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2003 DIGILAW 51 (HP)

JAISHI RAM v. GIRJA NAND

2003-03-18

M.R.VERMA

body2003
JUDGMENT M. R. Verma, J.: - This second appeal under Section 100 of the Code of Civil Procedure has been preferred by the legal representatives of deceased defendants 2 and 3 (hereafter referred to as the appellants) against the judgment and decree dated 31.5.2000 passed by the learned Additional District Judge, Shimla, confirming the judgment and decree dated 30.11.1994 passed by the learned Sub Judge, Theog, in Civil Suit No. 127/1 of 1990. 2. Brief facts leading to the presentation of this appeal are that the appellants/plaintiffs 1 to 5 (hereafter referred to as the respondents) instituted a suit against deceased defendants Bhegtu and Daulat Ram (now represented by the appellants and proforma respondent No. 6, Jaishi Ram, appellant No. 1) and proforma respondents 7 to 13 for respondents from causing any obstruction to the plaintiffs in the use and enjoyment of the land comprising khasra No. 510, measuring 8 bighas 16 biswas, situate in Chak Arhiyala, Teh. Kotkhai or to the extent of 5 bighas 16 biswas (hereafter referred to as the suit land) which is in possession of the respondents/plaintiffs. The case of the respondents/plaintiffs as made out in the plaint, is that one Jhrangu, predecessor in interest of the respondent/plaintiffs purchased the suit land in Asauj 1982 B.K. for consideration from the predecessor in interest of the appellants/defendants and proforma respondent and mutation No. 502 dated 4.2.1993 B.K. was accordingly attested. A suit, however, was filed by deceased defendants Bhagtu and Daulat Ram and appellant No. 1 Jaishi Ram for declaration that they alongwith one Hari Chand, predecessor in interest of proforma respondents 7 to 13 are the owners of the suit land and the aforesaid mutation in favour of Jhrangu was brought about fraudulently and for possession of 5 bighas 16 biswas out of the suit land, which was admitted to be in possession of Jhrangu. The suit was decreed by the learned Sub Judge, Rampur on 24.9.1951. The decree passed by the learned Sub Judge was affirmed by the learned District Judge, Mahasu, but the judgments and decrees were set aside by the Judicial Commissioner, HP. The suit was decreed by the learned Sub Judge, Rampur on 24.9.1951. The decree passed by the learned Sub Judge was affirmed by the learned District Judge, Mahasu, but the judgments and decrees were set aside by the Judicial Commissioner, HP. in Second Appeal No. 12 of 1952, decided on 27.4.1953 and said Jhrangu was held owner in possession of the suit land to the extent of 5 bighas 16 biswas and the suit for declaration and possession to the extent of 5 bighas and 16 biswas was dismissed and was allowed only to the extent of 3 bighwas. Said Jhrangu died and his estate was inherited by his sons Krishnu and Girja Nand. Said Krishnu has also died and respondents/plaintiffs 2 to 5 are his legal heirs and respondents/plaintiff No. 1 is the legal heir of said Girja Nand. As such, the respondents/plaintiffs are the co-owners in possession of the suit land to the extent of 5 bighas 16 biswas, whereas the appellants/defendants and proforma respondents/defendants had no right and title in the suit land except to the extent of 3 bighas. However, by show of force, they threatened to occupy the whole of the suit land to dispossess the respondents/plaintiffs and tried to dispossess them from the suit land in the month of August, 1990. Hence the suit. 3. Appellant/defendant No. 1 and the original defendants Bhagtu and Daulat Ram (now represented by the appellants and proforma respondent No. 6) contested the suit. In their written statement, they raised the preliminary objections that it was not maintainable and was bad for non-joinder of necessary parties. On merits, purchase of suit land by Jhrangu was denied. Institution of the earlier suit has been admitted. It is, however, claimed that part of the suit land, measuring 5 bighas 16 biswas was given by one Manoharu to Jhrangu for cultivation as licensee. The inheritance of estate of deceased Jhrangu by the respondents/plaintiffs is not disputed but it has been specifically denied that Jhrangu and the respondents/plaintiffs were in possession of 5 bighas 16 biswas of the suit land for the, last 37 years and the averments in this regard as made in the plaint are false and wrong and are concocted. It is also claimed that the suit is mala fide and the respondents/plaintiffs have not come to the court with clean hands and have suppressed material facts. It is also claimed that the suit is mala fide and the respondents/plaintiffs have not come to the court with clean hands and have suppressed material facts. It is further averred that Jhrangu was ousted from possession of 5 bighas 16 biswas out of the suit land in the year 1954 and thereafter the land measuring 5 bighas 16 biswas remained in possession of the appellants and proforma respondents/defendants exclusively, openly, peacefully, continuously and without any interruption whatsoever from the respondents/plaintiffs or from their predecessors in interest. It is also claimed that said Jhrangu filed a civil suit against appellant No. 1/defendant and deceased defendants Bhagtu and Daulat Ram for declaration and possession of the suit land in the year 1954. The suit, however, was dismissed in the year 1955. The possession of the appellants and proforma respondents/defendants and their predecessors-in-interest has duly been recorded in the revenue records. The right, title and interest of the respondents/plaintiffs, if any, in the suit land stood extinguished by lease of time and adverse possession. Therefore, being out of possession, the suit for injunction is not maintainable. 4. Respondents/plaintiffs filed replication wherein the grounds of defence as taken in the written statement were denied and the claim as made out in the plaint was reaffirmed. 5. On the pleadings of the parties, the learned trial Judge framed the following issues :- 1. Whether the plaintiffs are co-owner in possession of the suit land as alleged ? OPP. 2. Whether the suit is not maintainablel as alleged ? OPD. 3. Whether the defendants ousted Jhrangu Ram from the part of the suit land in the year 1954 as alleged ? OPD. 4. Whether the defendants have become owner in possession over the part of the suit land, as alleged ? OPD. 5. Relief. 6. On the basis of the evidence brought on record, the learned trial Judge decided issue No. 1 in favour of respondents/plaintiffs and issue Nos. 2 to 4 were decided against the appellants/defendants and proforma respondents/defendants 6 to 13 and as a consequence, the suit was decreed. 7. The appellants/defendants preferred an appeal against the judgment and decree of the learned trial Judge which was dismissed by the learned Additional District Judge, Shimla, by the impugned judgment and decree. Hence the present appeal. 8. This appeal had been admitted for hearing on the following Substantial Questions of Law :- 1. 7. The appellants/defendants preferred an appeal against the judgment and decree of the learned trial Judge which was dismissed by the learned Additional District Judge, Shimla, by the impugned judgment and decree. Hence the present appeal. 8. This appeal had been admitted for hearing on the following Substantial Questions of Law :- 1. Whether the suit for permanent, prohibitory injunction without identifying the specific portion of the land is competent and maintainable against the appellants, especially, in view of the admitted facts by the respondents that they are co-owners of the land ? 2. Whether there has been mis-reading and mis-appreciation of the evidence oral as well documentary adduced by the parties ? 9. I have heard the learned Counsel for the parties and have gone through the record. Substantial Question No. 1 10. There is no dispute that land Khasra No. 510 measures 8 bighas 16 biswas. The respondents/plaintiffs seek injunction restraining the appellants/ defendants and proforma respondents/ defendants from interfering in the land Khasra No. 510 as a whole or to -the extent of 5 Bighas 16 Biswas which is allegedly in their possession. It is admitted by the respondents/plaintiffs vide paras 3 and 5 of the plaint that the appellants/defendants and proforma respondents/defendants have title and right over 3 bighas out of the total area of the land Khasra No. 510. Even respondent/plaintiff Girja Nand (PW-1) examined by the respondents/plaintiffs in support of their case, has stated that he is in possession of 5 Bighas 16 Biswas of land and has not claimed ownership and/or possession of the remaining area of Khasra No. 510, that is three Bighas. Thus, the relief claimed in fact pertains to a part of land Khasra No. 51Q. However, in the plaint the land measuring 5 Bighas 16 Biswas on which the respondents/plaintiffs claim possession, has not been specified in a manner so as to identify it. No Tatima showing that portion of Khasra No. 510 which the respondents/plaintiffs claim in their possession, has been filed with the plaint. Therefore, for want of identity of the land claimed by the respondents/plaintiffs in their possession the claim is vague and no effective decree capable of being executed, could be passed. Substantial Question No. 2 11. Para 5 of the written statement, in fact, sums up the pleas of the defence and reads as under:-, "5. Therefore, for want of identity of the land claimed by the respondents/plaintiffs in their possession the claim is vague and no effective decree capable of being executed, could be passed. Substantial Question No. 2 11. Para 5 of the written statement, in fact, sums up the pleas of the defence and reads as under:-, "5. That para 5 of the plaint and every averments made therein are false, wrong and motivated to colour the real facts. The concoction has been made to frame the present suit which is not maintainable at all as well be clear from the facts disclosed below. The suit of the plaintiffs is mala fide and they have not come with clear hands and has suppressed material facts and therefore the suit for injunction is not maintainable. There is no question of threats of occupying the land or dispossess the plaintiffs from the suit land, who are not in possession since 37 years and have no subsisting right, title and interest in the suit land either to the extent of 5-16 bighas, or any part thereof out of Khasra No. 510 as they have alleged. As a matter of fact the defendants ousted Shri Jharangu from possession of 5-16 bighas out of Khasra No. 510 in the year 1954 and did not allow him or his successors to reoccupy the suit land again since then despite efforts. The defendants entered and occupied 5-16 bighas out. of Khasra No. 510 which was in possession of Jharangu was referred above or in any other capacity. The defendants asserted and proclaimed in possession of the suit land as exclusive owners of Khasra No. 510 Chak Arahala to the exclusion of Jharangu etc. and had been exclusively cultivating and occupying the whole land as exclusive owners in denial of any right, title and interest of Shri Jharangu and his heirs since 1954 openly, peacefully, continuously, without any interruption whatsoever from the plaintiffs or their predecessors Shri Jhanragu etc. to their knowledge, as exclusive owners since then. Therefore, the plaintiffs etc. stands ousted as referred above. Shri Jharangu also filed a civil suit against the defendants in the year 1955, the suit was filed for declaration on the basis of ownership of part of the suit land and he also demanded possession of the same in the suit. to their knowledge, as exclusive owners since then. Therefore, the plaintiffs etc. stands ousted as referred above. Shri Jharangu also filed a civil suit against the defendants in the year 1955, the suit was filed for declaration on the basis of ownership of part of the suit land and he also demanded possession of the same in the suit. The exclusive possession of the defendants are also recorded in the revenue record since then and subsequently also found place in the Jamabandhi for the year 1957-58 till today. The right, title and interest of the plaintiffs stands extinguished by lapse of time and the defendants have become owners of the suit land by way of adverse possession in the year 1966 and now the plaintiffs have nothing to do with the suit land or any part thereof. The plaintiffs cannot maintain the present suit for mere injunction being out of possession as referred above." 13. Thus, the claim of the appellants/defendants and proforma respondents/defendants is that they ousted the respondents/plaintiffs from the suit land to the extent of 5 Bighas 16 Biswas in 1954 and since then are in adverse possession thereof and have acquired title by lapse of time and that the respondents/plaintiffs are guilty of suppression of facts and have not come to the Court with clean hands and being out of possession, their suit for injunction is not maintainable. 14. In the corresponding para of the replication the respondents/plaintiffs have denied the contents of para 5 of the written statement as a whole and have claimed that they have no knowledge of the earlier suit referred to in the written statement. PW-1 was cross-examined about the institution and dismissal of the earlier suit but he pleaded ignorance about such suit. On the contrary Jaishi Ram appellant/defendant (DW-1) has stated that after one year of the decision of the case by Uch Nayayalya (Court of Judicial Commissioner H.P.) whereby 3 Bighas of land out of Khasra No. 510 was declared that of the appellants/defendants and proforma respondents/defendants and remaining 5 Bighas 16 biswas was held that of Jharangu, remained in hostile possession thereof. Thereafter Jharangu instituted a suit for possession of the said land at Rampur. He has produced copy of order dated 11.3.1955 Ext. DW-1/0 passed in that suit. A perusal of Ext. Thereafter Jharangu instituted a suit for possession of the said land at Rampur. He has produced copy of order dated 11.3.1955 Ext. DW-1/0 passed in that suit. A perusal of Ext. DW-1/0 shows that Jharangu instituted suit No. 153 of 1954 against the deceased defendants and appellant No. 1 for possession of land measuring 5 Bighas 16 Biswas comprising Khasra No. 510 situate in Chak Arhala, i.e. the land in suit, and the said suit was dismissed by the learned Sub Judge, Rampur vide order Ext. DW-1/0 under Order 9 Rule 3 of the Code of Civil Procedure on 11.3.1955. It is implicit in the act of institution of this suit for possession of the disputed land that Jharangu, predecessor-in-interest of the respondents/plaintiffs, was not in possession of the disputed land at the time of institution of the suit, i.e. 29.7.1954. Order Ext.DW-1/-0 has not been discussed by the learned trial Judge in his judgment and thus ignored a very important material piece of admissible evidence. The appellate Court below, no doubt, referred to Ext. DW-1/0 in its Judgment but ignored it on the ground that copies of the pleadings were not produced and proved. This is no reason to ignore an order passed by a Court of competent jurisdiction an attested copy whereof was produced and admitted in evidence and is admissible in evidence without any formal proof. There is noting on record to rebut the statement of DW-1 that Jharangu, the predecessor-in-interest of the respondents/plaintiffs instituted a suit for possession of the disputed land after his forcible dispossession by the original defendants and appellant No. 1. Statement of DW-1 is corroborated by the order Ext. DW-1/0 and the revenue entries vide Exts.DW-1/E, DW-1/F, DW-1/G, DW-1/H, DW-1/J, DW-1/K, DW-1/L, DW-1/M and DW-P-2. 15. Both the Courts below have basically relied on the judgment of the learned Judicial Commissioner Ext. P-1 which was delivered on April 27, 1953. Anything said therein about possession of the disputed land could not be true for all the times to come. It is clearly set up case in the written statement that the predecessor-in-interest of the respondents/plaintiffs was dispossessed from the suit land by the appellants/defendants and proforma respondents/defendants after one year of the passing of the judgment Ext. P-1. The plea, as already stated above, is supported by DW-1 whose statement is corroborated by order Ext. It is clearly set up case in the written statement that the predecessor-in-interest of the respondents/plaintiffs was dispossessed from the suit land by the appellants/defendants and proforma respondents/defendants after one year of the passing of the judgment Ext. P-1. The plea, as already stated above, is supported by DW-1 whose statement is corroborated by order Ext. DW-1/O and copies of Jamabandies Exts.DW-1/E to DW-1/H and DW-1/J to DW-1/M and P-2. It is not the case of the respondents/plaintiffs that they or their predecessor-in-interest took possession of the land in dispute at any time after 11.3.1955, i.e. after passing of the order Ext. DW-1/0. Both the Courts below have thus misled themselves by ignoring and misinterpreting the evidence on record and arrived at a highly unjust and perverse conclusion resulting in decreeing the suit of the respondents/plaintiffs for injunction whereas they are clearly proved to be out of possession of the suit land and the suit for injunction was not maintainable. Therefore, the impugned judgments and decree cannot be sustained. 16. As a result, this appeal is allowed. The impugned judgments and decree are set aside and the suit of the respondents/plaintiffs is dismissed. The respondents/plaintiffs to pay the costs throughout.