1. This is a petition under Article 227 of the Constitution of India wherein the petitioner original respondent No.2 has challenged the order of learned Additional District Judge, Rajkot passed on 16.7.2011 in Miscellaneous Civil Appeal No.30 of 2011, whereby the petitioner defendant is directed to maintain status quo in respect of suit property being Plot No.46 of Revenue Survey No. 178 of Mota Mava, taluka and District: Rajkot till the final disposal of the suit.
2. It is the case of the petitioner that he is the owner of the suit land by virtue of a registered sale deed. It is the say of the petitioner that the respondent No.1, who is the original plaintiff has not produced any document to suggest as to how he came in the possession of the suit premises and yet the Court in its complete disregard in the ratio laid down by this Court in the case of Navalram Laxmidas Devmurari vs. Vijayaben Jayvantbhai Chavda reported in 1997(1) G.L.H.841 and in the case of Rukhiben vs. Kirit Kumar Kantilal Patel reported in 1997 (3) G.L.R. 2383, granted the order of status quo in favour of tress-passer, who gained unlawful possession as against the true owner.
3. To briefly state the facts, respondent No.1 plaintiff filed Regular Civil Suit No.68 of 2010 for declaration and injunction in respect of the suit property inter alia alleging that since last 50 years he is in adverse possession of the suit property.
Injunction application preferred by him stated that without following the due process of law, he cannot be evicted. Basing on his ration card, election card, birth certificate of the son as well as Panchnama of the suit premises, he sought injunction in his favour in relation to the total land admeasuring 3.28 gunthas leaving aside Harijan vas. It is the say of the present petitioner that the original owner Nanjibhai Santoki and Panchanbhai Patel after taking the permission of converting the land into non-agricultural land made the plotting. It is the say of the petitioner that after plot No.46 there is a private plot situated being No.47, where there is encroachment and which is shown to have been situated in Harijan vas and taking support of the very compound wall of Plot No.47, a small room is constructed between Plots Nos.46 and 47 where 75% portion of the room is in Plot No.47. It is the say of the petitioner that as per the plot, one Mr. Bhupendrabhai Sachdev purchased Plot No.47 and thereafter it was sold to one Shilaben and from her, the present petitioner had purchased the plot. This was done after the inspection carried out by the bank and basing on its report where the land is shown as an open land. By virtue of registered sale deed dated 18.7.2009, executed in favour of the present petitioner, purchase is made. According to the petitioner, the land was agricultural land till 2002 and thereafter, it was converted into non-agricultural land. It is absolutely wrong to say that for the past 50 years respondent No.1 has been in the settled possession. He has sought prayer to quash and set aside the impugned order.
4. It is the say of learned advocate Mrs. Sangeeta Pahwa that merely because there is a long possession, it does not become an adverse possession. She relied upon the following authorities:-
(1) Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan and Ors. reported in AIR 2009 SC 103.
(2) State of Haryana vs. Mukesh Kumar and others reported in (2011) 10 SCC 404.
5. The emphasis is also made to point out from the valuation report presented to the Central Bank of India wherein this land has been shown as an open land. An attempt is also made to compare the four boundaries mentioned in the plaint as well as those reflected in the registered sale deed in favour of the present petitioner, by the learned advocate for the petitioner that only for preferring this suit, some construction has been put otherwise, there was no construction much less possession of the present respondent No.1.
6. It appears from the record that the Court Commissioner carried out the Panchnama of the disputed premises and found a room in Plots No.46 and 47, and western side of the this plot is found open. Plot No.45 is also open and except this Kachha room, there is no other construction in Plot No.46. It further can be seen from the record that application for injunction of the respondent No.1 has been rejected by the trial Court on the ground that he could not produce any documentary evidence as claimed by him for showing his adverse possession for the past 50 years. The Court also noted that when the land was converted into non-agricultural land, this was shown to be an open plot and, therefore, it was wrong to say that he was having such possession for past many years. In his election card of 2007 address is of 70, Harijan vas, Motamawa, Taluka.Rajkot, Dist.Rajkot. In his plaint also, the same address has been reflected. Neither there is electrical connection nor is there any other document to suggest that he is paying any taxes. In short, the trial Court found that the original plaintiff respondent No.1 doe not appear to be in legal possession. However, in respect of Kachha room, as no utensils of his were found, injunction was denied.
7. When challenged before the appellate forum, the appellate Court felt that there was a room in existence at the time of filing of the suit and he had been dispossessed after disposal of application below Exh.5. Various documentary evidence have been brought on the record in the appeal to suggest the process of dispossession in the form of criminal complaint, photographs and newspaper. However, the Court felt that the possession is prima facie established and, therefore, there was an error on the part of the trial Court to hold that prima facie he could not establish his possession. The Appellate Court was also of the opinion that there was no application moved for amending the plaint and, therefore, the mandatory injunction could not be granted by the appellate Court. However, he was given a liberty to move an appropriate application for restoration of possession before the trial Court and the trial Court was directed to consider the same appropriately.
8. In the case of Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan and Ors. (supra) the Supreme Court has held that the plea of possession is not a pure question of law but is one of fact and law and, therefore, the person who claims adverse possession should show the date on which he came into possession, nature of his possession, whether the factum of possession is known to other party, the length of his possession and the fact that it was an open and undisturbed possession. It also further held that the person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. Here the Apex Court aggrieved by the law of adverse possession has held that the same defies the rational and is illogical and wholly disproportionate to oust an owner on the basis of inaction within limitation. The Apex Court in the case of Mahadeo Savlaram Shelke and others vs. Pune Municipal Corporation and another reported in (1995) 2 SCC 33, held that the plaintiff seeking injunction must show prima facie triable issue for granting injunction and same cannot be granted in favour of a person in unlawful possession.
9. Reliance is also placed on the judgment of the Apex Court in the case of State of Haryana vs. Mukesh Kumar and others reported in (2011) 10 SCC 404. In the said decision, the Apex Court had recommended the abolition of the law of adverse possession and in the alternative to make suitable amendment in the law of adverse possession which has been done on the rational that the right to property is now considered to be not only a constitutional or statutory right but also a human right. Human rights have already been considered in the realm of individual rights such as the right to health, right to livelihood, right to shelter and employment etc. But now human rights are much a part of the new dimension. Therefore, the Supreme Court opined that even the claim of adverse possession has to be read in that context. It held that the Government should protect the property of a citizen and not steal it and the law that currently stands, in fact, steals the property. Therefore, this law is recommended to be abolished and those who adversely possess land should compensate the title owners according to the prevalent market rate of the land or property in question. This has been suggested in the alternative for achieving some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period. The Court also felt that Parliament must seriously consider to abolish “bad faith” adverse possession i.e. adverse possession achieved through intentional trespassing. Adverse possession since allows tress passers to gain legal title to the land he has illegally possessed for 12 year, the Apex Court felt that it is baffling as to how 12 years of illegality can suddenly be converted to the legal title and this is treated as an out moded law. The time has come for the change as is clearly opined and recommended in the said decision.
10. It is lamented by the Apex Court that no party should be perfected, the title of the land by invoking the provision of adverse possession and grab the property of the citizen as that would amount to losing the faith of the citizen in the administration and the judiciary is also asked to place its stamp of approval on the conduct that the original Indian citizen found reprehensible.
11. This was done in the petition preferred by the State of Haryana, which filed a suit through the Superintendent of Police, Gurgaon seeking relief on declaration that it had adverse possession over huge parcel of land and, thereby restraining the the defendants from perpetually from interfering with the peaceful possession of the State. In case the facts are different and though law of adverse possession is found to be out moded law by the Apex Court, it has also gone to the extent of saying that this was a testament to the absurdity of the law and a black mark upon the justice system's legitimacy.
12. Accordingly to learned advocate Mr. Hardik Dave before the registered sale deed was effected in favour of the present petitioner, there was no public notice given. There was a Pakka house and respondent has been dispossessed. No interference is called for in the order as per his say.
13. Considering the peculiar facts before it, the fact remains that respondent No.1 herein who is the original plaintiff has based its suit on adverse possession, which is still a law on the statute book, the order impugned reveals that from the documentary evidence as well as from the Panchnama of the suit premises the possession of the plaintiff respondent No.1 was prima facie established. The Appellate Court permitted respondent No.1 to move an application for restoration and simultaneously it directed to expeditiously proceed with the suit and preferably to dispose of the same within 6 months. It further directed both the sides to maintain status quo of the Plot No.46 till the hearing and final disposal of the suit.
14. This application is preferred under Article 227 of the Constitution of India and, therefore, though powers of superintendence invoked by way of writ jurisdiction are very wide and akin to the appellate and revisional powers yet there are certain factors of law and well laid down decisions on this aspect. It is needed to be stated that there is no jurisdictional error nor gross illegality that could be pointed out by the petitioner, which would call for any interference.
15. Although from the record what is expected when such claim of possession is put-forth, as held by the Apex Court in Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan and Ors. (supra) is absent. The respondent does not appear to have established prima facie case in terms of length of possession, the nature of possession, and whether such possession was open and undisturbed. Particularly considering the report of the Bank as also considering the fact that various legal procedures were undertaken in respect of the suit land which changed hands thrice balance on both the sides needed to be struck. And yet the appellate Court having found the Kachha room in the premises, was of the opinion that without the due process of law and this plea of possession being the mixed question of law and fact, the recordance of evidence would be inevitable and, therefore, directed both the parties to maintain status quo, with further direction to expeditiously decide the matter preferably within 6 months. There is absolutely nothing illegal that could be pointed out from the said order. It does not reveal any miscarriage of justice nor any jurisdictional error and, therefore, no interference is called for.
16. The Trial Court is directed to adhere to the time limit in completing the trial as set out by the appellate Court.
17. This petition stands disposed of in the above terms. None of the observations made in the order of the appellate Court nor in this petition, shall influence the trial Court in deciding the case of the parties on merit.
Civil Application No. 2706 of 2012 in Special Civil Application No. 9190 of 2011 In view of the order passed in the main petition, no order is required to be passed in Civil Application and the same stands disposed of according.
( Ms. Sonia Gokani, J. ) sudhir