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2000 DIGILAW 276 (HP)

MOHINDER SINGH v. CHARAN DASS

2000-10-06

KAMLESH SHARMA

body2000
JUDGMENT Kamlesh Sharma, J: - The predecessor in interest of pro-forma respondent’s No. 2 to 4 and proforma respondent’s No. 5 and 6 were the plaintiffs, whereas, respondent No.l was the defendant and proforma respondents No. 7 and 8 were the proforma defendants and they will be referred to as such in this judgment. During the pendency of the appeal before the first appellate court the plaintiffs and proforma defendants sold the land in dispute in favour of the present appellants by way of registered sale deed for valuable consideration of Rs.50, 000/- only on 10.4.1992. Though, no formal permission has been sought or granted to the appellants to file the present appeal, yet in the absence of any objection by the plaintiffs or the defendant, the appellants are held entitled to maintain the present appeal as they have stepped into the shoes of the original plaintiffs. The land in dispute is measuring 27-2 bighas comprised in khasra Nos. 20,21 and 22 situated in Chak Kui, Tehsil Rehru, District Shimla. 2. The appellants are aggrieved by the decree and judgment dated 22.6.1992 whereby the appeal of the defendant was partly accepted and decree and judgment dated 7.7.1987 of the trial court was set aside to the extent that the plaintiffs were in possession of the land in dispute and were entitled to a decree for permanent prohibitory injunction against the defendant. According to the first appellate Court, the plaintiffs have not been in possession of the land in dispute and not entitled to decree for permanent prohibitory injunction as prayed for. However, both the courts below have concurrently found the plaintiffs as owners of the land in dispute. Hence, the present regular second appeal. 3. This appeal was earlier allowed and the impugned decree and judgment of the first appellate court was set aside by judgment dated 13.10.1998, which was assailed by the defendant by filing S.L.P. before the Supreme court, which was granted and the following order was passed in the appeal:- "The short question that arises in this case is whether the High Court was justified in deciding the Second Appeal under Section 100 CPC without framing the substantial question of law. This Court in more than one occasion has held that the High court acquires jurisdiction to decide the Second Appeal only when it frames substantial question of law. This Court in more than one occasion has held that the High court acquires jurisdiction to decide the Second Appeal only when it frames substantial question of law. In this case we find that the High Court has not framed any substantial question of law while deciding the matter. This is a sufficient ground to set aside the order and judgment under appeal. We order accordingly. The case is sent back to High court for deciding the same after framing the question of law if it arises in the case. The appeal is allowed. There shall be no order as to costs." 4. This Court has heard learned counsel for the parties and gone through the record. It finds that at the time of admission on 30.10.1992 the following substantial question of law was framed:- "Whether the lower appellate Court ought to have decreed the suit of the plaintiff who had valid title to the suit property when the plea of the defendant of being in possession and perfected his title on account of adverse possession has been negatived by the lower learned Appellate court?" 5. It is not in dispute that both the Courts below have concurrently held the plaintiffs as owners of the land in dispute on the basis of Missal Haquiat Jadid Ex. PE-PB and Jamabandi for the year 1974-75 Ex.PC, wherein they have been shown as owners in possession. The trial Court on correct reading and interpretation of these documents and order dated 27.6.1984 Ex.PD of the Asstt. Collector II Grade (Settlement), which stood affirmed by the Collector (Settlement) by his order Ex.PA, has held the plaintiffs in possession. By order dated 27.6.1984 the Assistant Collector II Grade had rejected the application of the defendant for correction of revenue entries holding that the land is Banjar Kadim and unfit for cultivation having large number of trees on it and surrounded by demarcated forest. Upholding this order, the Collector had further observed that if the landowners are absentee landowners it does not mean that their land should be occupied by anyone who finds the opportunity to do so and the claim of possession of the defendant was rejected. 6. For upsetting the findings of the trial court in respect of the possession of the plaintiffs, the first appellate court has mis-read and misinterpreted the Missal Haquiat Jadid Ex. 6. For upsetting the findings of the trial court in respect of the possession of the plaintiffs, the first appellate court has mis-read and misinterpreted the Missal Haquiat Jadid Ex. PE to the extent that the land in dispute is described as Demarcated Protected Forest at the top of it as well as in Columns 1 and 2. The perusal of this document shows that in fact in the title against the column village (Mauja) the words D.P.F. Kui Awal are mentioned and same words are repeated below columns 1 and 2 but these are of no effect as the nature of the land in dispute is mentioned as Banjar Kadim under column 9, which pertains to area and kind of land. The first appellate Court has rejected the entries of self-cultivation in these documents by saying it as symbolic for the reason that the plaintiffs are not doing any overt-act on the spot as to indicate their physical possession, which is not correct, as it is well known that the possession of the Banjar Kadim land is that of the owner. In Rakhal Chandra Chose & Ors. v. Durgadas Samanta & Ors. AIR 1922 Calcutta 557, it is held at page 566 in column II:- "Now where definite evidence of acts of possession is forthcoming there is no difference between the proof of possession in the case of jungle, waste or uncultivated land and in that of cultivated lands. In Rakhal Chandra Chose & Ors. v. Durgadas Samanta & Ors. AIR 1922 Calcutta 557, it is held at page 566 in column II:- "Now where definite evidence of acts of possession is forthcoming there is no difference between the proof of possession in the case of jungle, waste or uncultivated land and in that of cultivated lands. But whereas in the case of cultivated lands the plaintiff will fail if he does not prove his possession within 12 years, in the case of jungle or waste lands, if he proves his title, there is a presumption in his favour where having regard to the nature of the land possession cannot be expected to be proved by acts of actual user and enjoyment." Such presumption is available in all cases (1) where the evidence is equally strong and apparently equally well balanced on both sides so that it is difficult to determine where the truth lies; (2) where the evidence on both sides is weak and unsatisfactory but not valueless or wholly incredible; (3) where the land is of such a peculiar nature that the evidence of actual user and enjoyment in the ordinary manner could hardly be expected e.g. lands, which are waste, jungle, parti, gora, submerged under water or any other kind of land incapable of cultivation as held by a Full Bench of the Patna High court in Jaldhari Mahte & Ors. v. Rajendra Singh & Ors., AIR 1958 Patna 386. Learned counsel for the defendant has not been able to show case law to the contrary. Therefore, the first appellate court has gravely erred in setting aside the findings of the trial court that the plaintiffs are owners in possession of the land in dispute and also the decree for permanent prohibitory injunction. 7. So far the claim of the defendant for possession over the land in dispute is concerned, it has been negatived by both the Courts below, which has not been challenged by him either before the first appellate court or before this Court. Therefore, the prayer of the plaintiffs for decree for permanent prohibitory injunction could not be rejected. The substantial question of law is answered accordingly. 8. In the result, there is merit in this appeal and it is allowed. Therefore, the prayer of the plaintiffs for decree for permanent prohibitory injunction could not be rejected. The substantial question of law is answered accordingly. 8. In the result, there is merit in this appeal and it is allowed. The impugned decree and judgment is set aside and the decree and judgment of the trial court is affirmed and the suit of the plaintiffs is decreed, as prayed for. There is no order as to costs.