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1991 DIGILAW 104 (HP)

MANGAT RAM v. LACHHMAN

1991-07-26

DEVINDER GUPTA

body1991
JUDGMENT Devinder Gupta, J.-The plaintiff has preferred this second appeal against the judgment and decree passed on May 14, 1982 by the District Judge, Una dismissing the plaintiffs appeal and thereby confirming the judgment and decree passed on June 7, 1978 by the Senior Sub-Judge, Una dismissing his suit. 2. On January 7, 1975, the plaintiff instituted a suit in the trial Court claiming decree for possession against the defendant-respondent. The plaintiff based his claim on the allegations that the suit property which is 6 marlas of land alongwith one residential house, cow-shed and courtyard was owned and possessed by Ram Chand who by means of a registered deed dated March 27, 1974 had created a mortgage with possession for Rs 300 in his favour. He was holding the property as mortgagee with possession but the defendants for the last 15 days had started creating trouble and interfering with his possession which had given rise to a cause of action to him for claiming a decree for injunction restraining the defendants from interfering with his peaceful possession as mortgagee. In the alternative he prayed that in case the defendants are found to have succeeded in forcibly dispossessing him a decree for possession be granted to him. The suit was resisted by the defendants who denied the title of Ram Chand and also denied the fact that Ram Chand could create a mortgage of the suit property in favour of the plaintiff. It was specifically pleaded by the defendants that there was a residential house and other construction standing upon the suit land belonging to them and they were in possession of the same since the time of their fore-fathers for the last more than 70 years. In para 8 of the written statement, the defendants pleaded that Ram Chand in connivance with the halqa patwari for the last few years appears to have incorrectly got entered his name as owner in possession in revenue records which entry was factually incorrect, illegal, arbitrary and without jurisdiction and was ineffective and in-operative against their rights. In any case it was pleaded that due to the defendants and their predecessors open, peaceful and uninterrupted possession for the last more than 60 years was in assertion of their rights as owners holding it adversely to the knowledge of all concerned and neither Ram Chand, nor the plaintiff had any title to the property. 3. In any case it was pleaded that due to the defendants and their predecessors open, peaceful and uninterrupted possession for the last more than 60 years was in assertion of their rights as owners holding it adversely to the knowledge of all concerned and neither Ram Chand, nor the plaintiff had any title to the property. 3. As stated earlier, the trial Court dismissed the plaintiffs suit holding that neither the plaintiff, nor Ram Chand was in occupation of the property and the defendants were in possession of the same since the year 1922-23 holding it adversely to the true owners Feeling aggrieved the defendants preferred an appeal before the lower appellate Court The finding recorded by the trial Court that defendants were in continuous possession of the suit property were upheld and on that basis the decree for dismissal of the suit was also affirmed. However, the lower appellate Court reversed the findings of fact recorded by the trial Court to the effect that possession of the defendants was adverse. Since the plaintiffs suit for injunction or in the alternative for possession stood dismissed, therefore, the instant appeal was preferred by him. 4. The main and primary ground urged in support of the appeal was that the lower appellate Court had come to the conclusion that the defendants possession was not adverse to the true owners namely, Ram Chand. As such he being mortgagee with possession, his suit which was based upon title and was covered by Article 65 of the Limitation Act, 1963 ought to have been decreed. 5. I have heard the learned Counsel for the parties and have also gone through the record. It has been contended on behalf of the appellant that since Article 65 of the limitation governs suits based upon title, therefore, in view of the findings recorded by the lower appellate Court that the defendants were not holding the property adversely, the appeal deserves to be allowed and the decree passed against the defendants especially when the defendants have failed to challenge such findings by either filing cross appeal or cross-objections under Order 41, Rule 22, C P. C. deserves to be reversed. It was further contended that findings recorded by the lower appellate Court that the defendants were not holding the property adversely were in consonance with law since the plea of adverse possession was not properly raised and the evidence adduced cannot be said to be sufficient enough to hold that the defendants were holding the property adversely. 6. In order to appreciate the argument addressed at the bar it will be necessary to refer to the pleadings of the parties as well as oral and documentary evidence. As observed above, on reading of the entire written statement particularly para 8 it can be found that what the defendants have alleged is that they and their predecessors have been in occupation of the suit property alongwith construction standing thereupon for the last more than 70 years and neither the plaintiff acquired any title nor Ram Chand has any subsisting title to the suit property due to their long and uninterrupted possession and even if it is proved that Ram Chand by executing a registered deed of mortgage created a mortgage with possession in favour of the plaintiff, the same is ineffective against the defendants since Ram Chand had no right to create any mortgage, The plaintiff never remained in occupation of the property and In any case the possession of the defendants and their predecessors of the last more than 70 years is adverse. Such a plea raised in the written statement is sufficient enough and it cannot be said that the defendants had not pleaded that they were not holding the property adversely to the true owners. The defendants have brought on record the entries in the revenue record with respect to the suit property since the year 1922-23. Ex. D-1 and Ex. D-2 are the copies of jamabandi for the years 1922-23 and 1926-27 respectively. Kodu and Dheru, predecessors of Ram Chand, are recorded as owners Musadi predecessor of the defendants-respondents is shown in occupation of the property, part of which is shown as cultivable. In the column of rent it is mentioned that the occupant is liable to pay one anna as rent. Kodu and Dheru, predecessors of Ram Chand, are recorded as owners Musadi predecessor of the defendants-respondents is shown in occupation of the property, part of which is shown as cultivable. In the column of rent it is mentioned that the occupant is liable to pay one anna as rent. Since it is neither the case of the plaintiff nor that of the defendants that Musadi was holding the property as a tenant, therefore, the mere fact that in column of rent there is an entry showing the occupant to be liable to pay one anna as rent annually, it cannot be said that the property was held by Musadi as a tenant It is also not the case of the plaintiff or of Ram Chand who appeared as PW 2 that Musadi was holding the property with permission. Ex. D-3 is a copy of Jamabandi for 1934-35. Nanak Chand, father of the plaintiff, alongwith others is shown to be the owner whereas the predecessors of the defendants are shown in occupation The eotry in the column of rent is "Mia lagan ba-wajah abadi". Ex. D-4 to Ex. D-8 are Jamabandis for the period 1938-39 to 1955-56. The entries in the column of ownership and possession are the same However, in the column of rent, the entry is "bila lagan ba-wajah gair majrua". The true import of the entry in the column of rent would be that the occupant is holding the property and has raised construction upon 6 marlas of land. The entry in the Jamabandis Exs. D-3 to D-8 is "gair mumkin abadi". On interpretation of the entry appearing in Column No 5 and 9 it can be said that the person recorded in occupation of the property was not paying any rent to the owner, in other words, the person recorded la occupation was neither claiming the construction to be belonging to owners nor they were holding the property with permission but were holding the same in assertion of their right of having raised the construction Ex. D-9 is copy of Jamabandi for the year 1960-61. There is a change in the column of cultivation. Ram Chand is shown to be the owner in the column of cultivation. The entry is "khudkasht". How and in what manner the name of the predecessor of the defendants was removed cannot be ascertained from any document placed on the record. D-9 is copy of Jamabandi for the year 1960-61. There is a change in the column of cultivation. Ram Chand is shown to be the owner in the column of cultivation. The entry is "khudkasht". How and in what manner the name of the predecessor of the defendants was removed cannot be ascertained from any document placed on the record. The subsequent entries Ess. D-10 andD-ilfor 1965-66 and 1970-71 respectively also record Ram Chand to be the owner and in occupation of the property. The nature of the property is recorded as "abadi". Ex. D-I2 is an extract from the crop inspection register (khasra girdawari) for the period from kharif 1974 to rabi 1975 and Ex. D-13 for the period from kharif 1973 to kharif 1976. There is a change in rabi 1975 on the basis of a report No. 275, the name of Kartara son of Rakha and Lachhman son of Musadi is shown in occupation of the property. These two persons are defendants-respondents 4 and i respectively. It was argued by the learned Counsel for the appellant that presumption of truth is attached to the latest entry in the revenue record and since in Ex. D-11 (Jamabandi for 1970-71) which is the latest copy of the entries in revenue record, it has to be presumed that Ram Chand was owner and in occupation of the property. In view of this presumption no reliance can be placed on the earlier entries in the revenue record. No doubt, presumption of truth is .attached to the latest entries in the revenue record but it is also equally true that when there is a conflict in the earlier and later entries in the revenue record and there is no material placed on record, justifying the change, presumption attached to the latest entries stands automatically rebutted and the earlier entries have to be presumed to be true. (See : Durga and others v. Milkhi Ram and others, !969 PLJ 105). From 1920-23 till 1946-47, the predecessor of defendants were shown to be in occupation of the property. It was incumbent upon the appellant to have placed on record material justifying change which occurred in the year 1950-51 and in the absence of such material, no reliance can be placed upon the entries in Exs. D-7 to D-11. There is no significant change in Ex. It was incumbent upon the appellant to have placed on record material justifying change which occurred in the year 1950-51 and in the absence of such material, no reliance can be placed upon the entries in Exs. D-7 to D-11. There is no significant change in Ex. D-l to Ex D-6 except in the column of rent. Till 1926-27, the occupant was liable to pay rent at the rate of one anna per annum whereas in Ex. D-3 to Ex D-6 by deleting such entry, it was mentioned that the occupants were holding the property in assertion of their right having raised construction thereupon. 7. Adverting to the oral evidence, PW 1 Durga Dass during his cross-examination has admitted that the defendants have their construction standing upon the suit property for the last 60 to 70 years. Ram Chand who is recorded as owner in the revenue record and who created mortgage in favour of the plaintiff appeared as PW 2. It appears that in view of the entries in the revenue record as well as the statement of PW 1 wherein he has admitted the defendants possession for the last 60-70 years, this witness has to admit the fact that the defendants residential construction was on the suit land. In the same breath he described such a possession of the defendants with the permission of Mangat Ram, plaintiff The plaintiff appeared as PW 3 who made out a totally new case by stating that for the last 3 months the defendants were in occupation of the property with his permission and that they were not vacating the same despite request. It is admitted by him that there are residential house standing upon the land. He has also stated that he handed over the possession of the property to the defendants without any writing PW 4 also admitted the defendants to be in possession of the property. From the evidence adduced by the parties, another fact which is apparent is that Ram Chand belongs to Rajput community whereas the defendants are Kumhars The suit property is located adjacent to the abadi of other Kumhars of the village. From the oral and documentary evidence and in view of concurrent findings of fact it has to be held that the defendants and their predecessors are in continuous possession of the property. From the oral and documentary evidence and in view of concurrent findings of fact it has to be held that the defendants and their predecessors are in continuous possession of the property. The only question which survives is as to whether such possession of the defendants can be held to be adverse to the true owner. In view of the facts and circumstances, to my mind, there is no manner of doubt that such possession of the defendants is adverse. Adverse possession means possession of land or an interest in the land by a wrong man against the will of the right man who is owner of the land or interest in the land. Adverse possession, therefore, as its words implies must be actual possession of the owners land with intention to hold it and claim it as his own to the exclusion of rightful owner. It must be actual, open, notorious, hostile, and claimed as of right, continuous and exclusive and also maintained for the statutory period to enable the wrong doer to acquire title by prescription. The mere possession, however, long does not necessarily mean that it was adverse to true owner. In para 5 of its report the Supreme Court in S. M. Karim v. Mst Bibt Sakina, AIR 19.4 SC U54 has observed as under i “......Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession become adverse, if it at all did, and a mere suggestion in the relief clause that there was an un-interrupted possession of "several 12 years" or that the plaintiff had acquired «8an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea....,." 8. The defendants in their written statement clearly stated that they and their predecessors had their abadi over the suit property which was in their and their predecessors occupation for the last more than 70 years and they were holding the same adversely. The defendants in their written statement clearly stated that they and their predecessors had their abadi over the suit property which was in their and their predecessors occupation for the last more than 70 years and they were holding the same adversely. This plea coupled with denial of plaintiff claim on merits amounts to taking up plea of adverse possession and to resist the Plaintiff suit based upon title The entry in jamabandi for the year 1934-35 Ex. D-3 till 1946-47 Ex, D-7 shows that the predecessors of the defendants were in occupation of the property by virtue of having raised construction thereupon The construction, as per the oral evidence especially PW 1 who is a witness produced by the plaintiff, is in existence since the time of the predecessors of the defendants and was raised by them. No case was made out in the pleadings by the plaintiff that such a possession of the defendants was permissive one. The nature of the land which was earlier partly Abadi and partly cultivable is also shown to have changed in 1934-35 when entire land is shown as Abadi. It has to be held, therefore, that this possession was by a person who was not the owner thereof in assertion of his right as owner and he was holding it adversely to the owner having raised construction thereupon. There is nothing on record to suggest that Ram Chand was ever inoccupation of the property or he delivered its actual possession to the plaintiff at the time of creating mortgage. The case set up by him during evidence that it was for the last 3 months that the defendants were permitted to occupy the property cannot be accepted- The pleas raised in the written statement coupled with the entries in the revenue record and the fact that a residential houses of the defendants are located on the land which were raised by them and also the fact that the defendants are not accepting Ram Chand to be the owner is nothing but amounts to hold the property adversely since 1922-23. In view of this, findings recorded by the lower appellate Court that such continuous possession was not adverse cannot be sustained. The possession of defendants was definitely open, peaceful, uninterrupted to the knowledge of all concerned and with intention to hold it adversely to the true owner. 9. In view of this, findings recorded by the lower appellate Court that such continuous possession was not adverse cannot be sustained. The possession of defendants was definitely open, peaceful, uninterrupted to the knowledge of all concerned and with intention to hold it adversely to the true owner. 9. Irrespective of the findings recorded by the lower appellate court the suit of the plaintiff had been dismissed. It is this decree of dismissal of the suit which is under challenge. The submission of the learned Counsel for the appellant that in the absence of there being any cross-objections, the defendants cannot be urged to challenge such findings. This submission has been made merely to be rejected. After the amendment in the Code of Civil Procedure by the Code of Civil Procedure Amendment Act, 1976, Rule 22 of Order 41 also stands considerably amended* The amended Rule 22 gives two distinct rights to a respondents in appeal. The first is the right of upholding the decree of the court below on any ground on which that court decided against him aad the second right is that of taking cross-objections to the decree which the respondent might have taken by way of appeal. In the first case, the respondent can support the decree and in the second case he attacks the decree By dismissal of the appeal of the plaintiff the lower appellate Court affirmed the decree of the trial Court of dismissal of his suit. There is no decree against the defendants-respondents. The defendants-respondents by urging that their continuous possession is adverse are not doing anything except supporting the decree of dismissal of the suit which they can do without filing objections 10. As a result, there is no merit in the appeal which is dismissed with costs. Appeal dismissed.