WRIT PETITION 1898 of 2020

11th February 2020

Petitioner Counsel: Mr. S.B. Yawalkar Mr. V.P. Raje
Respondent Counsel: Mr. S.P. Bramhe
Act Name: Specific Relief Act, 1963 Code of Civil Procedure, 1908

Section :
Section 6 Specific Relief Act, 1963

Cases Cited :
Para 15: Ravinder Kaur Grewal Vs. Manjit Kaur and others, 2019(6) Mh.L.J. 87
Para 17: Karnataka Board of Wakf Vs. Government of India and others, (2004) 10 Supreme Court Cases 779
Para 17: S M Karim Vs. Bibi Sakinal, AIR 1964 SC 1254
Para 17: Parsinni Vs. Sukhi, (1993) 4 SCC 375
Para 17: D N Venkatarayappa Vs. State of Karnataka, (1997) 7 SCC 567
Para 17: Mahesh Chand Sharma Vs. Raj Kumari Sharma, (1996) 8 SCC
Para 18: Hemaji Waghaji Jat Vs. Bhikhabhai khengarbhai Harijan and others, (2009) 16 Supreme Court Cases 517
Para 19: Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others, (2004) 3 Supreme Court Cases 137
Para 19: Yashwant Singh Vs. Jagdish Singh, (AIR 1968 SC 620)
Para 19: Krishna Ram Mohate Vs. Mrs. Shobha Venkata Rao, (1989 (4) SCC 131,at p.136)
Para 19: Ram Rattan Vs. State of U.P., (1977 (1) SCC 188)
Para 19: State of U.P. Vs. Maharaja Dharmender Prasad Singh, (1989 (2) SCC 505)
Para 19: K.K. Verma Vs. Union of India, (AIR 1954 Bom. 358)
Para 19: Mahadeo Savlaram Shelke Vs. Pune Municipal Corporation, (1995 (3) SCC 33)
Para 19: Shiv Kumar Chadha Vs. Municipal Corporation of Delhi, (1993 (3) SCC 161)
Para 19: Dalpat Kumar Vs. Prahlad Singh, (1992 (1) SCC 719)

JUDGEMENT

1. Rule. Rule is made returnable forthwith. Heard finally with consent of the parties.

2. The petitioners are defendants in Regular Civil Suit No. 139 of 2019 brought by the respondents seeking declaration of ownership of the suit property by adverse possession and consequential permanent injunction.

3. The parties shall be referred to by their status in the Trial Court.

4. It is averred in the suit plaint that plaintiff 1 is the owner and in possession of agricultural field admeasuring 0.90 HR assigned Gat 91/1-A and plaintiff 2 is the owner and in possession of agricultural land assigned Gat 91/1-B admeasuring 1.20HR.

5. The plaintiffs aver that the defendants are the owners of agricultural field Gat 90 admeasuring 1.04HR, which is situated to the West of the agricultural field of the plaintiffs.

6. The further averment in the plaint is that plaintiff 1 purchased the agricultural field from Bhaga Bapu Hatkar in 1982 without measuring the field.

7. The most significant averment on which the edifice the suit is constructed is that the plaintiffs felt that the land in their possession is lesser than the area recorded in the sale deed/s and, therefore, the plaintiffs encroached and took possession of portion of Gat 90, owned by the defendants. The plaint avers that the plaintiffs are in open, peaceful and continuous possession of the encroached portion admeasuring 0.72HR since 1982, and have therefore, perfected their title by prescription.

8. The plaint avers that it was only on 26th June 2019 that the defendants asserted ownership rights qua the encroached portion, and the plaintiffs are constrained to institute the suit.

9. The plaintiffs preferred an application under Order 39 Rules 1 & 2 of the Civil Procedure Code, seeking temporary injunction restraining the defendants from disturbing their possession.

10. The defendants filed an affidavit in response denying each and every material averment in the suit plaint. The defendants categorically denied that the plaintiffs are in open and peaceful possession of the alleged encroached portion since 1982. The defendants contended that the entire agricultural field admeasuring 1.04 HR assigned Gat 90 was and is in possession of the defendants. The father of defendant 1, Narayan Jayram Hatkar (Chitalkar), was in possession since 1952 and after his death on 13th August 2008 the defendants are jointly cultivating the entire Gat 90, which cultivation is evidenced from the revenue record and other voluminous cogent documentary material. The defendants contended that plaintiff 1 retired from the Police Department and is of dubious character. The defendants contended that plaintiff 1 attempted to physically browbeat the defendants and grab the agricultural field. The defendants finally contended that plea of adverse possession is available only as a shield and not as a sword.

11. The Trial Court rejected the application seeking temporary injunction, vide order dated 4th October 2019.

12. The Trial Court noted that the plaintiffs and the defendants placed on record the affidavits in support of the rival contentions. The Trial Court then considered the revenue record inter alia the 7/12 extracts pertaining to Gat 90 for the year 1952 to 2018-2019. The Trial Court found that, prima-facie, the defendants are in possession of the suit property and, therefore, refused to clamp the injunction.

13. The plaintiffs preferred Miscellaneous Civil Appeal 43 of 2019, which is allowed by the order impugned. The Appellate Court was alive to the presumptive value of the revenue entries, which overwhelmingly reflect the possession of the defendants. However, the Appellate Court held that the presumption flowing from the revenue record stood rebutted since the plaintiffs measured the suit land on 8th April 2019 and the measurement purportedly records the possession of the plaintiffs qua the encroached portion. The Appellate Court observes that the Trial Court totally ignored the measurement conducted by the Cadestrial Surveyor.

14. I have heard Shri S.P. Bramhe, learned Counsel for the plaintiffs and Shri S.B. Yawalkar, learned Counsel for the defendants and with their able assistance, the reasons recorded by the Courts below and the pleadings are scrutinized. In my considered view, the petition must be allowed for the reasons spelt out infra.

15. The plaintiffs are admittedly encroachers. The plaintiffs contend, and brazenly, that since the plaintiffs felt that the land purchased is less than the area recorded in the sale deed, the plaintiffs consciously and deliberately encroached 0.76R portion of Gat 90 owned by the defendants. In view of the decision of the Hon’ble Apex Court in Ravinder Kaur Grewal Vs. Manjit Kaur and others, 2019(6) Mh.L.J. 87, it is no more res integra that the plea of adverse possession can be used as a sword. However, the seminal issue is, whether in the factual matrix, it is established by the plaintiffs that, prima-facie, the plaintiffs are in open, hostile and continuous possession of the alleged encroached portion for the prescribed period.

16. It is well settled that the plaintiffs, who claim that the title is perfected by adverse possession, must prove three requirements, nec vi, nec clam and nec precario. The possession must be adequate in continuity, in publicity and in extent. Adverse possession is a much criticised and maligned concept. The perception is that concept of adverse possession rewards a wrong doer. Pre-dominent judicial view is that a plea that title is perfected by adverse possession, must be subjected to rigorous test and the burden to prove such plea by establishing that the possession is open, hostile and continuous is heavy on the claimant.

17. In Karnataka Board of Wakf Vs. Government of India and others, (2004) 10 Supreme Court Cases 779 , the Hon’ble Supreme Court has observed thus:
“11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC) ”

18. In Hemaji Waghaji Jat Vs. Bhikhabhai khengarbhai Harijan and others, (2009) 16 Supreme Court Cases 517, the Hon’ble Apex Court referred to several decisions holding the field and while affirming the judgment of the High Court holding that the title by adverse possession is not proved, observed thus:
“ 32. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
33. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation.
34. In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law. ”

19. In the context of an injunctive relief under Order 39 Rule 1 to a person in unlawful settled possession, it would be apt to note the following observations of the Hon’ble Apex Court in Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others, (2004) 3 Supreme Court Cases 137:
“ 24. There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963.
That Section says that
“if any person is dispossessed without his consent from immovable property other wise 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.”
That a person without title but in "settled" possession - as against mere fugitive possession - can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in Yashwant Singh v. Jagdish Singh (AIR 1968 SC 620), Krishna Ram Mohate v. Mrs. Shobha Venkata Rao, (1989 (4) SCC 131,at p.136), Ram Rattan v. State of U.P. (1977 (1) SCC 188), and State of U.P. v. Maharaja Dharmender Prasad Singh (1989 (2) SCC 505). The leading decision quoted in these rulings is the decision of the Bombay High Court in K.K. Verma v. Union of India (AIR 1954 Bom. 358).
25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction. In Mahadeo Savlaram Shelke v. Pune Municipal Corporation (1995 (3) SCC 33), it was held, after referring to Woodroffe: Law relating to injunctions; Goyle, L.C.: Law of injunctions; Bean, David: Injunction's Jayce: Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993 (3) SCC 161), wherein it was observed that injunction is discretionary and that: (SCC p. 175, para 31)
"Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court".
26. Reference was also made to Dalpat Kumar v. Prahlad Singh (1992 (1) SCC 719) in regard to the meaning of the words 'prima facie case' and 'balance of convenience' and observed in Mahadeo's case (supra) that: (SCC p.39, para 9) "It is settled law that no injunction could be granted against the true owner at the instance of a persons in unlawful possession." “

20. Adverting to the reasons recorded by the Appellate Court while interfering with the discretion exercised by the Trial Court, emphasis and reliance on the purported measurement carried out by the Cadestrial Surveyor at the behest of the plaintiffs on 8th April 2019, three months prior to the institution of the suit, is clearly misplaced. The defendants objected to the measurement and preferred an appropriate application dated 24th June 2019 before the Deputy Superintendent of Land Records. The defendants further assert on oath that police complaint dated 25th July 2019 was lodged in respect of attempt of the plaintiffs to disturb the possession of the defendants. Paragraph 11 of the affidavit in response filed by the defendants reds thus:

(Marathi Language)

“ 11- rlsp dqBysgh dkj.k ÄMys ulrkuk oknhauh ekpZ 2019 e/;s xV ua- 91 ph ekst.kh d:u fnukad 08@04@2019 jksth izR;{k tkxsoj ekst.kh dj.kslkBh vkys vlrk R;kosGh izfroknhauh ekst.kh vf/kdkjh lkGqa[ks ;kauk ekst.kh dj.ksckcr gjdr Äsowu ekst.kh gh dk;ns’khj o izfroknhaps ,sdwu u Äsrk o R;kps tckc u Äsrk oknhaP;k lkax.;kuqlkj gO;k R;kfBdk.kh ef’ku ykowu euekuh i/nrhus ekst.kh d:u Äsryh- o izfroknh lkaxr vlysY;k fBdk.kkiklqu ekst.kh dsyh ukgh- R;keqGs lnj ekst.khl izfroknhauh gjdr Äsowu rlk vtZ fnukad 24@06@2019 jksth ek- mivf/k{kd Hkqeh vfHkys[k ;kaP;kdMs gjdr Äsryh gksrh o rlsp ekiksyhl fujh{kd lkgsc] rkyqdk iksyhl LVs’ku ;kaP;kdMs fnukad 25@07@2019 jksth ys[kh rdzkjh vtZ nsowu oknh gs csdk;ns’khji.ks izfroknhaP;k rkC;kr vlysY;k xV ua- 90 e/;s ;sowu gjdr vMFkGk d:u =kl nsrkr o nenkVh o f’kohxkG d:u ekjgk.k dj.;kph /kedh nsrkr rlsp [kksV;k dslsl nk[ky d:u v’kk /keD;k nsrkr- v’kh ys[kh rdzkj fnyh gksrh- ”

21. In my considered view, the Appellate Court committed jurisdictional error in inferring with the exercise of discretion by the Trial Court. The material on record is not sufficient to record even a prima-facie finding that the three classic requirements nec vi, nec clam and nec precario are established. The plaintiffs are audaciously claiming to be wrong doers. The plaintiffs were under heavy burden to establish that the alleged possession is open, hostile and continuous for the prescribed period, which burden is not discharged. The purported measurement, which is carried out three months prior to the institution of the suit, and which measurement is seriously disputed, is not sufficient to rebut the presumptive value of the revenue entries and other voluminous record, which was rightly considered by the Trial Court.

22. The judgment impugned is clearly unsustainable.

23. The judgment impugned (Exh. ‘G’) is set aside.

24. Rule is made absolute in the aforestated terms.