MANGAT RAI Vs. OM PARKASH AND OTHERS

JUDGEMENT

(1.) This is the defendants' second appeal, after the suit filed by the respondents-plaintiffs was decreed in their favour and the first appeal filed by the present appellant-defendant was dismissed by the learned Additional District Judge, Faridkot. The plaintiffs had sought a declaration to the effect that they are owners of the suit property and possession thereof be handed over to them by the defendant, upon a decree of mandatory injunction being issued to him in that regard by the Court.

(2.) As per the stand of the respondents-plaintiffs, in the plaint filed by them, the father of respondent-plaintiff No.1 (grand-father of plaintiff No.2) was one Jhanda Ram, a migrant from Pakistan in 1947, who was allotted the suit property, which is a building bearing no.B-III 182, Faridkot, in the year 1955, by the Custodian of evacuee property, though the conveyance deed was issued only on 26.05.1976, which was registered on 25.08.1976 and a mutation to that effect was incorporated in the record of the Municipal Committee, Faridkot. Jhanda Ram and his wife both having died, the plaintiffs shifted out of Faridkot, for their business at different places. It was averred in the plaint that they were having good relations with one (late) Vas Dev Vaid, who was their relative, whom the defendant approached for the use of the property as a godown, and was put in possession of the property, with the consent of the plaintiffs, which was a wholly permissive possession, with an assurance by the defendant that he would hand over the property to the plaintiffs as and when they demanded vacant possession thereof. The appellant-defendant, Mangat Rai, was also stated to be a migrant from Pakistan. However, upon him having refused to vacate the property, about a month prior to the filing of the suit, it was instituted on 09.11.2005.

(3.) Upon notice issued to him, the appellant-defendant filed his written statement, denying that Jhanda Ram was the owner of the suit property, further doubting the relationship of the plaintiffs with Jhanda Ram. He also denied that the property was allotted to Jhanda Ram in 1955, or that Jhanda Ram was a migrant from Pakistan. The issuance of the conveyance deed on 26.05.1976 and its registration on 25.08.1976 were also denied, further alleging that the conveyance deed, if any, was a forged and fabricated document, not relating to the suit property at all. The defendant further denied that he was settled in the suit property by Vas Dev Vaid, or that it was permissive possession, as Jhanda Ram and Vas Dev Vaid had no right or interest in it, Jhanda Ram in any case never having been in possession of the property. It was also further alleged that the suit property was in possession of the defendant for long and the electricity connection was also obtained by him as far back as on 31.05.1972. Thus, "as per the Government Notification", he was entitled to get proprietary rights on account of his long possession. Yet further, it was contended that he had applied to the Tehsildar (Sales), who had transferred the property in his name in the year 1996, on account of his long and continuous possession thereof, after the Tehsildar had made enquiries about such possession. It was stated that he was allowed to purchase the property, after a public notice was issued. A sale certificate was also issued in his favour by the Tehsildar, on 17.04.1997. Still further, it was averred that the defendant was regularly recorded as the owner in possession of the property in the house tax assessment register (of the Municipality). He was using the property as a store/godown for business and had rented it out to the partnership firm M/s Mangat Rai Vijay Kumar, "consisting of the answering respondents Vanit Kumar and Ramesh Kumar as partners". It was further contended that the partnership firm was a necessary party which had not been impleaded and consequently, the suit was bad for non-joinder. Lastly, on merits, it was contended that though Jhanda Ram did not have any right or interest in the suit property, however, even so, the answering defendant had become the owner of the suit property on account of his exclusive peaceful possession thereof, continuous and hostile, over a period of more than 35 years. As such, he had acquired a proprietary right by way of adverse possession and the rights and interests of Jhanda Ram and the plaintiffs, if any, stood extinguished. However, it was also contended that the plea of adverse possession was only being taken as an alternative plea which would not amount to acquiescence to the claim of the plaintiffs, as otherwise also, the defendant was a bona fide purchaser of the property for valuable consideration, without notice of defect in the title of his vendor, and as such, he was protected by Sec. 41 of the Transfer of Property Act.