GAJINDER SINGH v. NAROTAM SINGH — 1995 DIGILAW 45 (HP)

JUDGMENT A. L. Vaidya, J.—S/Shri Narotam Singh and Bhupender Singh filed a suit for declaration to the effect that they and proforma defendant No. 12, Shri Parshottam Singh were owners in occupation as co-sharers of the suit land described in the plaint, while defendant Nos. 1 to 11 have got no right, title or interest in the suit land, who were alleged to be interfering in their possession. Hence, as a consequential relief permanent injunction was asked for. In the alternative, the plaintiffs prayed for the decree of possession. 2. The case put up by the plaintiffs in their plaint had been that one Shri Sham Lal was the owner in occupation of the suit land as a co-sharer. His share in the Khata comes out to be more than 7 kanals 5 marlas which was the area of the suit land. According to the plaintiffs, Sham Lal vide registered sale deed dated 28-1-1969 transferred the suit land in favour of the plaintiffs, who came to occupy the same and have been in occupation till the filing of the suit as owners. It was pleaded that defendant Nos. 1 to 11 never occupied the suit land on any occasion, neither they have any right to occupy the same. Plaintiffs also pleaded that the defendants pro claimed that at one time they were occupying this land as tenants and now would dispossess the plaintiffs and shall occupy the suit land, though they had no right whatsoever to do the same. It was also pleaded that in case the defendants tried to occupy the suit land, in that event, decree for pos session be granted in favour of the plaintiffs. The suit for declaration and injunction was filed on the basis of the aforesaid averments. 3. Defendant Nos. 1 to 11 preferred a joint written statement, wherein they took various preliminary objections. On merit, their simple case was that Sham Lal or other co-sharers never occupied the suit land. It was further pleaded that since June-July 1948, the contesting defendants have been in occupation of this land. It has been very specifically pleaded by these defendants that the suit land was given to them by Shri Sham Lal for cultivation and since then, they are in occupation of the same as owners. It was also pleaded that by way of adverse possession, they have become owners. It has been very specifically pleaded by these defendants that the suit land was given to them by Shri Sham Lal for cultivation and since then, they are in occupation of the same as owners. It was also pleaded that by way of adverse possession, they have become owners. According to them, plaintiffs never occupied the suit land. Other averments of the plaint were not admitted. 4. Parties were put to trial on the following issues by the trial Court :- 1. Whether the plaintiffs and defendant No. 12 are not in exclusive possession as co-sharers of the suit land ? OPD. 2. Whether the defendant Nos. 1 to 11 have become owners of the suit land by adverse possession ? OPD. 3. Whether the plaintiffs are estopped from filing the suit by their act and conduct? OPD. 4. Relief. The trial Court decided issue Nos. 1 and 2 in favour of the defendants and held that defendants were in adverse possession and their possession bad ripened into ownership. Issue No, 3 was decided against the defendants and the suit of the plaintiffs was dismissed. 5. The aforesaid judgment and decree were assailed in an appeal before the first appellate Court. The learned District Judge, after hearing the parties, accepted the appeal and set aside the judgment and decree of the trial Court and passed a decree of declaration to the effect that the plaintiffs and proforma defendant No. 12 were owners in possession of the suit land and defendant Nos. 1 to 11 were restrained not to interfere permanently in the possession of the plaintiffs over the suit land. 6. The aforesaid judgment and decree have been assailed by the defendants in the present appeal on various pleas. 7. I have heard the learned Counsel for the parties and have also minutely gone through the record. 8. The learned Counsel for the defendants has vehemently contended that the first appellate Court acted illegally in decreeing the suit, especially when the evidence on record established that the defendants had become owners of the suit land by way of adverse possession being more than 12 years. In order to appreciate this submission put forth on behalf of the appellants, the pleadings as well as the evidence has to be referred. 9. In order to appreciate this submission put forth on behalf of the appellants, the pleadings as well as the evidence has to be referred. 9. There is no dispute to the proportion that adverse possession is that possession which is peaceful, open and continuous and this possession is required to be adequate in continuity and in publicity. Not only that it must be actual, visible, exclusive, hostile and continuous for over the statutory period. The hostile character of the possession can be inferred by the animus of the person setting up adverse possession. Before a party can succeed in establishing his title on the basis of adverse possession, he must show on what day he came into possession and what was the period of such adverse possession, Thus, there must be clear assertion of hostile title, This possession must be to the knowledge of the owner, 10. At this stage, the pleading regarding the adverse possession can safely be referred. Defendant Nos. 1 to 11 in their joint written statement pleaded that Sham Lal or other co-sharers never occupied the suit land and further averred that in June-July 1948, they were in occupation of the said land which was given to them by Sham Lal for cultivation purposes and since then, they were in occupation of this land as owners. They also pleaded that Sham Lal did not object to their occupation and as such they have become owners by way of adverse possession. 11. I think the aforesaid pleadings even if accepted to be the truthful version, it will not on any score amount to an adverse possession. On the basis of these pleadings, it has been very specifically averred that Sham Lal, owner gave them this land for cultivation, meaning thereby that their occupation started with the permission of Sham Lal and such type of per missive possession will not come within the ambit of adverse possession at all. The animum for such a possession to be adverse is lacking in so far as the pleadings are concerned. Needless to say, a patty has to base the entire evidence on the ground of pleadings taken in the written statement. In this view of the matter, the evidence regarding adverse possession has to be ignored, especially when as per pleadings referred to above, the possession was a permissive one and not adverse. 12. Needless to say, a patty has to base the entire evidence on the ground of pleadings taken in the written statement. In this view of the matter, the evidence regarding adverse possession has to be ignored, especially when as per pleadings referred to above, the possession was a permissive one and not adverse. 12. The defendants further pleaded that the plaintiffs never occupied the suit land. Even if it is presumed to be correct as per pleadings of the plaintiffs if legally proved, they stepped into the shoes of Sham Lal and with that background even if for argument sake, defendants were found to be in occupation, their possession against the present plaintiffs would be presumed to be a permissive one and not at all adverse. Otherwise also, as per pleadings so far as Sham Lal was concerned, the possession against him could not be claimed as adverse as the defendants claim to occupy the suit land with the permission of Sham Lal and after the sale in favour of the plaintiffs and proforma defendant No. 12, the contesting defendants have not pleaded adverse possession against them. Even if it is to be inferred from their pleadings, it will not amount to have matured into ownership inasmuch as, according to the plaintiffs, they came to occupy this land on 28-1-1969 after the sale was registered in their favour by the owner Sham Lal. The suit was filed on 25 5-1973 well within 4/5 years of the said sale. In this view of the matter also on the basis of the pleadings, the plea of adverse possession as taken by the contesting defendants will not give them any relief whatsoever. 13. In the aforesaid background, the only point to be gone into is as to defendants have been able to prove their actual possession over the suit land or not In case, they are out of possession, the judgment and decree passed by the first appellate Court cannot be interfered. However, on the other hand, they are held to be in occupation, decree for possession will automatically follow as the suit is based upon title and defendants possession on the basis of the aforesaid pleas taken by them cannot be said to be adverse, more so to have matured into their ownership. However, on the other hand, they are held to be in occupation, decree for possession will automatically follow as the suit is based upon title and defendants possession on the basis of the aforesaid pleas taken by them cannot be said to be adverse, more so to have matured into their ownership. Otherwise also, as the evidence would be discussed, the adverse possession of the defendants has not at all been proved as has been rightly held by the first appellate Court. 14. Parties have brought on record entries pertaining to the suit land as existing in the record of right. Ext. P-l is the copy of Jamabandi for the year 1967-68 pertaining to suit land, wherein it has been recorded in the ownership of various co-sharers including Sham Lal also, while in occupation column to be in the exclusive possession of Sham Lal as a co-sharer. In the column of remarks, there is an entry that vide mutation No. 422 pertaining to the sale, Sham Lal has transferred half share in the suit land for a consideration of Rs 30,000 in favour of Narottam Singh and Bhupender Singh in equal share. There is another note that through mutation No 453, Narottam Singh has transferred the land in favour of Parshottam Singh by way of gift 335/3496 share. This mutation is reported to be under consideration. Ext. P-9—Ext. D-l9 is the copy of Jamabandi pertaining the suit land for the year 1972-73, wherein Bhupender Singh, Parshottam Singh and Narottam Singh as co-sharers have been recorded to be in actual occupation of the suit land Copies of khasra girdawari have also been filed which pertain to the year 1972-73 and 1976-77, wherein admittedly the plaintiffs and proforma defendant No. 12 have been recorded in occupation of the said land Parties have brought on record entries in the record of rights pertaining to suit land prior to 1967-68 which were for the year 1933-34, Ext. P-7, wherein Sham Lal has been recorded in occupation as co-sharer of the suit land. Ext P-12 is the copy of Rapat Roznamcha dated February 1, 1973 which recorded the factum of the land gifted in favour of Parshottam Singh by Narottam Singh through a registered deed dated 28-12-1972 Similarly, Ext. P-7, wherein Sham Lal has been recorded in occupation as co-sharer of the suit land. Ext P-12 is the copy of Rapat Roznamcha dated February 1, 1973 which recorded the factum of the land gifted in favour of Parshottam Singh by Narottam Singh through a registered deed dated 28-12-1972 Similarly, Ext. P-l3 is the copy of report Roznamcha dated 11-2-1969, wherein the report was made that Sham Lal through a registered sale deed had transferred the suit land in favour of Narottam Singh and Bhupender Singh for Rs. 30,000. 15. Thus, on the basis of the aforesaid entries in the record of right, prior to the sale in favour of the plaintiffs the suit land was recorded in actual occupation of Sham Lal as co-sharer which after the sale, had been recorded in actual occupation of the plaintiffs and proforma defendant No 12 in whose favour a share of the suit land was gifted as referred to above. 16. There is no dispute to the proposition that presumption of truth is attached to the entries in the latest record of right and in the. present case, as discussed above, those entries have been found to be in favour of plaintiffs and proforma defendant No. 12 and the contesting defendants have to rebut the same through legally competent evidence, 17. The defendants examined oral evidence to rebut these entries DW 1 is Bhagat Ram, who stated that Rattan Chand and his brothers were cultivating the suit land for the last forty years He further added that earlier Sham Lal was the owner of this land who has sold this land in favour of the plaintiffs. He also stated that Sham Lal never objected the cultivation of the land by the defendants. Neither, according to this witness, plaintiffs restrained them He further added that defendants were educated persons and were also in service. He stated that he was not owning any land in this village. According to him, Sham Lal never came to his house, but his family members were residing there and they have been looking after the land. 18. DW 2 is one Brahm Dass, who stated that since he attained the age of discretion, he saw the defendants cultivating the suit land. He added that be did not know who was the earlier owner. 18. DW 2 is one Brahm Dass, who stated that since he attained the age of discretion, he saw the defendants cultivating the suit land. He added that be did not know who was the earlier owner. He did not see the plaintiffs in occupation and he did not see Sham Lal residing in this village. This witness also stated that the land of the plaintiffs was situated adjacent to the suit land. He also added that he did not know in what capacity defendants were cultivating the suit land whether as owners or as tenants. DW 1 was the collateral of this witness. 19. DW 3 is one Damodar, who also stated that earlier Sham Lal was the owner of this land and the witness never saw him cultivating the suit land, According to him, Rattan Chand was cultivating the suit land and he had seen him doing so since he attained the age of discretion He also added that the plaintiffs never occupied the suit land. He stated that he was residing there since the time of his forefathers, but he was not owning any land there. He stated that the entire suit land was cultivable. He also stated that Sham Lal had given this land in favour of defendants and he had been taking rent from them. 20. DW 4 is one Shonda Ram. He gave a general statement regarding the occupation of the defendants. He further added that earlier Sham Lal was the owner, but he has never seen him in the village, This witness stated that he did not know whether the suit land was given to the defendants for cultivating or to their father. According to him, for the last 10-15 years, defendants were the owners of the suit land and entire land was cultivable. 21. Gajinder Singh, one of the defendant examined himself also, who stated that Sham Lal was the earlier owner of this land, who was residing towards Solan side. According to him, Sham Lal never came to his house and he never occupied this land and he also never objected to their possession. 21. Gajinder Singh, one of the defendant examined himself also, who stated that Sham Lal was the earlier owner of this land, who was residing towards Solan side. According to him, Sham Lal never came to his house and he never occupied this land and he also never objected to their possession. He stated that Sham Lal did not sell this land in their favour nor he inducted them as tenants He also stated that he did not know whether Sham Lal was co-sharer in this Khata, but they occupied this land as owners in his place since their forefathers 22. DW 5 is one Bakshi Ram, who stated that defendants were in cultivation of the same and he had been seeing them since the age of his discretion. He further added that he did not see Sham Lal, but disclosed that the land of Sham Lal was cultivated by one Shakti Chand. He admitted that Sham Lal was the owner of this land, but he disclosed his ignorance whether any litigation took place between Shakti Chand and Sham Lal He admitted that one of the defendant was the son of his paternal uncle. At this stage, Ext P-4 which is the certified copy of a decree-sheet dated 1-8-1972 can be safely referred According to this witness, one Shakti Chand was at one time cultivating the land for Sham Lal. This is a decree-sheet pertaining to the suit preferred by the present plaintiffs against Shakti Chand pertaining to some land which included the suit land also. In this suit, it was pleaded that the plaintiffs have purchased part of the suit land which was under khasra Nos. 439, 440 and 441 measuring 7 kanals 5 marlas and they were in occupation of the same and they asked for declaratory decree coupled with prohibitory decree against the defendants, who happened to be Shakti Chand, Amir Chand, Gian Chand and Ram Saran, sons of Gaaesha. The suit was compromised and on the basis of the same, it was decreed in favour of the plaintiffs. That means, on 1-8-1972, the civil court held the plaintiffs to be in occupation of the suit land as co-sharers. 23. The suit was compromised and on the basis of the same, it was decreed in favour of the plaintiffs. That means, on 1-8-1972, the civil court held the plaintiffs to be in occupation of the suit land as co-sharers. 23. DW 6 is one Kikar Singh, who stated that the land in dispute was cultivated by Rattan Chand and he had seen him cultivating through-out his life He further added that he did not know and he could not tell whether he was in occupation as owner or as tenant He disclosed that the disputed land was owned by Sham Lal and plaintiffs purchased the same from him. The witness could not tell whether Sham Lal sold his entire land or a part of that. He admitted that he was not owning any land in that tikka. 24. On the other hand, the plaintiffs examined three witnesses including Parsbottam Singh; proforma defendant. These witnesses have supported the case of the plaintiffs by deposing that after the sale in the year 1969, plaintiffs and defendant No. 12 came to occupy the suit land and they have been in actual occupation of the same. 25. From the aforesaid oral evidence, especially examined on behalf of the defendants, it cannot be said on any account that the defendants have been able to rebut the entries in the latest record of rights. The wit nesses have made statement in a most casual and general manner. Whatever they deposed even if believed to be so, it did not establish the adverse possession pleaded by the defendants. There is nothing in the statement of these witnesses which could conform to the legal requirement of proving the plea of adverse possession, One Gajinder Singh, defendant stated that earlier Sham Lal was the owner, who was residing towards Solan side, who never came to the suit land and he never occupied the same. This statement even if believed, will not prove adverse possession, especially when the possession of the defendants was without the know ledge of its owner. But this evidence goes against the pleadings as has already been detailed above. This witness stated that he did not purchase the land from Sham Lal neither they were inducted as tenants by Sham Lal. However, in the written statement the defendants stated that it was with the permission of Sham Lal that they occupied the suit land. 26. But this evidence goes against the pleadings as has already been detailed above. This witness stated that he did not purchase the land from Sham Lal neither they were inducted as tenants by Sham Lal. However, in the written statement the defendants stated that it was with the permission of Sham Lal that they occupied the suit land. 26. Regarding actual occupation over the suit land, the entries again have also not been rebutied. DW, Bhagat Ram made a general statement regarding the possession, but stated that the family members of Sham Lal were residing in the village and they were looking after the laud. In case defendants were actually occupying the land, where was the necessity of looking after the land of Sham Lal by his family members. This only reflected that possession of defendants could not be actual occupation as of right. But on the other hand, the family members of Sham Lal were looking after this land, meaning thereby that the possession remained with them. DW 2 Brahrn Dass made a general statement regarding the possession of the defendants over the suit land, but then stated that (ho land owned by the plaintiffs was situate adjacent to the suit land. There is nothing on record to suggest that some other land owned by the plaintiffs was situate adjacent to the suit land. Actually it was the suit land which was owned by the plaintiffs and with this background, the version given by this witness will not inspire confidence whatsoever, especially when he was not specific about the identity of the land in suit. Similarly, the other wit nesses examined cannot be of any help to the defendants, DW 3 stated that defendants were inducted as tenants on the suit land on payment of rent and Sham Lal had been taking rent from them. This is again not the case of the defendants at all. The version given by this witness regarding the occupation of the suit land by the defendants in the aforesaid context also cannot be relied upon. Some of the witnesses have stated that the entire but land was cultivable, but it is not so as is reflected from the entries in the record of right as part of it is shown as Gair Mazrua Khoretar measuring one kanal and 13 marlas. 27. Some of the witnesses have stated that the entire but land was cultivable, but it is not so as is reflected from the entries in the record of right as part of it is shown as Gair Mazrua Khoretar measuring one kanal and 13 marlas. 27. In the statement of Bakshi Ram, DW 5, it has come that Shakti Chand was cultivating the land of Sham Lal and some litigation took place between the plaintiffs and this Shakti Chand which is reflected from Ext. P-4 as discussed above which included the suit land also and through a decree the plaintiffs have been held to be co-sharers in occupation of the suit land also and a prohibitory injunction decree was passed against Shakti Chand and others on the basis of compromise. 28. The cumulative effect of the entire evidence examined during the trial only leads to the sole inference that defendants are out of possession and plaintiffs alongwith proforma defendant No. 12 have been in occupation of the suit land as co-sharers and so far as defendants were concerned, they have absolutely no right, title or interest to occupy the said land and the findings of the first appellate Court in this behalf require no interference which have been arrived at after correctly appreciating the law and evidence in this behalf 29. The learned Counsel for the appellants has tried to cite some case law which is not at all applicable to the facts of the case as have been fully discussed above. So far as the proposition of law is concerned, there is no dispute. But only dispute was pertaining to the appreciation of evidence examined by the parties, which has been fully detailed hereinabove. 30. In view of the foregoing reasons, I do not find any ground what soever to interfere with the judgment and decree passed by the first appellate Court and as a consequence, the present appeal is dismissed and the suit of the plaintiffs for declaration and permanent injunction stands decreed with costs Appeal dismissed.