LILAVATI v. SHYAM LAL — 1997 DIGILAW 386 (HP)

JUDGMENT P. K. Palli, J.:- Suit, filed by plaintiff-respondent, Shyam Lal stands decreed by the trial Court and the appeal, filed by the defendants stands dismissed. They are in second appeal before this Court. Parties hereinafter in this judgment shall be referred to as Plaintiff and Defendants. 2. The undisputed facts, as these emerge out from the reading of the impugned judgments and record, are that Shyam Lal plaintiff, was granted a piece of land, measuring 4-2-15 bighas under Nautor Rules under scheme for re-settlement of the oustees. The land was sanctioned in favour of the plaintiff on 16.12.1974 and possession was delivered to him on 11.1.1975. 3. Out of the above-said land 2.17.14 bighas bearing Khasra No.674/322 was recorded in ownership and possession of Kundal Lal and thereafter defendants, who are his heirs and successors. 4. Kundan Lal, predecessor-in-interest of the defendants, was also granted Patta under the same scheme on 10th December, 1968. Grant in his favour is Ex. PC. Defendants claim themselves to be the owners in possession ever since the date of the grant favoring Kundan Lal in 1968. 5. The plaintiff claims that ever-since the date he was put in possession of the suit land, he continued to occupy without any invasion on his right and to the knowledge of the defendants and has further perfected his title by way of adverse possession. According to the plaintiff, an enquiry was held by the Deputy Commissioner in the year 1986. On the complaint made by the defendants that the grant in his favour be rejected, but it was found that it is the plaintiff who is in possession and the defendants be allotted alternate site. 6. According to the defendants, the plaintiff got the allotment sanctioned in his favour in a clandestine manner and the matter went up to the level of the Financial Commissioner and vide order dated 11th November, 1988 the grant in favour of the plaintiff, was held to be illegal and void. 7. Learned counsel appearing for the defendants, Mr. G. D. Verma, is at pains to contend that the plaintiff has not raised proper pleas as were required under law to be pleaded for the purposes of claiming adverse possession over the suit land. 7. Learned counsel appearing for the defendants, Mr. G. D. Verma, is at pains to contend that the plaintiff has not raised proper pleas as were required under law to be pleaded for the purposes of claiming adverse possession over the suit land. The argument proceeds on the basis that once the plaintiff has based his claim under the Nautor Rules he cannot be permitted to claim ownership on the basis of adverse possession. 8. Mr. Verma further argued that un-disputedly the land stood sanctioned in favour of Kundan Lai on 10.12.1968 and Patta was subsequently issued in his favour in the year 1970. It is claimed that ever-since then the defendants have continued to be shown as owners in possession of the suit land all date end to further strengthen his argument, reliance is being placed on Jamabandi 1969-70, Ex. PW-7/A, Jamabandi 1974-75, Lx. DW-7/B, Girdavari entries up to 8th March, 1975. Ex. DW-7/C,Girdavari entries up to 29th March 1979, Ex. DW-7/D,Girdavari entries up to 12.4.1983, Ex.D-7/E, and Khasra Girdavari entries up to 1st October 1987, Ex. DW-7/F. 9. Mr. Verma has further brought to my notice, the mutation in favour of Kundal Lal sanctioned on 17th July, 1975, Ex. DW-7/H and the Nautor grant Ex. PW-7/A. 10. A perusal of the remarks column of Jamabandi Ex. DW-7/A of the year 1969-70, state3 that the grant of land in favour of the defendants is clearly indicated therein towards similar effect are the entries in Ex. DW-7/B, Jamabandi of the year 1974-75. 11. Stress is also placed on the remarks column of this Jamabandi, wherein it is recorded that the land cannot be alienated further, for a period of 15 years. The kind of soil is recorded as Barani. It may be noticed that prior to this entry the suit land is recorded as jungle. Mr. Verma proceeds, to contend that the change noted in respect of the kind of soil of the remarks column by itself shows that the defendants were in possession of it as owners. 12. It is also being highlighted by Mr. Verma that there was not a single piece from the revenue record in favour of the plaintiff projecting him to be the owner or in possession of the suit land. It is thus, sought to be argued that neither the plaintiff is owner nor in possession of the suit land. 13. Mr. 12. It is also being highlighted by Mr. Verma that there was not a single piece from the revenue record in favour of the plaintiff projecting him to be the owner or in possession of the suit land. It is thus, sought to be argued that neither the plaintiff is owner nor in possession of the suit land. 13. Mr. Verma further contends that in order to substantiate the plea of adverse possession, it was incumbent upon the plaintiff to plead in unequivocal terms that he accepts defendants to be the owners of the suit land and unless it is so pleaded a plea of adverse possession is not available to him. It is next argued that the claim of the plaintiff has been continuously contested by the defendants and the matter was pending before the Deputy Commissioner as well as the Financial Commissioner. He could not be permitted to claim title to the suit land by way of adverse possession. 14. At the cost of repetition, Mr. Verma has made reference to the plaint and the statement of the plaintiff wherein the plaintiff-no-where accepted the ownership of the defendants. In short, submissions being raised are mat any proof which it in consistency with the plea raised has not to be looked into. 15. It is further being highlighted that in the plaint the plaintiff has claimed his possession since December, 1974, whereas in-fact Roznamcha Ex.PW-7/A has been placed on record to show that the plaintiff was delivered possession of the suit land on 11th January, 1975. 16. Mr. Verma has further highlighted the order passed by the Financial Commissioner Ex. DA whish is at page- 44 of the record. It is sought to be contended that the Financial Commission on appreciation of the material, held that the second allotment could not be made in favour of Shyam Lal and the recommendation for review of the brief of the Divisional Commissioner was rejected. It is further argued that the Financial Commissioner had clearly held that the grant in favour of the plaintiff was illegal and void. 17. Mr. Verma also contends that the State of Himachal Pradesh, who panted the land first to the defendants and then to the plaintiff, was a necessary party and the suit could not proceed further in its absence. It is also being argued that the Rapat Roznamcha Ex. 17. Mr. Verma also contends that the State of Himachal Pradesh, who panted the land first to the defendants and then to the plaintiff, was a necessary party and the suit could not proceed further in its absence. It is also being argued that the Rapat Roznamcha Ex. PW-7/A is straight way liable to be rejected as no notice or opportunity was given to the defendants who were admittedly Recorded as owners in possession of the suit land in dispute. 18. Mr. Bhupender Gupta, learned counsel appearing for the plaintiff, in reply, argues that even if the second view is possible, the concurrent findings of facts are not open to challenge under Section 100 of the Code of Civil Procedure and it was not the function of this Court to re-appraise evidence unless the findings recorded are perverse. 19. Replying on merits, it is said that the plaintiff, in paras 6 and 7, has clearly pleaded the ingredients of adverse possession. According to the learned counsel the pleadings have to be read as a whole and not in piece- meal. It is urged by Mr. Gupta, that the land was allotted to the defendants for the poses of installation of machine. As the land remained un-utilized, the same s, consequently, allotted in favour of the plaintiff. 20. Mr. Gupta, further contends that it was been established on record that after allotment having been made in favour of the plaintiff on 16th November, 1974, vide Ex. PC the mutation was sanctioned in his favour on May, 1975, vide Ex. PB and the plaintiff was put in possession by the revenue agency on 11th January, 1975, vide Rapat Roznamcha, Ex. PW-7/A. Mr. Gupta, further proceeds to contend that there was no impediment in the way of the plaintiff to have taken possession of the suit land after its allotment and the delivery of possession vide a Roznamcha was only a formality. According to Mr. Gupta, the possession was delivered in presence of several respectable persons of the village and earlier to this so many enquires were held by the concerned officials and the plaintiff had been found in possession of the suit land and at one stage it was recommended that as the plaintiff is found to be in possession of the suit land, the defendants be allotted alternate site. 21. Mr. 21. Mr. Gupta, further contends that the plaintiff could not claim adverse possession against the State but could certainly claim title on the basis of adverse possession against the defendants to whom it was made clear as back as 1974 that he is not going to leave the land and did not oblige them when asked to leave the land in question, Mr. Gupta, further relies upon the observations and findings recorded by the Courts below in support of his submissions. 22. After hearing learned counsel for the parties at length and on careful examination of the impugned judgment and records find that there is no merit in this appeal. 23. A reading of the plaint does make out that the plaintiff has based the claim against the defendants on the basis of adverse possession and the ingredients of adverse possession have been pleaded by him. 24. The matter can be looked into from another angle also. Issue No.2 was praised respect of adverse possession as claimed by the plaintiff. Parties had led evidence on mis-issue, contested it and invited the findings from the courts. 25. Once the parties are alive to the matter in controversy and have further bed evidence on the point and have also argued the matter before the two courts it is too late in the day to contend in second appeal that proper ingredients of adverse possession were not pleaded by the plaintiff. In para 12(a) of the plaint it said that the plaintiff be granted decree that he is owner in possession of the suit land and even if the defendants are found to be the owners, then the ownership rights of the defendants stand extinguished by virtue of adverse possession of tin plaintiff. Again in para 7 of the plaint, it is said that the plaintiff is in possession of the suit land continuously and peacefully to the knowledge of Kundan Lal, deceased, as well as the defendants and if Kundan Lai and the defendants had been the owners of the suit land, their rights stand extinguished. 25. In the given situation, I am unable to agree with the arguments raised by the learned counsel for the defendants that the plaintiff had not admitted the defendants as owners of the suit land and the plaintiff could not be permitted to raise plea of adverse possession. 25. In the given situation, I am unable to agree with the arguments raised by the learned counsel for the defendants that the plaintiff had not admitted the defendants as owners of the suit land and the plaintiff could not be permitted to raise plea of adverse possession. It is, no doubt, true that the suit land came to be granted in favour of the defendants; predecessor- in-interest, Kundan Lal way back in the year 1968 vide Ex.PW-3/A. There is further, no doubt, that the entries forming record of rights records him and thereafter the defendants as owners in possession of the suit land. The question that calls for consideration is as to whether these entries project ground realities or are mere paper entries, which have been carried forward in routine? 26. The statement of the plaintiff, appearing as his own witness as PW-1, clearly makes out that he claims his right, title and interest over the suit land by way of adverse possession against the defendants. According to him, the defendants came to him in the year 1974, and told him to leave the land in question, but he asserted his title and did not oblige them by leaving the land. No evidence in rebuttal to this has been placed by the defendants on record. 27. After the land was allotted to the plaintiff on 16.11.1974, he is established to have been put in possession by the revenue Patwari and the copy of the Rapat Roznamcha in respect of the delivery of possession Ex. PW- 7/A dated 11th January, 1975 has been proved by the said Patwari, appearing as PW-7. 28. A perusal of the report reveals that in sequence of the orders for the delivery of possession he reached the spot, statement of the persons residing in die village were recorded alongwith statement of Shyam Lal, plaintiff and possession was delivered to him. 29. The defend ants appear to have woken up, for the first time, in the year 1986. The matter is said to have been reported to the Deputy Commissioner, Mandi, who got the enquiry made and it was found by him vide order dated 7th February, 1986, Ex. PD that Kundan Lal died and the land could not be utilized and subsequently, the land was sanctioned by the Land Acquisition Collector to Shyam Lal that is the plaintiff. PD that Kundan Lal died and the land could not be utilized and subsequently, the land was sanctioned by the Land Acquisition Collector to Shyam Lal that is the plaintiff. Widow of Kundan Lal Lilavati now defendant, had represented that the land, granted to her husband, has been allotted to some other person and sought intervention for restoration of the land in her favour. 30. The order further reveals that the Tehsildar, Saddar, was deputed to hold enquiry and he reported that the grantee Shyam Lal, has developed the land and has also raised an orchard which is in fruit bearing position. The Tehsildar had reported that alternate site be allotted from Khasra No.676/322/1 in exchange to the widow of the deceased and the land is reported to be free from any objection from the Gram Panchayat, state right holders, and no D.P.F. is reported to be coming up in the proposed land. 31. Vide Ex. PC, which is the order of the Land Acquisition Collector, the Kanoongo and the B.O. (Forests), has recommended the grant in favour of Shyam Lal. Admittedly, he is an oustee. The Nauter file of Shyam Lal was got scrutinized through the Kanoongo and after consulting the authorities as well as Gram Panchayat authorities. The order further reveals that the Kangoongo has reported that the persons living in the village have themselves applied for the grant of this land under the Nautor Rules and agreeing with the report of the Kanoongo, sanction was granted in favour of the plaintiff. 32. It would thus, be seen from the sequence of events that the defendants were fully aware of the title which the plaintiff had set up to which they contested also. The defendants cannot be permitted to derive any advantage from the order of the Financial Commissioner, whereby the allotment in favour f of the plaintiff was held to be illegal and void. Accepting it to be so, it was open for the State to take appropriate action against the plaintiff and the Financial Commissioner directed the Deputy Commissioner to hold enquiry and report as to how the second allotment of the land was made available to the plaintiff, Shyam Lal. A further direction was given to enquire about the persons who were responsible for the negligence and a case should be made -out against all those found guilty. 33. A further direction was given to enquire about the persons who were responsible for the negligence and a case should be made -out against all those found guilty. 33. At best, the allotment in favour of the plaintiff, as I look at the matter, appears not to have found favour with the concerned authorities, but the fact remains that he has continued in possession of the suit land initially granted to him under Nautor Rules, but, his possession was certainly adverse, open as well as hostile vis-a-vis the defendants. 34. Both the learned courts below have examined this issue in depth and the issue in respect of adverse possession stands correctly decided on the basis of correct appreciation of the record. 35. As I look at the judgment of the first appellate Court, I find that the issue, as to whether the State of Himachal Pradesh is a necessary party, was not pressed by the defendants-appellants, yet as the matter has been raised before me. I find that the dispute is between the plaintiff and the defendants. Vide order passed by the Financial Commissioner, the allotment in favour of the plaintiff has been held to be illegal and void. Interestingly and possibly correctly, the plaintiff has not laid challenge to the order passed by the Financial Commissioner nor any relief has been claimed by the plaintiff against the State. 36. In case the defendants had filed a suit claiming right, title and interest from the State, the impleading of the State as defendant was absolutely necessary. I thus, find that there is no substance in the argument raised and the some is rejected. 37. There is another important piece of evidence which cannot be lost light of. After recording evidence the trial Court inspected the site in order to find out the truth and ground realities. In the inspection report, there exists a Kotha which belongs to the plaintiff. It was also found that there were only almond trees and no trees of plum, guava and citrus as pleaded by the defendants. In a way the case set up by the defendants was found to be false. There is further mention in the inspection report that the suit land is well developed orchard and is within the well maintained gate leading to the house of the plaintiff. The orchard is said to be compact. 38. In a way the case set up by the defendants was found to be false. There is further mention in the inspection report that the suit land is well developed orchard and is within the well maintained gate leading to the house of the plaintiff. The orchard is said to be compact. 38. It has been conceded before me by the learned counsel for the parties that Kundan Lal died in the year 1975. It is, thus, not difficult to observe the Kundan Lal having died soon after the allotment was made in favour of the plaintiff, the defendants never felt bothered to assert their right, title and interest of the suit land till the year 1986 and permitted the plaintiff to ripen Ins adverse possession into one of the title. 39. In view of what has been said above, no case is made out for interference in second appeal by this court. The-impugned judgments appear to be just and proper and I have not been persuaded by the learned counsel for the defendants to take a different view of the matter than the one concurrently arrived at by the courts below. The appeal is, consequently, ordered to tot dismissed. Parties are left to bear their own costs.