Banka vs Watuli RSA 145/22 29/09/23 [ Rakesh JJ ] [ HIMACHAL PRADESH HIGH COURT ]

Specific Relief Act Section 34 – Limitation Act Articles 64 and 65 – Issue with regard to ownership and possession of the suit land, particularly whether the defendant acquired ownership through adverse possession – Plaintiff asserts that the suit land was allotted to her father in a family partition, and she inherited exclusive ownership – Defendant claims to have purchased the land from the plaintiff’s father, Mainee, for a consideration and asserts ownership by way of adverse possession – Plea of adverse possession will not be available to defendant in absence of pleadings and proof regarding denial of title of real owner – Adverse possession was asserted by defendant for first time in September, 2013 – Suit was filed in May 2014 – Statutory period for acquisition of title on adverse possession was not completed – Moreover, title of plaintiff was not in dispute – Plea of adverse possession, not tenable – Furthermore, defendant had claimed to be in possession by way of an agreement to sell – Agreement to sell was not proved – Even agreement does not show that possession was delivered to the defendant pursuant to said agreement – Defendant had no right to retain possession – Order of First Appellate Court in granting decree of possession in favour of plaintiff held, proper.

Relevant Paras 

14. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
15. Plaintiff Watuli Devi admitted in her cross- examination that an orchard exists over the suit land which has been yielding crops for the last ten years. This orchard was raised by the defendant. It was submitted that the existence of the orchard is not in dispute; therefore, the plaintiff should have valued the suit land on the market value of the orchard. This submission is not acceptable. It was laid down by this Court in Niram Dass vs. Hirda Ram ILR 1975 HP 659 that the raising of the orchard is immaterial to determine the court fee and jurisdiction in a suit for possession of the vacant land. It was observed:
“8. The real question is whether the value of the land alone is to be considered for determining the value of the suit or regard must also be had to the value of the orchard. There is no dispute that the plaint in the suit

refers to the land only and the relief also relates to the land only. The orchard was planted by the petitioner soon after the land was gifted to him. Learned counsel for the petitioner relies on Shanti Prasad vs. Mahabir Singh(A.I.R. 1957 All. 402.), where a Full Bench of the Allahabad High Court has held that although the plaintiff had not claimed any relief in respect of the buildings and the garden in a suit for possession of land, and he is found entitled to the relief he has claimed, the defendant must either remove the buildings and do away with the garden in question or leave them as they are to be taken by the plaintiff along with the land. In the circumstances, it was laid down that the buildings and garden must be held to be affected by the relief sought within the meaning of the term used in Section 3 of the Suits Valuation Act. It was pointed out that even if the suit was deemed to be a suit for possession of land alone, as it involved a building or garden standing on it the market value of the building and the garden standing on the land was bound to be added to the value of the land in order to determine the value of the land itself. Reliance was placed on Rule 3 of the U. P. Suits Valuation Act, 1942. Now, this provision expressly lays down that in suits for possession of land, the value of the land for purposes of jurisdiction shall be determined by aggregating the value of the land and the market value of buildings or gardens situated thereon. The decision turned on the particular language of Rule 3 (e). Such a provision is absent in the Act before me. My attention has been drawn to Divisional Forest Officer, Sarahan Forest Division of Simla Forest Circle, Himachal Pradesh vs. Daut and Ors (A.I.R. 1968-S.C. 612.), but in that case, the definition of land included orchards standing thereon.
9. In Kewal Kishore vs. Hamad Ahmad Khan (A.I.R. 1959 Pun. 181) a Division Bench of the Punjab High Court held that in a suit for possession of land, on a part of which some buildings had been erected, the court fee payable in such a suit would not depend on the defence which mightbe raised but would be measured by the value of the land alone. In Durga Das vs. Nihal Chand (A.I.R. 1928 Lah. 852.), Jai Lal, J. held that in a suit for declaration, the market value of the land alone should be taken into consideration for determining the jurisdiction of the court and the amount of the court fee to be paid. It further observed that the plaintiffs claimed possession of the land and not of the building on the land.
10. It is said that different considerations arise when it is a case of land with trees thereon. It is urged that the case is entirely different from one of land on which a building has been constructed. It is pointed out, on the terms of Section 8 of the Transfer of Property Act that the definition of property means land and all things attached to the land. In my opinion, having regard to the scheme of Section 7 of the Court Fees Act such an inference is not easily possible. Section 7 (v) speaks separately of land houses and gardens. When a garden or orchard is the object of the suit, the suit must be valued accordingly. Where, however, it is a suit for land only, it is the land alone which must be valued.
11. I am of the opinion that in a case such as this, the value of the land for the purposes of court fee and jurisdiction should be taken to be in stricto sensu and cannot include the value of an orchard planted thereon.”

19. Thus, the plea that the plaintiff is not the exclusive owner of the suit land and the suit was bad for the non-joinder of other co-owners is not acceptable.
20. The plaintiff was recorded to be the co-owner of the suit land. It was laid down by this Court in Dharam Singh Vs. Jagdish AIR 2005 Himachal Pradesh 10 = 2005(1) Civil Court Cases 823 (HP) that a co-owner can always file a suit for recovery of the possession and such a suit is not bad for non-joinder of other co-owners. It was observed:-
“5. The question whether a co-sharer can institute and maintain a suit for possession against a trespasser in respect of the entire property irrespective of his share therein without impleading the other co-sharers is maintainable or not, came up before a Full Bench of the Patna High Court in Ram Niranjan Das v. Loknath Mandal,AIR 1970 Patna 1 and it was held that such a suit by a co- sharer without impleading the other co-sharers was maintainable and that a co-sharer can recover the possession of the entire land from a trespasser irrespective of his share therein.
6. A similar question also arose before the Full Bench of the Punjab and Haryana High Court in Ajmer Singh (deceased by L.R.’s) v. Shamsher Singh, AIR 1984 Punj and Har 58. Following the ratio laid down by the Full Bench of the Patna High Court, it was held that a suit by a co- sharer for possession against a trespasser without impleading the other co-sharers is maintainable and a decree for possession can be passed. I am in full agreement with the ratio laid down by the Full Bench of the Patna High Court as well as the Full Bench of Punjab and Haryana High Court. In view of the said ratio, learned Additional District Judge rightly held the suit to be maintainable and granted a decree for possession in favour of the plaintiff.”

25. A similar view was taken by this court in Sarvi Devi v. Ran Singh, 2012 SCC OnLine HP 8003 : (2012) 114 AIC 460 wherein
“13.In the present case, the respondent came in possession of suit land on the basis of agreement Ex. PA which was executory in nature. On the basis of Ex. PA no suit for specific performance or independent sale-deed was executed in favour of the respondent. The possession of respondent remained permissive since his entry over the suit land was under agreement Ex. PA. The two Courts below have not appreciated this vital question of law which has a bearing on the ultimate result of the case. The respondent in his statement has not stated even a word that he is in adverse possession of the suit land. This clinches point on adverse possession against the respondent. The learned District Judge has noticed Achal Reddy (supra) in the impugned judgment from another Journal, but he has not applied the law laid down by the Supreme Court in Achal Reddy properly. The impugned judgment and decree are not sustainable. The substantial question of law No. 1 is decided in favour of the appellants.”
26. Therefore, the plea of adverse possession will not be available to the defendant in the absence of the pleadings and proof regarding the denial of the title of the real owner.

_*Banka vs Watuli RSA 145/22 29/09/23 [ Rakesh JJ ] [ HIMACHAL PRADESH HIGH COURT ]

To read the judgment click here 

Banka Dei (since deceased) through her LRs Versus Watuli Devi  Court Judgment The Law Literates

All rights Reserved (Adv Vaibhav Tomar)