Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 98 (HP)

ONKAR CHAND v. JAGTAMBA DEVI

2002-04-09

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood. J. (Oral) - This second appeal arises out of the judgment and decree of the learned Additional District judge (1) Kangra at Dharamshala dated 17.10.2001. 2. The litigation, it appears, has a chequered history and had seen several rounds of litigation. 3. From the records, it appears that one Bhagwanti widow of Bholu Ram was the owner of the disputed property. She died in the year 1959. Plaintiff Onkar Chand and others set up a claim on the properties, on the basis of a will in their favour. This will was challenged by Sumer Chand, the predecessor-in-interest of the present defendants. The litigation ended in a compromise between the parties, whereby it was agreed between them that they shall be entitled to the suit property to the extent of half share each and they will also discharge the debts of Bhagwanti Devi in equal shares. Sumer Chand died in the year 1977. Plaintiffs had brought a suit against the defendant Sumer Chand in the year 1971 for declaration that defendant Sumer Chand was not entitled to seek partition of the suit property without payment of Rs. 1583-75 to the plaintiff. In the alternative, plaintiffs claimed Rs. 1583-75 from the defendants in respect of share of the defendants for the debts of Bhagwanti discharged by the plaintiff. Learned Senior sub judge, Kangra at Dharamshala, vide his judgment dated 23.11.78 held that the defendant Sumer Chand was liable to pay Rs.300/- only and not Rs. 1583-75, as claimed by the plaintiffs. Learned trial court further held that the suit for recovery of the amount was barred by limitation. However, he partly decreed the suit by holding that defendants were not entitled to get the suit land partitioned unless they pay Rs.300/- to the plaintiff. 4. Dissatisfied, the plaintiffs carried an appeal before the learned District judge, which was dismissed on 17.19.1979 (Ex. P-6). 5. Dissatisfied, the plaintiffs carried second appeal before this court, which was dismissed on 10.3.1992 (Ex.p-8). This court observed: "On the basis of evidence on record, both the courts below have rightly held Shamsher Chand alias Sumer Chand liable to pay only Rs.300/- towards half share of mortgage money, other amounts were not "debts" which he was liable to pay". 6. It is after this verdict that the plaintiffs filed the present suit on 14.10.1992. 7. This court observed: "On the basis of evidence on record, both the courts below have rightly held Shamsher Chand alias Sumer Chand liable to pay only Rs.300/- towards half share of mortgage money, other amounts were not "debts" which he was liable to pay". 6. It is after this verdict that the plaintiffs filed the present suit on 14.10.1992. 7. The case of the plaintiffs is that plaintiffs had all along been in physical and exclusive possession of the property and, therefore, they have become owners by adverse possession of the suit property. They deny the title of the defendants and their predecessor-in-interest Sumer Chand over the suit property. 8. The defendants resisted the suit. The allegations were controverted. It was pleaded that in accordance with the compromise decree, both the plaintiffs and defendants were declared owners of the suit property and the defendants were further liable to pay Rs.300/- to the plaintiffs and, therefore, there was no question of the plaintiffs having become owners by adverse possession. Defendants further claimed that after the judgment of this court in the year 1992 they had paid Rs.300/- to the plaintiffs and assuming if this amount is not proved to have been paid to the plaintiffs then they were ready to make the payment to the plaintiffs. 9. The learned trial court by his judgment dated 21.11.1998 negatived the plea of the plaintiffs that they were in adverse possession of the suit property. It was held that the suit property is jointly held by the plaintiffs and defendants. Learned trial court also found that Rs.300/- were deposited by the defendants in the court on 22.9.1994, therefore, they were entitled to get the land partitioned. 10. Aggrieved the defendants filed an appeal before the learned District judge, which was dismissed by the learned Additional District judge on 17.10.2001. 11. Learned Additional District judge, concluded that even if the plaintiffs are assumed to be in exclusive possession of the suit property, they never claimed such possession to be hostile qua the defendants or their predecessor-in-interest, Sumer Chand, on the other hand plaintiffs admitted the rights and title of the predecessor-in-interest of the defendants to the extent of half share in the compromise effected in the year 1960. Learned Appellate court observed that when the plaintiffs filed the suit in the year 1971 claiming the amount due from the defendants no plea of adverse possession was raised by the plaintiffs. It was for the first time, in the year 1992, that the plaintiffs after having lost in the High court claimed adverse possession over the suit property. 12. I have heard the learned counsel for the parties and perused the record. 13. No question of law, such less substantial question of law arises in this appeal. 14. It may be noticed that title of the predecessor-in-interest of the defendants to the extent of half share was admitted by the plaintiffs by a compromise dated 13,10.1960, When the suit was filed by the plaintiff in the year 1971, plea of adverse title was not raised by the plaintiffs. Learned Senior Sub Judge, Kangra at Dharamshala, in his judgment dated 23.11.1978 categorically held that the "defendants were not entitled to get the land partitioned unless the defendant pays (through his legal representatives) a sum of Rs.300/- to the plaintiffs. In other words, the defendants were held to be owners of the suit property to the extent of half share. Thus the plaintiffs were in possession of the suit property also on behalf of the defendants the other cosharers. 15. The appeal arising out of that order was dismissed by the first appellate court as well by this court. This court in its judgment dated 10.3.1992 observed: "From the above it is clear that parties to that suit was not subject to sharing of assets and debts of Mst. Bhagwantu in equal shares. Anyhow, both the courts have concurrently held that Shamsher Chand alias Sumer Chand was liable to pay Rs.300/- towards redemption money and have made partition subject to his paying this amount to the appellants. There are specific directions in the decree that mortgage money would be paid to Hari Ram vendor by the parties to the suit in equal shares." (Emphasis supplied) 16. It may thus be noticed that partition of land between the parties to the suit was not subject to sharing of assets and debts of Mst. Bhagwantu in equal shares. There are specific directions in the decree that mortgage money would be paid to Hari Ram vendor by the parties to the suit in equal shares." (Emphasis supplied) 16. It may thus be noticed that partition of land between the parties to the suit was not subject to sharing of assets and debts of Mst. Bhagwantu in equal shares. This apart, it is settled position of law that mere non-participation in the rent and profits from the joint property by a co-sharer would not amount to his ouster so as to give title, by adverse possession, to the other co-sharer in possession. I have already noticed that the plaintiffs never claimed adverse title over the suit property, till the filing of the present suit. In these circumstances, there was no question of the plaintiffs being in adverse possession of the suit land. 17. Mr. Anand Sharma, learned counsel for the appellant refers to Bal Krishan Vs Satyaprakash and others (2001) 2 SCC 498 and submits that since the plaintiffs were in possession from at least 1960, therefore, the plaintiffs would be deemed to be in adverse possession. There is no substance in the submission. In Bal Krishan it was held that a person claiming title by adverse possession has to prove three things, namely, nec-nec vi, nee clam and nec precario. In other words, he must show that this possession is adequate in continuity, in publicity and in extent. The High court held that "in spite of the fact that the plaintiff continued in possession in spite of the order against him in proceedings under section 250 M.P.L.R. Code, his possession cannot be said to be sufficient in the eye of law to confer a title upon him by adverse possession, as claimed." 18. The apex court found that the conclusion of the High court was erroneous and observed that the fact remains that in spite of the order of the Tahsildar against the appellant which was not acted upon, nor executed, the appellant continued in possession of the suit land and, therefore, the continuity of his possession of the suit land was neither interrupted nor lost. Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity of possession. This authority is of no assistance to the plaintiffs. 19. Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity of possession. This authority is of no assistance to the plaintiffs. 19. It is then contended that in this case defendant did not step into the witness box and therefore, the adverse inference may be drawn against the defendants. 20. It is true that if a defendant does not step into the witness box to make statement on oath in support of the pleadings set out in the written statement an adverse inference would arise but at the same time if there is no independent evidence on record, suit of the plaintiffs cannot be decreed on the basis of the pleadings alone. In this case, it is proved that the plaintiffs claimed their adverse possession for the first time in the year 1992 when the suit was filed. 21. No other point is urged before me. 22. I see no merit in this appeal and the same is dismissed. No order as to costs.