Suruna Bothra Associates v. Rakesh Motilal Sharma

15. Heard. Mr. Godbole, learned Senior Counsel for the Appellant and Mr. Anturkar, learned Senior Counsel for the Respondents.

16. Perused the impugned order, plaint, reply and documents filed by the parties. It is appears the plaintiffs while arguing their application for temporary injunction contended before the trial Court that for the purpose of disposal of application (Ex-5), Court need not to go into ingredients of adverse possession, other then “actual settled possession”, claimed by the plaintiffs over the suit property described in paragraph 1.3.

17. It may be stated that though plaintiffs are claiming possession over the suit property described in paragraph 1.[3] since August, 1997 i.e. a date on which Development Agreement was executed in their favour, but to say the Development Agreement dated 22nd August, 1997 and subsequent sale deed dated 26th December, 2012 was in respect of land described in paragraph 1.1. It is their case, that when Development Agreement was executed on 22nd August, 1997, possession of land described in paragraph 3.[3] was taken from erstwhile lessees. However, boundaries of land described in the Development Agreement dated 22nd August, 1997 do not even suggest or in the slighest degree, indicate that the plaintiffs were, also inducted in possession of property described in paragraph 3.3. Herein, plaintiffs would urge that his grand-father Girdharilal Sharma, after deriving development rights of the larger property described in paragraph 1.[1] constructed a massive compound wall in a year 1990, not only around the property described in paragraph 1.1, but also around the property ad-measuring 799.60 sq. mtrs., a part of Survey No. 579/1B. Even assuming Girdharilal Sharma, while constructing the boundary wall encompassed property described in paragraph 3.[3] and further assuming, he was in possession thereof, he ought to have describe ‘entire land’ (i.e. property 1.[1] + 1.3) in lease executed on 22nd August, 1997 in favour of plaintiffs. Thus, it is to be noted save and accept a bare and plain ‘statement’ of the plaintiffs, no other material has been brought on record to prima facie, establish their possession over the property described in paragraph 1.3.

18. The fact cannot be overlooked that in 1997, plaintiffs were not owners of the property described in paragraph 1.[1] of the plaint. Infact, they were empowered to develop the property described in paragraph 1.[1] of the plaint. Their postulation of possession over the property described in paragraph 1.[3] adversely since 1997, lends no credence, in absence of then owners, being impleaded as party defendants and such other evidence. Be that as it may, though since plaintiffs are claiming their “actual settled possession” over the property described in paragraph 3.3, however beyond the pleadings, there is no convincing evidence to prima facie accept their assertion of ‘settled possession’ over the property described in paragraph 3.3, on the date of which the suit was instituted. Settled possession means such possession over the property which has existed for a sufficiently long period of time and has been acquiesced to by the true owner.

19. Mr. Anturkar, learned Senior Counsel for the Respondents, would repeat, plaintiffs’ submission before the trial Court that for the purpose of disposal of application below exhibit – 5 i.e. temporary injunction, Court need not to go into ingredients of adverse possession, other then ‘actual settled possession’ claimed by the plaintiffs. Plaintiffs thus relied on the following circumstance and evidence to justify the order passed by the trial Court in their favour.

(i) Government Demarcation Certificate Map No. 1807/2016 produced at Exhibit – 17 at Serial No. 2. This certificate relates to measurement carried out by adjoining land owners. It shows disputed land described in paragraph 3.[3] is/was under the control ( वहीवाट ) of the plaintiffs. This certificate has been relied on by the learned trial Court to hold the ‘actual possession’ of the plaintiffs over the disputed land, for the reason that this, certificate was not challenged by the defendants, though it was drawn and issued in the year 2016. However, there is no evidence, to suggest, this measurement was carried out after notice to the defendants.

(ii) The next circumstance, is a police complaint dated 3rd September,

2020 filed by the defendants. Mr. Anturkar attempted to draw the inferences from the contents of the FIR, to submit that the defendants themselves have admitted the possession of the plaintiffs over the disputed land. The learned trial Court while dealing with this piece of evidence in paragraph no. 15 has held thus; “ So the very assertion of defendants in the police complaint dated 3rd September, 2020 that itself again compelling to infer that at somewhat extent the plaintiff is in control of the suit property in para 1.[3] of the plaint.” It is inferential circumstance.

(iii) The third circumstance relied on by the learned trial Court is ‘google image’ of the stone wall and demarcation map of Survey NO. 579/2. It appears, one Arhan Co-operative Housing Society had applied for demarcation for Survey No. 579/2 in the year 2012. The learned trial Court found the said demarcation map shows one wall existed while measurement was carried out in February, 2012. Relying on this Survey Map and Google images, the learned trial Court held that since defendants have not denied the existence of the wall shown in the Survey Map carried out in 2012, the defendants have directly and impliedly admitted the plaintiffs’ control over the disputed land inasmuch as of these documents were produced by the defendants themselves. It is also inferential circumstance.

20. The trial Court thus, relying upon the aforesaid documents produced by the defendants has held thus; “So considering the claim of plaintiff and all aforesaid factual aspect as discussed herein above, prima faciely, it reveals that the plaintiff is in control of property described in paragraph 1.2, 1.[3] of the plaint and having very much prima facie, case to claim equity against the defendants. Resultantly, the trial Court has granted injunction.” Thus, finding recorded is in about ‘control’ and not possession.

21. It may be stated that the plaintiffs have not brought positive evidence on record to establish their, “actual possession” over the property described in paragraph 1.3, but relied on survey maps and google images to claim their possession over the disputed land since

1997. A person, who asserts a possession over the particular property, is required to show that he is under settled or established possession of the said property. The Hon’ble Apex Court in the case of Unaram Vs. Motiram (2019) 11 SC 309 has held mere stray or intermittent acts of tress pass do not give such right against the true owner. Settled possession means such possession over the property which has existed for sufficiently long period of time and has been acquiesced too by the true owner. The casual act of possession does not have the effect of interrupting possession of the rightful owner. The settled act of trespass or a possession which has not matured into settled possession can be obstructed or removed by the true owner, even by using necessary force. Thus, settled possession must be;

(i) Effective,

(ii) Undisturbed

(iii) To the knowledge of the owner or without any concealment by the trespasser.

22. The Hon’ble Apex Court has also observed that merely on doubtful material and cursory evidence, it cannot be held that plaintiff was ever in possession of the property and that too in settled possession. The Court has laid down the following tests, which may adopted for working rule for determining the attributes of settled possession;

(i) That trespasser must be in ‘actual physical’ possession of the property over the sufficiently long period;

(ii) That possession must be to the knowledge (either expressed or employees) of the owner or without any attempt concealment by the trespasser;

23. As against the law laid down by the Apex Court in the aforesaid judgment, I have every reason to note that the material relied upon by the plaintiffs was a superficial and the nature of evidence was cursory, and does prima facie establish plaintiffs’ possession over land described in paragraph 1.[3] of the plaint.

24. Prima facie, pleadings submit and advance the fact that the plaintiffs, pre-deceased (Girdharilal Sharma), under the guise of ‘development rights’ described in paragraph 1.[1] of the plaint of property, constructed stone wall in 1990, not only around the land 1.1, but also land described in paragraph 1.3, of the plaint, without permission of the Competent Authority. Thus, noticeably this act was, nothing less then encroachment by Girdharilal Sharma. Now, plaintiffs are claiming possession of the disputed land through Girdharilal Sharma and seeking declaration of title. Thus, evidence sought to be pressed into service by the plaintiffs, asserting peaceful possession over the property described in paragraph 3.[3] of the plaint is traceable to ‘encroachment’ by Girdharilal Sharma, and therefore plaintiffs cannot seek injunction against the defendants/ true owner.

25. In the given set of facts, Mr. Godbole, learned Senior Counsel for the appellant has rightly relied on the judgment of the Hon’ble Apex Court in the case of Shivkumar Chadha Vs. Municipal Corporation of Delhi (1993) 3 SCC 161, where it was observed; “that injunction is discretionary and that, judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.”

26. Besides, it may be stated, the boundaries of land described in paragraph 1.1, 1.[2] and 1.[3] are not falling in line, with the documents relied on by the plaintiffs as referred above. Infact, the learned trial Court while accepting the plaintiffs’ possessory, claim over the disputed property relied on map M.R. No. 1807/2016. It shows the disputed land has merged with survey no. 579/1-B. Trial Court held, since the plaintiffs have not challenged the map, inferences is to be drawn that defendants were aware that the disputed land was in possession of the plaintiff since 2016. Second inference has been drawn from another survey map, which according to the plaintiffs show a stone wall. The learned trial Court has held, plaintiffs’ possession over the disputed land, simply because the defendants have not denied the existence of wall as shown in the map. Thus, the conclusion reached by the trial Court was based on ‘inferential process’ as noted above and further the inferences were drawn because survey maps were not challenged by the defendants. It is settled law that a person who claims his settled possession over the disputed property, is required to prima facie establish his possession by convincing evidence and therefore in absence of any such evidence, inferential process adopted by the learned trial Court, while prima facie holding plaintiffs control over the property described in paragraph 3.[3] was incorrect.

27. In the consideration of the aforesaid facts and for the reasons stated above, the appeal is partly allowed and hence the following order; O R D E R

(i) Order dated 24th November, 2020 passed below Exhibit – 5 in

Special Civil Suit No. 954/2020, restraining the Defendants from entering over the suit property described in paragraph no. 1.[3] of the plaint and interfering with the plaintiffs possession over it, is quashed and set aside.

(ii) Appeal is partly allowed and disposed of in the aforesaid terms.

28. After pronouncing this judgment, learned Counsel for the respondent (original plaintiff) requested this Court to continue interim stay since applicant intends to challenge the order of this Court before the Hon’ble Apex Court. However, in view of the facts of the case and for the reasons stated, request to stay the operation of the judgment and order is declined and accordingly rejected. (SANDEEP K. SHINDE, J). N A J E E B. Neeta