MAHINDER PAL Vs. PREM KUMAR

JUDGEMENT

(1.) THIS is plaintiffs' appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below holding that the plaintiff Atma Ram (represented by his legal representatives) is not entitled to the relief of declaration and permanent injunction in respect of the shop on the ground that he purchased the same from one Dhanpat Rai son of Ramji Dass who was allegedly recorded as owner in possession. When the area was purchased, it was open land and the plaintiff Atma Ram is alleged to have raised construction after purchase on 25.2.1988 and since then he is claimed to be owner in possession. In support of the findings, the Courts below have placed reliance on a copy of the judgment dated 21.12.1995 Ex. D-4 between Vishvesh Chand etc. v. Arjun etc. It is pertinent to mention that Vishvesh Chand etc. who were plaintiffs in the earlier suit were the vendors of the defendant-respondents, whereas Arjun, Gopal and Ved Parkash were the sons of Dhanpat Rai who are apparently vendors of the plaintiff-appellants. The sale-deed dated 25.2.1988 with regard to the same property was at the centre of controversy in the earlier litigation, where the son of the plaintiff Atma Ram was party. Both the Courts below have highlighted this fact. The findings categorically went against Dhanpat Rai who was the vendor of the plaintiff and the same read as under :-

(2.) IT is further appropriate to mention that one Sat Pal co-owner was also a party in the earlier litigation who remained unable to prove that he was a bona fide purchaser and similarly, plaintiff Atma Ram was also not held to be a bona fide purchaser. The aforementioned judgment was found to be equally binding on the plaintiff-appellants being co-owners. Both the Courts below rejected the argument advanced on behalf of plaintiff Atma Ram that earlier judgment and decree Exs. D-4 and D-6 were not binding on him as he was not party albeit his sons were. The basic reason given was that the plaintiff Atma Ram remained silent till the filing of the suit on 8.4.2000/10.4.2000 from which the instant appeal has arisen and the litigation was fought by another co-owner Sat Pal and son of the plaintiff - one Bhushan. The doctrine of estoppel by act and conduct has also been invoked against the plaintiff- appellants by the Courts below.

(3.) THE plea of adverse possession raised by the plaintiff-appellants would also not require any detailed consideration because the necessary ingredients constituting the proprietary rights by virtue of adverse possession have not been pleaded in the plaint. In this regard reliance has been rightly placed on the view taken by the Supreme Court in the case of Annasaheb Bapusaheb Patil v. Balwant Babusaheb Patil, 1995(2) RRR 370 (SC) : AIR 1995 SC 895. It has also been held that once the plea of ownership based on sale-deed has been raised, then the plea of adverse possession would be mutually destructive and inconsistent. In this regard reliance has been rightly placed on a judgment of Delhi High Court in the case of Ramakant Jain v. M.S. Jain, 1999(2) RCR(Civil) 685 (Delhi) : 1999(3) CCC 49 (Delhi). For the reasons stated above, this appeal fails and the same is dismissed. Appeal dismissed.