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Rangi Lal v. Ram Das - FIRST APPEAL No. 187 of 1981  RD-AH 874 (24 March 2005)
First Appeal 187 of 1981
Rangi Lal( deceased) and others Vs. Ram Dass(deceased) and others
This is an appeal against the judgment and decree dated 6.4.1981 passed by Sri Parmeshwar VI Addl. Distrtict Judge, Basti in original suit No. 27 of 1968, Rangi Lal and others Vs. Ram Das and others
The facts giving rise to this appeal , in brief, are that the plaintiffs Swami Nath and Smt. Parwati originally filed the aforesaid suit against the defendants Ram Das, Bhagwan Das , Sarjoo and Smt. Gujrati in the court of Munsif, Basti in the year 1965 alleging that one Laxman had three sons named Swami Nath, plaintiff no.1, Sunder and Saran. Swami Nath's first wife died issueless . After her death Swamti Nath remarried Smt. Gujrati, defendant no.4 about 45 or 46 years ago. Smt. Gujrati's first marriage had taken place with Nand Gopal, sweet maker and she had given birth to three sons named Ram Das , Bhagwan Das and Sarjoo, defendant nos. 1 to 3 and a daughter, after marriage with Nand Gopal. Their daughter had died long ago. After death of Nand Gopal when Gujrati remarried with Swami Nath, her sons defendants no. 1 to 3, who were of very young age, came to the house of Swami Nath with their mother Gujrati. After marriage of Swami Nath with Gujrati, a daughter named Parwati, plaintiff no.2 was born. Swami Nath's brother Saran went to Bhama Bazar, and he died there. His Children are still residing at Bhama Bazar. Swami Nath and his brother Sunder continued the business of sweet maker, and they had good income, and out of that income Swami Nath purchased a house from Ram Samujh and Narain Bhuj on 25.6.1923 for Rs.365/-. After this purchase, he demolished a portion of the house and reconstructed the same in part Pucca and in part Khaprail posh and Swami Nath used to reside in that house alongwith Smt Gujrati and defendants no.1 to 3. Thereafter Swami Nath purchased another house on 21.6.1932 in his own name and in the name of his brother Sunder from Sumer Kunjara for Rs.485/- . It was closely adjacent to the aforesaid house purchased on 25.6.1923. This house was also reconstructed, and it was included with the aforesaid first house purchased in 1923. Now both these houses are in the shape of one house described in Schedule -A of the plaint. The defendants no. 2 and 3 left this house after taking another house on rent about 14 or 15 years ago but defendant no.1 Ram Das continued to reside with Swami Nath in the above house which is described in Schedule -A of the plaint . Thereafter Swami Nath purchased another house in his own name and in the name of Sunder in the year 1956. This house was adjacent to the District Hospital Basti and Swami Nath shifted to that house near the hospital alongwith his wife Gujrati. Swaminath's brother Saran died. He had no share in the disputed house. Sunder another brother of Swami Nath had not married and he died issueless in the year 1956. The entire share of Sunder was inherited by Swami Nath. Smt. Parwati gave birth to six sons named Parmatma Prasad, Lalji, Ram Ji, Ram Chandra, Ram Shanker and Bhagwati Prasad and two daughters named Tara Devi and Maya Devi. When Swami Nath started to reside in the house near District Hospital, he permitted defendant no.1 Ram Das to reside in the house described in schedule-A of the plaint as a licensee on a condition that whenever this house would be needed by Swami Nath, Ram Das will vacate it. Ram Das had purchased another house out of his own income near the house of Dr. Kamla Datt Tripathi and had reconstructed it Pucca. Swami Nath executed a Gift-deed of the disputed house described in schedule A of the plaint in favour of Smt. Parwati, plaintiff no.2 on 27.9.1960 and put her in possession of the house. Ram Das defendant no.1 got annoyed due to execution of the gift deed and so he took his mother Gujrati with him and got filed O.S. No. 22/62 in the court of Civil Judge Basti against Swami Nath and Parwati for maitenance alleging in the plaint that the house specified in schedule-A was purchased from the money of Smt. Gujrati. The suit was decreed in respect of maintenace of Rs.15/- per month and the remaining suit was dismissed. Thereafter Smt. Parwati and her husband Rangi Lal and children asked defendant no.1 Ram Das to vacate the above house but he did not do so. Thereafter a registered notice dated 12.11.1964 was served on defendant no.1 Ram Das, who in reply sent the envelope containing a blank paper in it. The licence granted in favour of defendant no.1 had been determined . There was an iron safe kept in the house in which original sale deeds and other papers of Municipal Board were kept. Its key was with Ram Das defendant no.1 who had taken all those documents in his possession and refused to return the safe to the plaintiffs, hence the plaintiffs filed this suit for eviction of defendant no.1 from the disputed house and for recovery of Rs.400/- being prices of the safe. The plaint of the suit after amendment in the valuation clause was reinstituted in the court of Civil Judge Basti in the year 1968 and then it was registered as O.S. No.27/68.
The defendant no.1 contested the suit . He admitted that the marriage of his mother Gujrati had taken place with Swami Nath. He, however, pleaded that the deceased Swami Nath and Parwati were not owner of the disputed house and actually this house was purchased by him and he was not residing in that house as a licensee. Swami Nath was an ordinary person and Smt. Gujrati was a very rich lady and so Swami Nath remarried Gujrati. Smt. Gujrati had taken much cash and golden ornaments with her to the house of Swami Nath at the time of her re-marriage and out of that money Swami Nath had purchased both the houses on 25.6.23 and 21.6.32. Both these houses were purchased for defendants no. 1 to 3 who were minor at that time and so Swami Nath and his brother were looking after the entire business. The names of Swami Nath and Sunder were entered in the aforesaid both sale deeds as Benami. Plaintiff and Smt. Gujrati never resided in these houses. They continued to reside in the rented house and when they took the house near District Hospital Basti, they started to reside in that house after remarriage of Swami Nath with Gujrati, and when some issues were born to Gujrati the love and affection of Swami Nath towards defendants no.1 to 3 decreased and then in the year 1933 or 1934 the defendant started to reside in the disputed house , thereafter a partition took place amongst the defendants no. 1 to 3 and defendant no. 2 and 3 after taking price of their share in the house left the disputed house and defendant no.1 alone continued to reside in it as its owner. Defendant no.1 was also running sweet shop and he had good income from that shop and then he reconstructed the house which he had purchased vide sale deed dated 25.6.23 and 21.6.32. The defendant no.1 reconstructed this house after obtaining permission from the Notified Area and got the plan sanctioned. Defendant no.1 deposited all taxes of the house and his name is also entered in the tax register. The names of Swami Nath and Sunder were entered in the old Municipal Register on the basis of sale deed in their favour but the tax of the house was always being deposited by the defendant no.1 in his own name. The defendant no.1 did not feel any necessity to get the names of Swami Nath and Sunder struck off from the Municipal record. Smt. Parwati was a woman of loose character, she developed illicit relation with Triloki and then she left her husband Rangi Lal and started to reside with Swami Nath and then she came in close contact of Triloki who is a very clever person . He also took Swami Nath under his influence and then on the basis of entries in the Municipal record in favour of Swami Nath and Sunder he got a fictitious Gift deed executed by Swami Nath in favour of Parwati . This Gift deed has got no effect upon the rights of defendant no.1.When Smt. Gujrati came to know about this Gift deed she quarreled with Swami Nath and Parwati then Swami Nath and Parvati forced her to leave his house and also snatched her ornaments etc. Being aggrieved with this Smt. Gujrati filed O.S. No. 22 of 1962 against Swami Nath for maintenance . The defendant no.1 had been residing in the disputed house as owner and he had been in its adverse possession for more than 12 years and thus he had become its owner and suit was barred by limitation. All the original documents of the house are with the defendant and so the plaintiff had developed a fictitious story of iron locker in the house . The defendant had incurred heavy expenses in the repairing and construction of the house within the knowledge of the plaintiff Swami Nath and he never objected at that time, and so the suit was barred by the principle of estoppel. The defendants no. 2 and 3 had no concern with this house and they had unnecessarily been impleaded. The Gift deed was under stamped as well as improperly registered . The defendant no.1 was not a licensee in the house . The plaintiffs' allegation that the defendant had sent a blank paper in reply to the notice is false. The plaintiffs' suit is under valued and the court fee paid is insufficient. The suit was bad for multifariousness.
The plaintiff Swami Nath died during the pendency of the suit then his name was deleted and Smt. Parwati continued as sole plaintiff. She also died during the pendency of the suit. Thereafter her husband Rangi Lal, and sons and daughters were impleaded as plaintiffs no. 1/1 to 1/9. Smt. Gujrati defendant no.4 and Sarjoo, defendant no.3 also died during the pendency of the suit. The name of Gujrati was deleted and heirs of Sarjoo were impleaded as defendants no.3/1 to 3/7. The remaining defendants supported the case of defendant no.1 in their written statement.
The following issues were framed in the suit :-
1. Whether Plaintiff no.1 was the owner of the house in suit and was competent to transfer and has transferred the same by gift deed dated 22.9.60 to plaintiff no. 2 ?
2. Whether defendant no.1 is licensee of the plaintiff and is liable to be evicted ?
3. Whether in two sale deeds dated 25.6.23 and 21.6.32, the name of plaintiff no.1 was fictitiously entered as benamidar and defendants no. 1 to 3 were real vendees of the said sale deeds and properties were purchased out of funds of defendants no. 1 and 2 provided by their mother Smt. Gujrati ?
4. Whether the defendant no.1 is in possession of house in suit as owner?
5. Whether defendant no.1 had been in possession of the house in suit as owner for more than 12 years and has perfected his title by adverse possession?
6. Whether the suit is barred by principle of estoppel ?
7. Whether gift deed dated 27.9.60 is ineffective and illegal as alleged in para 21 of the written statement?
8. Whether the defendant no.1 is in possession of safe in suit ? If so are the plaintiff entitled to its price or damages. If so, to what amount?
9. Is the suit bad for multifariousness ?
10. To what relief, if any, is the plaintiff entitled?
11. Whether the suit is undervalued and court fee paid is insufficient?
The learned Civil Judge ( Senior Division ) decided issue no.11 as preliminary issue and held that the suit should be valued at Rs.30,000/- and then the suit was accordingly valued and deficiency of court fee was made good. The suit was decided by Sri Parmeshwar, VI Additional District Judge, Basti. He took issues no. 2 to 5 together and held that the plaintiff No.1 Swami Nath was not benamidar but he was the owner of the house in dispute. He further held that there was no evidence to show that the defendant no.1 was the licensee and that his possession was that of licensee or permissive. He further held that there is no evidence on record to show that the defendant no.1 was a licensee in the house and further held that even if it is presumed that his possession was that of a licensee or permissive, the licence of the defendant came to an end in year 1951 and he had been living since then as trespasser .The present suit was filed in year 1965 and by that time the defendant no.1 had been in possession as owner for more than 12 years. He had perfected his title by adverse possession . He held on issue no.1 that since the defendant no.1 had become owner of the house by adverse possession and the plaintiff Swami Nath had not been residing in that house within 12 years of its construction, he ceased to be owner of that house and the Gift deed executed by him in favour of plaintiff no. 2 Parwati did not confer any title upon her. He held on issue no.6 that the suit was barred by estoppel. He also held on issue no.7 that the Gift deed was under stamped and so the Gift deed was invalid. He held on issue no.8 that no iron safe was kept by Swami Nath in the disputed house and so the plaintiffs were not entitled to the price of the iron safe. He held on issue no.9 that the suit was bad for multifariousness. He also held on issue no.10 that the plaintiffs were not entitled to any of the reliefs claimed . He, therefore, dismissed the suit. Being aggrieved by that judgment and decree the plaintiffs have filed the present appeal .
During the pendency of the present appeal the appellants. No. 1/1 Rangi Lal , � Parmatma Prasad, 1/6 Ram Shanker and defendants no.1 Ram Das and defendant no.2 Bhagwan Das also died . Their heirs have been substituted.
I have heard the learned counsel for both he parties and have perused the record.
It is to be seen that as per plaint allegations the disputed house specified in schedule -A of the plaint originally consisted of two houses out of whom one was purchased by Swami Nath from Ram Samujh and Narain Bhuj on 25.6.1923 for Rs.365/- vide a registered sale deed and another house was purchased by Swami Nath and his brother Sunder vide registered sale deed dated 21.6.1932 for Rs.485/-, and thereafter both these houses were jointly reconstructed by Swami Nath from his own income giving them shape of one house which has been described in schedule -A of the plaint. The plaintiff's case is that Sunder died issuless and so his share in the house vested in Swami Nath, and he gifted this house in favour of his daughter Parwati, plaintiff no.2 on 27.9.1960 vide a registered Gift deed, and thus the plaintiff no.2 became the owner of the disputed house as specified in Schedule -A. The case of the defendant no.1 Ram Das is that Swami Nath and his brother were poor persons and Gujarati Devi was a rich lady, and after her second marriage with Swami Nath she came to the house of Swami Nath with much ornaments and cash, and the aforesaid two houses were purchased by Swami Nath from the money of Smt.Gujarati, and aforesaid sale deeds in favour of Swami Nath and his brother Sunder were Benami transactions . The defendant no.1 further alleged that these houses were purchased for defendants no. 1 to 3 sons of Nand Gopal and that Swami Nath and his brother did not reside in these houses but they took another house near the sweet shop adjacent to the District Hospital and they resided in that house. Their allegations are that the defendants no. 2 and 3 left the disputed house after taking price of their share from defendant no.1, and defendant no.1 continued to reside in this house as its owner, and plaintiff no.1 had no right to gift this house to plaintiff no.2 and the Gift deed executed in favour of plaintiff no.2 is invalid.
It was further pleaded that even if the plaintiff no.1 is treated to be owner of the house on the basis of the sale deeds dated 25.6.1923 and 21.6.1932 in his favour , the defendant no.1 had completed his ownership by adverse possession of the house and so the plaintiffs' suit was barred by limitation . On the other hand, the plaintiff's case is that he had simply permitted the defendant no.1 to reside in the house as a licensee and so the defendant no.1 could not claim its ownership.
The learned A.D.J. has held on the basis of evidence that the plaintiff no.1 Swami Nath acquired ownership of the house vide registered sale deeds dated 25.6. 1923 and 21.6.1932 and that these houses were purchased by him out of his own income, and the allegation of defendant no.1 that these houses were purchased from the money of Smt. Gujarati Devi, and that the sale deeds in the name of Swami Nath and Sunder were benami was not approved. This finding of the learned A.D.J. has not been challenged by either party. The learned A.D.J. further held that there was no satisfactory evidence to prove the allegation of the plaintiff that the defendant no.1 was permitted by the plaintiff no.1 to reside in the house as a licensee. On the other hand he has held that there was sufficient evidence to this effect that the defendant was residing in the house in the capacity of its owner, and in any case he had acquired its ownership by adverse possession also, and so the plaintiff no.1 ceased to be its owner and he could not execute its Gift deed in favour of plaintiff no.2. This finding of the learned A.D.J. has been challenged by the learned counsel for the appellant.
Let me now consider on merit this finding of learned A.D.J.
First of all I take up the evidence which the plaintiff appellants produced in support of the allegation that the defendant no.1 was residing in the disputed house specified in schedule-A of the plaint as a licensee.
The plaintiff has produced Sri Rangi Lal as P.W. 1. He is son-in-law of Swami Nath and husband of Parwati. He has stated that the defendants were permitted to live in the disputed house with the permission of Swami Nath . However, in his cross examination he stated that he came into contact with Swami Nath after his marriage with Parwati and that the above permission to defendant no.1 to reside in the disputed house was not given in his presence. He further admitted that his marriage with Parwati had not taken place in the disputed house but it was solemnized in a rented house near the District Hospital where Swami Nath was residing with his wife Gujrati. He further admitted that the defendants had been living in the disputed house for a long time and Swami Nath had been residing in the house near the District Hospital for more than 20 to 30 years prior to execution of the Gift deed. It is to be seen that the Gift deed was executed in favour of Parwati by Swami Nath in year 1960, and according to the above statement of Rangi Lal( P.W. 1), the defendant no.1 had been in separate possession of the disputed house for more than 20 years by that time. Thus, the statement of Rangi Lal fails to prove that Swami Nath permitted the defendant no.1 to reside in the disputed house as a licensee.
The plaintiffs also examined Smt. Munakka as P.W. 2. She also admitted in the cross examination that she was not present when the licence was granted by Swami Nath to defendant no.1 for residing in the disputed house . Thus, her statement also fails to prove that Swami Nath had granted any licence to defendant no.1 to reside in the disputed house. P.W. 3 Triloki also stated that Ram Das defendant no.1 was residing in the disputed house with the permission of Swami Nath but he too is not an eye witness of the said permission.
Now, I take up the evidence led by the defendant no.1. Before taking up this evidence it may be pointed out that as per plaint allegations Swami Nath had purchased the disputed house vide two sale deeds dated 25.6.23 and 21.6.1932 but the Municipal assessment of these houses is in the name of defendant no.1 Ram Das since 1937-38 as is apparent from the assessment list of the Municipal record ( exhibit A-1 to A-3). The defendant no.1 had also been depositing house and water tax continuously as is apparent from the tax receipts exhibits A-10 to A-18 and A-113 to A-125 for the period from 1951-52 to 1976-77. The receipts of deposit of electricity charges are also in the name of Ram Das Halwai, defendant no.1 exhibit A-19 to A-37 and A-42 to A-112. These receipts are for the period from 1963 to 1978. All these documents go to show that the defendant no.1 had been residing in the house in dispute as its owner and he had obtained its assessment in his name in the year 1937 and had also been depositing its tax as well as electricity charges. All these facts go to show that even if the house was purchased by Swami Nath in his own name vide sale deeds dated 25.6.1923 and 21.6. 1932, the defendant no.1, who was his step son, had started to reside in the house as its owner denying the title of Swami Nath since 1937 and when no action was taken within a period of 12 years from the above date to oust him from the house, he apparently acquired the title to the house by adverse possession. The plaintiffs have alleged that Swami Nath had reconstructed the house after purchasing it vide the aforesaid two sale deeds, on the other hand the allegation of defendant no.1 is that he had reconstructed the house . The learned A.D.J. has pointed out in his judgment that if Swami Nath had reconstructed this house he would have resided in this house and would not have gone to reside in a rented house near District Hospital and thus the fact that Swami Nath after purchasing the above house left it for being used by Ram Das and that he (Swami Nath) started to reside in a rented house near the District Hospital falsifies his case that he had reconstructed the disputed house . The position, in this way, is that the learned A.D.J. has rightly held that the defendant no.1 had acquired title to the house by adverse possession for more than 12 years and the plaintiff's suit was barred by limitation.
Learned counsel for the plaintiffs cited before me the following rulings of Hon'ble Apex Court on the point of adverse possession :
AIR 1954 SC 758 (Sheodhari Rai Vs. Suraj Prasad Singh), AIR 1964 SC 1254 (S.M. Karim Vs. Bibi sakina), 1972 SSC 274(The State Bank of Travancore Vs. Aravindan Kunju Panicker & others), 2001(9) SCC 385(Bhura Mogiya & other Vs. Satish Pagariya & others), 2002(3) SCC 258 (Konda Lakshmana Bapuji Vs. Govt. of AP & others), 2003(7) SCC 481 (Deva (Dead) through LR's Vs. Sajjan Kumar (Dead) by LR's), 2004(1) SCC 551 (V. Rajeshwari (Smt) Vs. TC Saravanbava).
The learned counsel for the plaintiffs relying upon the above rulings of Hon'ble Supreme Court on the point of adverse possession contended that the defendant no.1 could not be treated to have acquired title to the house by his so called adverse possession .
I have carefully gone through the aforesaid rulings . It has been held in the aforesaid rulings of Hon'ble Apex Court that where possession of the defendant is permissive, it can not be held to be adverse, and there must be assertion of adverse title to the knowledge of true owner, and then only the adverse possession can be claimed . It is to be seen that in the present case the defendant no.1 got the disputed house assessed in his name in the year 1937-38. He has also been depositing the tax of the house as well as electricity bills and when his name had been recorded as owner of the house in the Municipal record it amounted to assertion of title in the house adverse to that of Swami Nath in whose name the sale deeds of the disputed houses were executed, and since Swami Nath did not take any action against Ram Das defendant no.1 within a period of 12 years from 1937 and the name of defendant no.1 remained recorded in the Municipal record as owner of the house, the defendant no.1 apparently acquired title by adverse possession . The suit is barred by limitation as held by the learned trial court. It is also to be seen that as against the documentary evidence of continuous regular deposit of house and water tax of the disputed house as well as its electricity bills by defendant no.1, there is nothing on record to show that Swami Nath plaintiff no.1 ever deposited the house and water tax, and the electricity bills and this fact again goes to show that Swami Nath never dealt with the disputed house as its owner.The above rulings do not render any help to the appellants.
Learned counsel for the appellant also referred to the following rulings on the point of permissive possession:
AIR 1979 Orissa 101(Surajbati Ram & another Vs. Dhani Ram & others), AIR 1977 ALLD, 458 (Ram Prasad Pandey Vs. Jag Mohan Lal Shukla ), AIR 1998 CAL. 59 (Dunlop India Ltd. Vs. T.K. Mukhopadhyay), 1980 ARC 502 (Sri Tej Bhan Madan Vs. II AdJ Allahabad & other), AIR 1974 PATNA 364 ( Jaikaran Singh Vs. Ram Agarwalla & others), AIR 1986 BOMBAY 359 (M/S Quality Cut Pieces & etc. Vs. M/s Laxmi & Co.), 1996 (7) SCC 555 (Joginder Singh & another Vs. Jogindero (Smt) & others), AIR 1987 BOMBAY 142 and AIR 1992 MP 303 (Gangaram Vs. The Municipal Counsel).
Learned counsel for the appellant, relying upon the above rulings on permissive possession of a tenant or licensee and applicability of Section 116 of the Evidence Act to such cases contended that the defendant no.1, who was granted licence to reside in the house, could not claim title by adverse possession and he was barred from claiming title from Swami Nath.
I have carefully gone through these rulings also . The legal position as provided under Section 116 of the Evidence Act and discussed in the above rulings is not disputed. But, the position in the present case is that there is no direct evidence on the point that Swami Nath had permitted the defendant no.1 to reside in the disputed house as a licensee, and on the basis of evidence the position is found to be just reverse, and so in the absence of any satisfactory evidence on the point to prove that defendant no.1 started to reside in the house as a licensee, the aforesaid rulings do not render any help to the appellants' case.
The position, in this way, is that the learned A.D.J. , therefore , rightly held that defendant no.1 had completed his title to the house by adverse possession and the suit filed by the plaintiffs was barred by limitation . There is no error in his findings on this point. I agree with his findings and confirm the same.
No other point was pressed before me by the either party. The appeal, in this way, has got no force and is liable to be dismissed with costs to the respondents.
The appeal is dismissed with costs to the respondents. The Judgment and decree dated 6.4.1981 passed by Sri Parmeshwar, learned VI Addl. District Judge, Basti in original suit No. 27 of 1968, Rangi Lal and others Vs. Ram Das and others, are confirmed.
Dated March , 2005
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