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2002 DIGILAW 319 (HP)

STATE OF HIMACHAL PRADESH v. SONDHU

2002-11-28

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.:—This appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 22.7.1994 passed by the learned Additional District Judge, Solan, Camp at Nalagarh, in Civil Appeal No. 33 NL/13 of 1993. 2. Brief facts leading to the presentation of this appeal are that respondent No. 1 Soudhu Ram and his brother Shiv Ram [since deceased and now represented by respondents No. 2(a) to 2(c)] (hereafter referred to as the plaintiffs) instituted a suit for declaration and consequential relief of permanent injunction against the appellant/defendant (hereafter referred to as the defendant). The case of the plaintiffs, as made out in the plaint, is that the land comprising Khasra No. 263 measuring 5 Bighas 6 Biswas, Khewat Khatauni No. 56 min/68, situate in village Kholowal, Pargana Gullerwala, Tehsil Nalagarh, District Solan, as specifically detailed in the Jamabandi for the year 1983-84 (hereafter referred to as the suit land) is in possession of the plaintiffs since 1.7.1958 when they entered on the said land and planted trees of Kikkar, Beri etc. thereon and also used the same as Ghasni. Thereafter they remained in continuous uninterrupted, hostile possession of the suit land to the knowledge of the residents of Village Kholowal, Gram Panchayat Kholowal and with the passage of time acquired title of ownership by way of adverse possession against the then owner of the land on 30.6.1970. The suit land did not vest in the defendant as the plaintiffs had become owner thereof by virtue of their adverse possession and the defendant has no right, title or interest over the suit land. It is further averred that the entries in the revenue record showing the defendant as owner of the suit land are illegal, null and void, inoperative and ineffective. Even otherwise the plaintiffs are entitled to retain the possession of the suit land under the latest encroachment policy of the H.P. Government/Their request to move their case for admitting them to be the owners of the suit land was declined and the defendant is threatening them to launch ejectment proceedings against them to evict them from the suit land. Even otherwise the plaintiffs are entitled to retain the possession of the suit land under the latest encroachment policy of the H.P. Government/Their request to move their case for admitting them to be the owners of the suit land was declined and the defendant is threatening them to launch ejectment proceedings against them to evict them from the suit land. Hence, the suit for declaration that they are the owners in possession of the suit land and the entries in the revenue records showing the defendant as owner in possession are wrong, illegal, null and void, inoperative and ineffective and the consequential relief of permanent injunction restraining the defendant from interfering with the possession of the plaintiffs over the suit land. 3. The defendant contested the suit. In the written statement, it raised the preliminary objections that the Court has no jurisdiction to try the suit, that the suit is bad for want of notice under Section 80 CPC, that the plaintiff has no cause of action or locus standi and the suit is not maintainable. On merits, it has been claimed that the plaintiffs have no right, title or interest in the suit land which is owned and possessed by the defendant. The acquisition of title by virtue of adverse possession has been denied and the revenue records have now been updated. As per the Report Roznamcha No. 182 dated 9.2.1998, the entries have been corrected and such entries showing, the defendant as owner in possession of the suit land are factually correct and thus the claim of the plaintiffs has been denied in toto. 4. Plaintiffs filed replication wherein the grounds of defence, as taken in the written statement, has been denied and the claim, as made out in the plaint, has been reaffirmed. 5. On the pleadings of the parties, the learned trial Judge framed the following issues : 1. Whether the plaintiffs have become owners of the suit land by way of adverse possession, as alleged? OPP 2. Whether the entries in the revenue record showing the defendant as owner of the suit land are null and void, as alleged? OPP 3. If Issue No. 1 is not proved in affirmative, whether the plaintiffs are entitled to seek relief of permanent injunction as alleged? OPP 4. Whether the Court has no jurisdiction, as alleged? OPD 5. OPP 2. Whether the entries in the revenue record showing the defendant as owner of the suit land are null and void, as alleged? OPP 3. If Issue No. 1 is not proved in affirmative, whether the plaintiffs are entitled to seek relief of permanent injunction as alleged? OPP 4. Whether the Court has no jurisdiction, as alleged? OPD 5. Whether the suit is bad for want of legal notice, as alleged? OPD 6. Whether the plaintiffs have no cause of action, as alleged? OPD 7. Whether the plaintiffs have no locus standi to file the suit, as alleged? OPD 8. Whether the suit is not maintainable, as alleged? OPD 9. Relief. 6. Vide its judgment dated 20.4.1993, the trial Court decided Issue Nos. 1 to 3 against the plaintiff. Issue No. 4 was disposed of as not pressed, Issue No. 5 was decided against the defendant whereas Issue Nos. 6 to 8 were held in favour of the defendant and as a result the suit was dismissed. 7. Being aggrieved, the plaintiffs preferred an appeal in the Court of the learned Additional District Judge, Solan, Camp at Nalagarh, who by the impugned judgment, allowed the appeal and decreed the suit of the plaintiffs. 8. Being aggrieved by the impugned judgment and decree passed by the learned Additional District Judge, the defendant has preferred the present appeal which has been admitted for hearing on the following substantial questions of law : 1. Whether mere possession howsoever long will mature into title by way of adverse possession? 2. Whether Civil Court has no jurisdiction to entertain and try the suit? 3. Whether misreading of evidence itself amounts to substantial questions of law? 9. I have heard the learned Deputy Advocate General for the defendant and the learned Counsel for the plaintiffs and have also gone through the records. Substantial Question No, 1 10. It is well settled that mere possession, howsoever long, will not mature into title by way of adverse possession. While dealing with the question as to what is adverse possession on the basis of which title can be acquired after lapse of specified period, this Court in State of H.P. v. Raj Bans Kishore, (RSA No. 228 of 1999, decided on 14.10.1999) held as under : "8. Hostile animus is one of the most essential constituent/ingredient of adverse possession. While dealing with the question as to what is adverse possession on the basis of which title can be acquired after lapse of specified period, this Court in State of H.P. v. Raj Bans Kishore, (RSA No. 228 of 1999, decided on 14.10.1999) held as under : "8. Hostile animus is one of the most essential constituent/ingredient of adverse possession. Adverse possession is essentially a hostile possession in denial of the title of the true owner. It commences in wrong and is maintained against right. The classical requirement of adverse possession is that it should be nee vi nee clam nee precario, that is, that it should be peaceful, open and continuous. Thus, to acquire title by adverse possession, it should be hostile possession under a claim of title in denial of the title of the true owner and must be actual, open, uninterrupted, notorious, exclusive and continuous. It must be adequate in continuity, in publicity and in extent to show that it is adverse to the true owner and must be continued for over the statutory period. It must be overt without concealment though notice to the real owner is not necessary. The hostile character of the possession is gauged by the animus of the person setting up adverse possession. While claiming adverse possession, the party so claiming must adequately plead the constituents of adverse possession." 11. In view of the above position in law, mere longevity of the possession will not result in acquisition of title by lapse of time but the possession has to be shown to be hostile, peaceful, open, continuous, actual, uninterrupted, notorious and exclusive. 12. It was contended by the learned Deputy Advocate General that in view of the material on record, the plaintiffs have failed to prove the essential ingredients of adverse possession over the suit land and acquisition of title by virtue of such possession, whereas on the contrary, as per the revenue records, the suit land is owned and possessed by the defendant. Therefore, the lower Appellate Court has wrongly held the plaintiffs to be the owners in possession of the suit land by virtue of adverse possession and such findings not being supportable on the basis of the material on record, deserve to be set aside. 13. The question as to which one of the parties is in possession of the suit land, is a question of fact. 13. The question as to which one of the parties is in possession of the suit land, is a question of fact. Again, since how long such party had been in possession of the suit land, is a question of fact. The question whether by such possession title has been acquired by the person in possession, is a mixed question of law and fact. In the case in hand, the trial Court ignoring the entries in the revenue records, came to the conclusion that the plaintiffs are not in possession of the suit land and in any case their possession over the suit land is not proved to be hostile. Therefore, the trial Court dismissed the suit. However, the lower appellate Court, after examining and analysing the entire evidence on record, came to the conclusion that the plaintiffs had been in adverse possession of the suit land since 1962 and by the time the Himachal Pradesh Village Common Lands Vesting and Utilization Act came into force, their possession had matured into title. Therefore, the lower appellate Court decreed the suit. 14. It is well settled that findings of fact recorded by the first appellate Court being the final Court of facts, are not to be interfered with in the second appeal unless it is shown that such Court had rejected admissible evidence, or has accepted inadmissible evidence, or findings recorded by it can in no way be supported on the basis of the material on record and are perverse. 15. In the case in hand, neither the first appellate Court read in evidence any inadmissible evidence nor rejected any admissible evidence. The findings recorded by it are fully supportable on the basis of the material on record, therefore, cannot be said to be perverse. The documentary evidence led by the parties consists of copies of Jamabandis Exts. PI to P6, Dl, PI/ A, D2, D2/A, D3, D3/A, D4 to D12, copy of Khasra Girdawari Ext. D13, copy of Rapat Rojnamcha Wakiati Ext. D14 and order of the Land Reforms officer Ext. D16. The copies of the records prior to the year 1958 regarding ownership and possession of the suit land are not relevant because the plaintiffs claim to have entered upon adverse possession of the suit land on 1.7.1958. Copy of Jamabandi for the year 1958-59 Ext. D14 and order of the Land Reforms officer Ext. D16. The copies of the records prior to the year 1958 regarding ownership and possession of the suit land are not relevant because the plaintiffs claim to have entered upon adverse possession of the suit land on 1.7.1958. Copy of Jamabandi for the year 1958-59 Ext. D5 shows the suit land as Shamlat Deh Bah Tarnam Nagar Panchayat in possession of the Bashindgan Deh. So are the entries in the Misal Hakiat Ext. P6. However, in the copy of Jamabandi for the year 1962-63 Ext. P5, the suit land is shown as Shamlat Deh, in possession of plaintiffs Sondhu and Shiv Ram [predecessor in interest of respondents No. l(a) to l(c)]. In the column of rent the entry is "Bila Lagan Kabia Najavaj". Same are the entires in the succeeding Jamabandis for the years 1969-70 Ext. P4 (-Ext. D8) and for the years 1973-74 Ext. P3 (-Ext, D9) except that in the ownership column "Shamlat Deh" has been substituted by "Gram Panchayat Deh". Thus, in view of the entries in the aforesaid Jamabandis, plaintiff Sondhi and his co-sharer said Shiv Ram have been shown in possession of the suit land Without payment of rent because of "Kabja Najayaj", i.e. the possession which is not permitted by the true owner but is adverse/hostile to the interest of the true owner for a continuous period of twelve years. 16. Be it stated here that entires in the aforesaid records have been made, authenticated and are maintained by the public functionaries and under the law presumption of truth is attached to these entries. Though such presumption is rebuttable but it can be rebutted only by leading cogent, consistent and reliable evidence. The defendant, however, has failed to lead any such evidence nor it has been pleaded or suggested that these entries were the result of any collusion between the plaintiffs and the concerned public functionaries. These entries fully corroborate the statement of plain-: tiff Sondhu (PW-1) regarding the plaintiffs having become owners of the suit land by virtue of adverse possession. 17. It appears that as a consequence of the coming into force of the H.P Village Common Land Vesting and Utilization Act and by virtue of Mutation No. 292, the defendant was recorded as owner of the suit land as is evident from the copy of Jamabandi for the years 1978-79 Ext. D10. 17. It appears that as a consequence of the coming into force of the H.P Village Common Land Vesting and Utilization Act and by virtue of Mutation No. 292, the defendant was recorded as owner of the suit land as is evident from the copy of Jamabandi for the years 1978-79 Ext. D10. However, even in this Jamabandi Sondhu and deceased Shiv Ram are shown in possession of the suit land on the basis of "Kabja Najayaj". So are the entries in the Jamabandi for the years 1983-84. 18. The contention of the learned Deputy Advocate General is that since in the year 1974 the State has become owner of the suit land, therefore, even if it is assumed that the plaintiffs had been in possession of the suit land as per the copy of Jamabandis Exts. P3, P4 and P5, their possession has not matured into ownership as twelve years time had not elapsed between their entry into possession and the vesting of the ownership rights in the State and by virtue of the vesting of the suit land in the State, such a title could be perfected only after expiry of thirty years from the date of entry in possession. 19. As already stated, the plaintiffs for the first time are shown in possession of the suit land in the copy of the Jamabandi Ext. P5 for the years 1962-63, therefore, they had come in possession of the suit land either in the first half of the year 1962 or in the later half of the year 1961 as in the "Misal Hakiat" for the years 1960-61 the suit land is shown in possession of "Bashindgan Deh". If for the agricultural year 1962-63 the Jamabandi shows the plaintiffs in possession of the suit land, their entry in the Khasra Girdawari must have come before 30th of June, 1962 from which date the agricultural year 1962-63 was to commence as per the definition of "agricultural year" under sub-section (1) of Section 4 of the H.P. Land Revenue Act. The HP. Village Common Land Vesting and Utilization Act, 1974 admittedly came into force on 29.8.1974 by which time the plaintiffs had already been in possession of the suit land for more than twelve years as "Kabij Najayaj" and their possession had matured into title against the then true owner. 20. The HP. Village Common Land Vesting and Utilization Act, 1974 admittedly came into force on 29.8.1974 by which time the plaintiffs had already been in possession of the suit land for more than twelve years as "Kabij Najayaj" and their possession had matured into title against the then true owner. 20. To controvert the claim of the plaintiffs the defendant has not led any oral evidence but reliance was laid on the copy of "Rojnamcha" Ext. D14, whereby the entries in the column of possession in the revenue record were made in favour of the State and the order is Ext. D16 whereby such entries were ordered to be made. There is nothing on the record to show that the order Ext. D-16 came to be passed after due notice to deceased plaintiff Shiv Ram who was shown in joint possession of the suit land with plaintiff Sondhu. No doubt from the order it appears that Sondhu was present and he allegedly stated that he had no objection if the entries showing them as "Gair Moursee" in the records are deleted. It is not their case even now that they had ever been tenants in the suit land. The statement he allegedly made before the Revenue Officer has neither been put to plaintiff Sondhu (PW 1) nor has otherwise been proved. Ext. D-14 simply reveals the compliance of the aforesaid order whereby the names of the plaintiffs were deleted from the column of possession in the Jamabandi and the State was recorded in possession thereof. There is no evidence whatsoever to prove that the plaintiffs were ever evicted from the suit land. Evidently, this evidence led by the defendant is not enough to dislodge the claim of the plaintiffs that they were in adverse possession of the suit land which has matured into title with the lapse of time. Therefore, the findings recorded by the lower appellate Court that the plaintiffs have become owners of the suit land by virtue of adverse possession, do, not call for any interference. Substantial Question No. 2. 21. It cannot be disputed that the question of title is involved for determination in the suit and such a title could be declared and the injunction as prayed for could be granted only by a Civil Court. Therefore, the suit was exclusively triable by a Civil Court. Substantial Question No. 2. 21. It cannot be disputed that the question of title is involved for determination in the suit and such a title could be declared and the injunction as prayed for could be granted only by a Civil Court. Therefore, the suit was exclusively triable by a Civil Court. Moreover, the objection regarding jurisdiction was given up by the defendant before the trial Court and it cannot be now permitted to be raised in the second appeal. Substantial Question No. 3. 22. As already seen hereinabove, it is not a case of misreading of evidence. 23. As a result this appeal merits dismissal and is accordingly dismissed. Parties, however, are left to bear their own costs. Appeal dismissed.