LexHARI CHAND @ HARISH CHANDRA versus SHRI DAULAT RAM
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HARI CHAND @ HARISH CHANDRA
v.
SHRI DAULAT RAM
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OCTOBER 15, 1986
[A.P. SEN AND B.C. RAY, JJ.]
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Limitation Act, 1963-Article 142-Adverse possession-Plea
of-Existence of disputed wall with khaprail proved by defendent-
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~T Plaintiff to prove case of trespass and encroachment.
The appeliant instituted a suit for recovery of possession of the
disputed land after demolition of the unauthorised constructions made
thereon by the respondent alleging that he became owner of the land on
the basis of a registered sale deed, that he started to build a compound
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wall over and around his land after his purchase, that taking undue
advantage of his temporary absence the respondent wrongfully en-
croached and trespassed along the whole northern length of the land
and hurriedly raised a low mud wall and extended his khaprail thatch
over it.
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In his written statement the respondent denied that the appellant
was owner of the land and claimed that the wall and khaprail belonged
to him as they have been existing at their present site since time im-
memorial, that he had been regularly and openly enjoying the land and
that under s. 142 of the Limitation Act he became the absolute owner of
the land in question on the basis of adverse possession and he has a right of
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easement in the form of flowing of water from the tiled roof.
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The Additional Muusif dismissed the suit holding that the appel-
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Iant was the owner of the property and that he had failed to prove the
case of tr":'l'ass and encroachment.
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The appeal filed by the appellant was allowed by ~he Additional
Civil Judge holding that the respondent has failed to prove that the wall
in dispute and the khaprail existed for the last more than 12 years
before the suit, that even if respondent's wall and khaprail are old ones
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he is not entitled to maintain them afte1· the same was allotted in the
deed of partition dt. 3.3.58, and that the appellant is entitled to posses~
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1030
SUPREME COURT REPORTS
[!986) 3 S.C.R.
sion after demolition of the construction of the portion found en-
croached by respondent.
The second appeal filed by the respondent was dismissed by the
High Court and the judgment and decree of the lower Appellate Court
were affirmed. The respondent filed a review application alleging that
the partition deed dt. 17th March, 1963 was not in fact a deed of
partition bnt merely an agreement between the parties to partition the
property and there was no actual partition by metes and bounds and
that the respondent continued to remain co-owner and co-sharer of the
property in suit.
The High Court allowed the review application and held that the
mere allotment of shares by the said deed of partition did not amount to
partition by metes and bound~, set aside the judgment and decree of the
lower Appellate Court and dismissed the snit.
In the appeal to . this Court on behalf of the appellant it was
contended that the land in dispute was allotted to the vendor in accor-
dance with the deed of partition (Ext. 3/1) and shown in map (Ext. 3/2)
effected between the parties on 17.3.58 and this has been mentioned in
the sale:deed (Ext. I) and, therefore, the judgment and decree of the High
Court is not in accordance with law and should be set aside.
Dis~issing the appeal,
HELD: l. There is no pleading regarding the partition of the
property No. 164 nor there is any pleading to the effect that the dis-
puted mud wall with the khaprail on it was ever in possession of appel-
lant's vendor before the sale of the land in question in favour of the
appellant. [I034H; 1035A-B]
2. On a consideration of the evidence on record it is established
that the alleged encroachment by construction of kuchha wall and
khaprail overit is not a recent construction as alleged to have been
made in May 1961. On the other hand it is crystal clear from the
evidence of PW 1 and DW I that the disputed wall with khaprail existed
there on the disputed site for a long time i.e., 28 years before and the
wall and the khaprail have been affected by salt, as deposed by these
two witnesses. The Court Amin's report 57C also shows the said walls
and khaprail to be 25-30 years old in its present condition. The High
Conrt rightly came to the finding that though the partition deed was
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HAR! CHAND v. I?AULAT RAM {RAY,J.{
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executed by the parties yet there was no partition by metes and bExcerpt shown. Read the full judgment & AI analysis in Lexace.