Summary
A charitable trust owning Khasra No. 4833 at Karnal sued for possession of shops built on it by the defendants, who claimed the property lay outside that khasra or was theirs by adverse possession. The trial court decreed the suit, but the first appellate court and the High Court non-suited the trust on the identity of the property, relying on a commissioner's report from an earlier suit that fixed no pucca points. The Supreme Court restored the decree, holding the concurrent findings perverse: the defendants' counsel had conceded that the site was in Khasra No. 4833, the defendants had sought correction of the khasra girdawari admitting possession of that khasra, an earlier commissioner's report with pucca points placed the shops on it, and their adverse possession plea presupposed the trust's title and had already failed in their own suit.
Issues
- Whether concurrent findings of the first appellate court and the High Court that the suit property was not part of Khasra No. 4833 could be sustained in the face of the defendants' admissions and an earlier local commissioner's report fixing the property on that khasra.
- Whether a plea of adverse possession, already rejected in the defendants' own earlier suit, could be re-agitated, and what it implies about ownership.
Provisions considered
- Section 100 and Order XXVI (local commissioner's report), Code of Civil Procedure, 1908The Supreme Court interfered with concurrent findings of fact as perverse, the courts below having relied on a vague commissioner's report without pucca points or khasra numbers while ignoring the defendants' admissions and an earlier report that measured Khasra No. 4833 with pucca points. (¶¶ 16, 22, 23)
Held
- The trust's ownership of Khasra No. 4833 was admitted and recorded even by the High Court and was not challenged; the only ground for non-suiting it was that the shops were not on that khasra, a finding that is perverse in light of the defendants' counsel conceding before the trial court that the site is part of Khasra No. 4833 and the defendants' application to the Tehsildar in 1993 seeking correction of the khasra girdawari on the footing that they possessed part of that khasra, on which correction was ordered. (¶¶ 17, 19, 22, 23)
- The local commissioner's report of 2 December 1978 in the defendants' earlier suit placed the property 434 feet beyond a nala without fixing pucca points, mentioning khasra numbers or noticing the earlier report of 19 January 1975 in the execution proceedings, which had marked pucca points and measured Khasra No. 4833 and placed the shops on it; the latter inspires confidence and the former does not. (¶¶ 13, 15, 16, 23)
- The defendants' plea of ownership by adverse possession presupposes that the trust owned the specific property in their possession, and that plea had already been decided against them in their own suit of 1981, which attained finality with only a decree restraining dispossession otherwise than in due course of law. (¶¶ 15, 18, 23)
Result
Appeals allowed; orders of the High Court dismissing the second appeals and review applications and the judgments and decrees of the lower appellate court set aside; judgments and decrees of the trial court in Suit Nos. 273 and 274 of 1989 decreeing possession in favour of the trust restored.