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2002 DIGILAW 321 (HP)

HARDEVI v. OM PARKASH

2002-11-29

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 3.3.1994 passed by the learned District Judge, Hamirpur in Civil Appeal No. 6 of 1998 whereby he has confirmed the judgment and decree passed by the learned Senior Sub Judge, Hamirpur dismissing the suit of the original appellant/plaintiff [now represented by his legal representatives appellants No. l(a) to l(i)] (hereafter referred to as the appellants). 2. Brief facts leading to the presentation of this appeal are that the deceased appellant instituted a suit for declaration and injunction. The case of the appellants, as disclosed in the plaint, is that the land comprising Khata Khatauni No. 45 min/68, Khasra Nos. 998/289, 999/289 measuring 2 Kanal 17 Marlas, situate in Tika Peharwin, Tehsil Barsar, specifically detailed in the copy of Jamabandi for the year 1982-83 (hereafter referred to as the suit land) had been in their adverse possession for more than 12 years at the time of institution of the suit and they have acquired the title of ownership thereto. However, in the entries in the revenue records the respondents/defendants (hereafter referred to as the respondents) are wrongly shown as owners in possession of the suit land. Respondents No. 1 and 2 in collusion with other respondents got transferred the suit land to defeat the ownership rights of the appellants and to interfere with their possession and started threatening to take forcible possession of the suit land. Hence, the suit. 3. The respondents contested the suit. In the written statement, they raised the preliminary objections that the suit is not maintainable in its present form, that the appellant is estopped by his act and conduct from instituting the suit, that the suit is under valued for the purposes of Court fee and jurisdiction and that the appellants have no cause of action. On merits, it has been claimed that the plaintiff(s) had never been either owner or in possession of the suit land but it is in possession of respondents No. 1 and 2 as the respondents other than respondents No. 1 and 2 had sold their share in the suit land to respondents No. 1 and 2 who are now owners in possession of the suit land. Thus, the claim of the appellants has been denied in toto. 4. Thus, the claim of the appellants has been denied in toto. 4. In the replication, the grounds of defence, as raised in the written statement, have 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 plaintiff has acquired title to the suit land by adverse possession? OPP 2. Whether the plaintiff is entitled to the relief of permanent injunction? OPP 3. If the plaintiff is not found in possession, whether he is entitled to possession? OPP 4. Whether the plaintiff is estopped to sue? OPD 5. Whether the suit is correctly valued for the purpose of Court fee and jurisdiction? OPP 6. Relief. 6. Vide judgment dated 30.11.1987 the trial Court decided Issue Nos. 1 to 3 and 5 against the appellants and Issue No. 4 in favour of the respondents and as a consequence dismissed the suit. 7. Feeling aggrieved, the appellants preferred an appeal in the Court of the learned District Judge, Hamirpur which was dismissed by the impugned judgment and decree. Hence, this appeal which has been admitted for hearing on the following substantial questions of law: 1. Whether Courts below have acted illegally by failure to appreciate plea of adverse possession? 2. Whether the appellant has acquired ownership with respect to land in suit by way of adverse possession? 3. Whether the appellant was not afforded sufficient chance of leading his evidence. 4. Whether all the issues arising out of the pleadings of the parties have not been framed and decided? 5. Whether the appellant is entitled to a decree of injunction? 8. I had heard learned Counsel for the appellants but could not have-the advantage of hearing anyone for the respondents for whom none appeared at the time of hearing. Records were also perused. Substantial Questions No. 1 and 2 : 9. Since both these questions relate to adverse possession, therefore, are taken up together for discussion and decision. 10. It was contended by the learned Counsel for the appellants that there is sufficient evidence to establish the adverse possession of and thereby acquiring title by the appellants over the suit land and the conclusions arrived at to the contrary by the Courts below are unsustainable and deserves to be set aside. 11. 10. It was contended by the learned Counsel for the appellants that there is sufficient evidence to establish the adverse possession of and thereby acquiring title by the appellants over the suit land and the conclusions arrived at to the contrary by the Courts below are unsustainable and deserves to be set aside. 11. Be it stated at the very outset that mere possession howsoever long cannot confer title on the person in long possession. To acquire title by afflux of time apart from the possession for more than the specified period other ingredients which will make the possession adverse has to be pleaded and proved. 12. In State of Himachal Pradesh v. Raj Bans Kishore, RSA No. 228 of 1999 decided on October 14,1999, this Court while dealing with the question as to what are the constituents of adverse possession 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 i.e. 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." 13. It follows that apart from the possession for more than the specified period, the party claiming acquisition of title has to prove that such possession was hostile i.e. in denial of the title of the true owner and was actual, open, uninterrupted, notorious, exclusive and continuous. It follows that apart from the possession for more than the specified period, the party claiming acquisition of title has to prove that such possession was hostile i.e. in denial of the title of the true owner and was actual, open, uninterrupted, notorious, exclusive and continuous. A perusal of the evidence on record, however, reveals that there is no relevant, admissible and acceptable evidence to prove that the appellants had been in adverse possession of the suit land for more than 12 years before the institution of the suit and has acquired title thereto. It is admitted case of the appellants that entries in the revenue records show the suit land in possession of the respondents. The case of the appellants, however, is that such entries are wrong. Be it stated that presumption of truth is attached to the revenue entries which in this case show the suit land in possession of the respondents. No doubt such presumption is rebuttable but can be rebutted by cogent, consistent and reliable evidence. 14. It was contended by the learned Counsel for the appellants that the Courts below had not taken into account the copy of order passed by the Assistant Collector IInd Grade Ext. P-4 holding that the appellant is in possession of the suit land and the copy of judgment Ext. P-2 passed by the Judicial Magistrate 1st Class (1), Hamirpur in Criminal Case No. 110-11 of 1995 wherein the deceased appellant and others were prosecuted under Sections 147, 447 and 379 IPC on the allegations that they had formed an unlawful assembly, trespassed into the suit land and committed theft but were acquitted by the said Court on the ground that the prosecution had failed to prove that respondent No. 1 who had lodged the FIR was not proved to be in possession of the suit land. 15. The lower appellate Court had considered the aforesaid documents in its judgment but has not relied on them and rightly so. A perusal of the record reveals that the order of the Assistant Collector IInd Grade holding that the suit land is in possession of the appellants is based on the report of the Kanoongo Mark A. Primarily this report Mark A has not been proved in accordance with law and thus cannot be read in evidence. A perusal of the record reveals that the order of the Assistant Collector IInd Grade holding that the suit land is in possession of the appellants is based on the report of the Kanoongo Mark A. Primarily this report Mark A has not been proved in accordance with law and thus cannot be read in evidence. In any case, this report is based on the statements of Girju, Jai Singh and Karli which have not been recorded on oath nor the respondents had the occasion to cross-examine these witnesses. Evidently a report based on such statements is wholly inadmissible and thus even the order of the Assistant Collector Ilnd Grade based on such report is vitiated and is of no help to the appellants. 16. Ext. P-2 is the judgment of a Criminal Court in a criminal case. Sections 40 to 43 of the Indian Evidence Act deal with the relevance of such judgments. In Anil Bihari Ghosh v. Smt. Latika Bala Dassi, AIR 1955 SC 566, while dealing with the question of admissibility and relevance of judgment of a Criminal Court in a civil matter, the Honble Supreme Court held as under : "15...The Courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the Will is a valid and genuine Will, there is intestacy in respect of the interest created in favour of Charu, if he was the murderer of the testator. On this question the Courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence....." 17. In Nawab Been v. Sohan Singh and others, AIR 2002 HP 143, this Court, while dealing with the scope, relevance and admissibility of judgment of a Criminal Court in a civil suit, held as under: "25. Sections 40 to 43 of the Evidence Act deal with relevancy of judgments, orders and decrees of the Courts and are as such declared relevant to the extent indicated therein. Sections 40 to 43 of the Evidence Act deal with relevancy of judgments, orders and decrees of the Courts and are as such declared relevant to the extent indicated therein. If the judgment, order and decree do not fall within one or the other of those sections, they will be irrelevant. None of these sections or any other provision of law declares a finding of fact recorded by a Criminal Court as relevant evidence in a Civil Suit before a Civil Court except to prove whether the accused in the case was acquitted or convicted. However, such judgment cannot be relied upon as a conclusion as to whether the accused person therein had or had not committed the act(s) complained against. The Civil Court will have to come to its own conclusion as to the commission or non-commission of the act giving rise to the claim in the suit, on the basis of evidence led by the parties before it independently of the factual conclusion arrived at by the Criminal Court." 18. In view of the above settled position in law Ext. P-2 is admissible only to the extent that the appellant amongst others was prosecuted for the commission of offence punishable under Sections 147, 447 and 379 of the Indian Penal Code and was finally acquitted. Any finding of facts recorded in this judgment are not relevant, admissible and binding on the Civil Court. The Civil Court is bound to give its own findings on the basis of the evidence produced before it and cannot come to a particular conclusion on a point of fact on the basis of any conclusion arrived at by a Criminal Court about the factual state of things. Hence, the Courts below have rightly ignored the document Ext. P-2 as evidence to prove that the appellants are in possession of the suit land. It is moreso when the acquittal of the appellant and his co-accused is based on grant of benefit of doubt to them. 19. Apart from the aforesaid documentary evidence there are statements of deceased appellant (PW 1), Kartar Singh (PW 2), Ram Chand (PW 3), Chattar Singh (PW 4) and Gurbax Singh (PW 5). There is nothing in the statements of these witnesses as to when the appellants entered into possession of the suit land and when it became hostile to the possession of the true owners i.e. the respondents. There is nothing in the statements of these witnesses as to when the appellants entered into possession of the suit land and when it became hostile to the possession of the true owners i.e. the respondents. It also appears from a perusal of their statements that the identity of the suit land by them is highly doubtful, therefore, the lower appellate Court has rightly not relied on the irrelevant, discrepant and inconsistent evidence led by the appellants. On the other hand, the consistent statement of DWs duly supported by the revenue entries are reliable and have rightly been relied by the lower appellate Court in arriving at its conclusions. 20. It may also be pointed out here that both the Courts below have appreciated the evidence on record and have come to concurrent findings of facts that the appellant is not in possession of the suit land. It is well settled that such findings of facts are not to be interfered with in second appeal even if by a process of logic a different conclusion can be arrived at. The findings of facts recorded by the Courts below could be interfered with only if they have ignored any admissible evidence or have taken into account and relied on inadmissible evidence or their findings are based on no evidence and are perverse. This is not the case here. As already seen hereinabove, such findings are based on proper appreciation of the material on record. Therefore, the findings recorded by the Courts below that appellants are not in possession of the suit land do not call for any interference by this Court. Substantial Question No. 3 : 21. A perusal of the record reveals that issues in the suit were framed on 6.8.1986 and thereafter the case remained pending till 19.9.1987 for recording the evidence of the appellants for which purpose six opportunities were granted to lead evidence in the affirmative. Thereafter the appellants had the opportunity to lead rebuttal evidence on 19.11.1987 which was not availed of. In these circumstances it cannot be said that the appellants were not afforded sufficient chance to lead evidence. Substantial Question No. 4 : 22. It is evident from the perusal of order dated 6.8.1986 when the issues in the case were framed that issues have been framed by the learned trial Judge on all the disputed points. No material issue was left unframed. Substantial Question No. 4 : 22. It is evident from the perusal of order dated 6.8.1986 when the issues in the case were framed that issues have been framed by the learned trial Judge on all the disputed points. No material issue was left unframed. It cannot, therefore, be said that the trial Court failed to frame any material issue which arises out of the pleadings of the parties. Substantial Question No. 5 : 23. Since the appellants were not found to be the owners in possession of the suit land, therefore, the relief of injunction could not be granted and thus was rightly refused. 24. No other point was pressed. 25. As a result, there is no merit and substance in the present appeal which merits dismissal and is accordingly dismissed.