent injunction restraining Bhagwat Sarup, Anand Sarup and
Pt. Har Sarup from dispossessing them from the suit property and the
plea of adverse possession was also raised. As far as the plea of adverse
possession is concerned, the findings were against the present
respondents/the plaintiffs therein whereas decree of permanent injunction        D
was passed on account of long possession of respondents holding that
they cannot be dispossessed except in due course of law. It was with
reference to the same suit property. The suit was partly decreed on
30.09.1981.
       9. On the other hand, Sh. Sanjay Parikh, learned senior counsel           E
appearing for the respondents submitted that it is too late for the appellants
to raise all the factual issues before this Court. There is concurrent
finding of facts recorded by both the courts below in favour of the
respondents and there is nothing on record to dislodge that finding. The
respondents are unnecessarily being dragged in litigation. The report of
                                                                                 F
the Local Commissioner dated 2.12.1978, already on record, clearly points
out that the premises in possession of the respondents is not part of
Khasra No. 4833, rather it is 434 feet beyond that. New issues are
sought to be raised before this Court, which cannot be permitted. The
respondents are in possession of the property for the last more than 34
years. In fact, even in the appeal before the High Court, no substantial         G
question of law was framed and there is no legal issue as such, which
requires determination by this Court.
       10. We have heard learned counsel for the parties and perused
the relevant material on record.
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370             SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A            11. From the judgments on record it is evident that a judgment and
      decree dated 30.7.1965 was passed in favour of the predecessors in
      interest of the appellants in Harsarup vs. Municipal Committee by Sub
      Judge, Karnal. (Suit No. 292 of 1962)
            12. The appellant filed a petition for execution of the aforesaid
B     decree against the Municipal Committee for the2 disputed property in
      the year 1974. The predecessor-in-interest of the respondents were also
      impleaded as respondents in the Execution Petition as they were
      obstructing the execution of decree and trying to raise construction
      thereon.
C           13. A Local Commissioner was appointed in the aforesaid execution
      proceedings, who after visiting the site, submitted his report on 19.1.1975
      before the Court. In the report, he stated that the shops in question
      constructed by the respondents are built on Khasra No. 4833. Nothing
      was pointed out from record about the status of the aforesaid execution
      proceedings.
D
             14. As has been noticed by the Lower Appellate Court in judgment
      dated 16.1.1997 that during the course of proceedings in the aforesaid
      Execution Petition, the respondents were allowed to raise construction
      on an undertaking given by their predecessor-in-interest that in case
      they lose, they will not claim any compensation.
E
              15. During the pendency of the aforesaid execution petition, the
      predecessor-in-interest of the respondents filed a suit bearing No. 371/
      1981 against Bhagwat Sarup, Trustee of the appellant Trust. In the said
      suit, two main issues were framed, namely, whether the plaintiffs therein
      had become owners of the property by way of adverse possession and
F     the second was as to whether the plaintiffs are bound by the decree in
      Suit No. 292 of 1962, Harsarup vs. Municipal Committee, Karnal.
      The mere fact that the predecessor-in-interest of the respondents had
      filed the suit claiming ownership of the property on the basis of adverse
      possession, pre-supposes that the ownership of the appellants on the suit
G     property was admitted. In any case, the issue regarding the predecessor-
      in-interest of the respondents having become owner of the property in
      dispute by way of adverse possession was decided against the plaintiffs
      therein. It was specifically held that the plaintiffs in the aforesaid suit
      had failed to prove their adverse possession. Finally, the plaintiffs therein
      partly succeeded as only a decree of permanent injunction was passed
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 MURTI SHRI DURGA BHAWANI (HETUWALI) TRUST v. SH.                                371
DIWAN CHAND (DEAD) THROUGH LRS [RAJESH BINDAL, J.]

in their favour restraining the defendants therein from interfering in their     A
possession except in due course of law on 30.09.1981. In the aforesaid
suit Sadar Kanoongo was appointed as Local Commissioner. He had
given his report on 02.12.1978 stating that property in possession of the
respondents was 434 ft. away from Nala. The report did not even mention
about Khasra No.4833. No pucca points were mentioned. It was as
                                                                                 B
vague as possible. The decree attained finality.
       PRESENT LITIGATION
       16. The Trust filed a Civil Suit No. 273 of 1989 on 26.5.1982 for
possession. The main reliance of the respondents was on the report of
the Local Commissioner submitted in earlier Suit No. 371/1981 filed by           C
the respondents. A perusal of the report of the Local Commissioner
dated 2.12.1978 shows that the pucca points were not ascertained before
carrying out the measurements. In the abvoesaid report, where Kanoongo
was the Local Commissioner, the finding was given that the property in
dispute was located 434 ft. beyond naala. The site plan was also annexed
                                                                                 D
with the report in which except showing the road and a naala, no khasra
numbers were mentioned to identify the property properly. The fact that
there was already a report of Local Commissioner dated 19.1.1975
pertaining to the same property, was not even referred to. This was a
report by the Local Commissioner appointed in the Execution Proceedings
filed by the predecessor-in-interest of the appellant, in which predecessor-     E
in-interest of the respondents were also party. This report inspires
confidence as before carrying demarcation of the property pucca points
were marked and specific khasra no.4833 was measured. Proper plan
is also annexed with the aforesaid report.
       17. The stand taken by the defendants in the present suit was that        F
they are in possession for the last 34 years. The suit property is not part
of Khasra No. 4833 and further that they had become owners of the
property by way of adverse possession. The suit was finally decreed in
favour of the appellants. In para 13 of the judgment, the trial court recorded
the statement made by the learned counsel appearing for the defendants
                                                                                 G
that the suit property is part of Khasra No. 4833. The same reads as
under :-
       “13. During the course of arguments, Sh. T.P.S. Bedi Adv. has
       conceded this fact that the disputed site is part of Khasra No.
       4833. No doubt, he has at one stage argued that the identity of the
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372             SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A           property is not established but since he has conceded this fact
            that the disputed site is part of Khasra No. 4833 there is no
            necessity to look into the evidence that it is not within Khasra No.
            4833.”
             18. As far as the plea raised by the defendants therein regarding
B     they becoming the owner of the property by way of adverse possession,
      the finding was that in the earlier litigation, the defendants had already
      lost on that ground alone (Ref. Suit No. 371/1981). The aforesaid two
      facts clearly established the identity of the property.
             19. Another fact which clearly establishes that it was the admitted
C     case of the respondents herein that the property in dispute is part of
      Khasra No. 4833 is evident from an application filed by the predecessor-
      in-interest of the respondents before the Tehsildar-cum-Assistant
      Collector on 2.8.1993 seeking correction of Khasra Girdawari, wherein
      it was claimed that the applicants were the owners in possession of the
      shops since 1950 and the same was part of Khasra No. 4833. The
D
      Assistant Collector, Second Grade, Karnal, vide order dated 17.2.1994
      directed for correction of Khasra Girdawari holding that the applicants
      therein/predecessor-in-interest of the respondents were in possession
      of part of Khasra No. 4833.
            20. Aggrieved against the judgment and decree of the trial court
E
      dated 28.2.1991, the predecessor-in-interest of the respondents filed
      appeal. The same was allowed by the learned ADJ vide judgment and
      decree dated 16.1.1997. In para 14 of the judgment, while referring to
      Suit No. 292 of 1962, the opinion expressed by the First Appellate Court
      was that the appellants were co-owners of Khasra No. 4833. However,
F     relying upon the report of the Local Commissioner dated 2.12.1978, it
      was opined that the suit property being different and the present appellants
      not being the owners thereof, they are not entitled to any relief.
             21. The appellants challenged the judgment and decree of the
      lower appellate court by filing RSA No. 2306/1997 before the High Court
G     of Punjab and Haryana. Even in the order passed by the High Court
      dismissing the appeal, it has been specifically recorded that undisputedly,
      the appellants are the owners of Khasra No. 4833. Still referring to the
      report of the Local Commissioner dated 2.12.1978, the appellants were
      held not to be entitled to any relief. Even the Review Application filed
H     against the aforesaid judgment was dismissed.
 MURTI SHRI DURGA BHAWANI (HETUWALI) TRUST v. SH.                              373
DIWAN CHAND (DEAD) THROUGH LRS [RAJESH BINDAL, J.]

       22. It is evident from the facts, which have come on record in the      A
present litigation, that the appellants have been admitted to be owner of
the property being Khasra No. 4833. This finding has even been recorded
in the impugned order passed by the High Court dismissing the Second
Appeal. There is no challenge to the aforesaid finding recorded by the
High Court by the respondents. In fact, they could not as there was
                                                                               B
admission of the respondents to that effect before the Trial Court as
well.
       23. The only issue on which the appellants have been non-suited
is that the respondents are not in possession of any part of Khasra No.
4833 as the property in their possession is different. However, on that
issue as well, the findings recorded by the lower Appellate Court as well      C
as the High Court are perverse if considered in the light of two material
documents which are in the form of admission of respondents themselves
regarding the identity of the property in their possession. First being the
statement of the counsel for the respondents made before the Trial court
as has been noticed in para no. 17 above and second is the application         D
filed by the respondents before the Tehsildar-cum-Assistant Collector
for correction of Khasra Girdawari specifically admitting that they are
in possession of part of Khasra No. 4833. In addition to that, there is a
report of the local Commissioner dated 19.1.1975 submitted by the Naib
Tehsildar. It was in the execution petition filed by the predecessor-in-
interest of the appellants of the decree passed in his favour in Harsarup      E
vs. Municipal Committee by the Sub Judge, Karnal. Still further the
plea of the respondents about adverse possession pre-supposes ownership
of the specific property of the appellants, which is claimed to be in
possession of the respondents.
       24. For the reasons mentioned above, the order passed by the            F
High Court dismissing the review applications and appeals filed by the
appellants and the judgments and decrees of the Lower Appellate Court
cannot be legally sustained and the same are set aside and the appeals
are allowed. The judgments and decrees passed in Suit Nos. 273 and
274 of 1989 by the trial court are restored.                                   G
       25. The decree sheet be prepared.

Nidhi Jain                                                  Appeals allowed.
(Assisted by : Shraddha Singh and Tamana, LCRAs)
                                                                               H