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2006 DIGILAW 9 (HP)

DURGA DUTT v. RAMESH DUTT

2006-01-04

V.M.JAIN

body2006
JUDGEMENT V.M, Jain, J. This regular second appeal has been filed by defendant-appellant Durga Dutta against the judgments and decrees of the courts below, whereby the suit filed by the plaintiffs was partly decreed and counter claim of defendant No.1 was dismissed and the appeals filed by both the sides were dismissed by the learned District Judge and the judgments and decrees of the trial court were affirmed. 2. The facts, which are relevant for the decision of the present appeal, are that plaintiff Smt Chander Kanta and Ramesh Dutt had filed a suit for declaration with consequential relief of injunction against Durga Dutt defendant. In the said suit it was alleged that the civil court decree dated 26.4.1984, in the civil suit titled as Durga Dutt vs. Surat Ram, in respect of land measuring 13 biswas, comprised in Khasra No. 87 was illegal and void and not binding on the rights of the plaintiffs and that the plaintiffs and the proforma defendants were the joint owners of the suit land and the plaintiffs were in exclusive possession thereof and that the aforesaid decree passed in favour of Durga Dutt was the result of fraud and collusion between said Durga Dutt and Surat Ram, since deceased. It was further alleged that the revenue entries recorded in favour of defendant No.1 Durga Dutt, showing him in exclusive possession of the suit land, were illegal and void and not binding on the rights of the plaintiffs. The plaintiffs-appellant sought a decree for injunction and in the alternative for joint possession. The case of the plaintiffs was that the suit land was jointly owned and possessed by plaintiff No.1 Smt. Chander Kanta and Surat Ram, predecessor-in-interest of plaintiff No.2 Ramesh Dutt and proforma defendants No.2 and 3. It was alleged that the said land was joint and ancestral and was never partitioned between them and the same was in cultivating possession of the plaintiffs, by way of family arrangement. It was further alleged that defendant No.1 Durga Dutt, in collusion with aforesaid Surat Ram, who was the co-owner to the extent of Vz share in the suit land, got a bogus agreement of sale in respect of the suit land prepared, with the intention to deprive the plaintiffs of the suit land. It was further alleged that defendant No.1 Durga Dutt, in collusion with aforesaid Surat Ram, who was the co-owner to the extent of Vz share in the suit land, got a bogus agreement of sale in respect of the suit land prepared, with the intention to deprive the plaintiffs of the suit land. It was alleged that the said agreement dated 24.3.1983 was illegal and void and not binding on the rights of the plaintiffs. It was alleged that Surat Ram never remained in possession of the suit land and that he did not contest the previous suit filed by Durga Dutt against him with the intention to help Durga Dutt. It was further alleged that even otherwise Surat Ram could not have transferred or agreed to transfer the land more than his V2 share in the suit land. It was alleged that the decree dated 26.4.1984 obtained by defendant No. 1 Durga Dutt behind the back of the plaintiffs was illegal and void and not binding on the rights of the plaintiffs. 3. The suit was contested by defendant No.1 by filing written statement, taking up various preliminary objections. On merits, it was admitted that the suit land was jointly owned by plaintiff No.1 Smt. Chander Kanta and Surat Ram aforesaid. However, it was denied that the suit land was in actual physical possession of plaintiff No.1 by way of family settlement. On the other hand, it was pleaded that the suit land was in actual possession of Surat Ram, by way of family arrangement. It was denied that the agreement dated 24.3.1983 and bogus. On the other hand, it was pleaded that infact Surat Ram was in need of Rs. 45,000/-and he. entered into the aforesaid agreement dated 24.3.1983 for sale o the suit land because the suit land was entirely in his possession. It was alleged that since Surat Ram had refused to execute the sale deed, he (Durga Dutt) filed a suit against Surat Ram and the same was decreed by the trial Court on 25.4.1984 and it was held by the court that the entire suit land was in his (Durga Dutt) possession. It was alleged that since Surat Ram had refused to execute the sale deed, he (Durga Dutt) filed a suit against Surat Ram and the same was decreed by the trial Court on 25.4.1984 and it was held by the court that the entire suit land was in his (Durga Dutt) possession. It was further alleged that he (Durga Dutt) was in possession of the suit land since the year 1981 as per agreement dated 24.3.1983 and if it was found that he had not become owner of the suit land by virtue of the aforesaid agreement dated 24.3.1983 and the aforesaid decree dated 26.4.1984, in that case he had become owner of the suit land by way of adverse possession. Defendant No.1 also filed a counter claim for declaration to the effect that he was owner in possession of the suit property by way of adverse possession. He also sought a decree for permanent prohibitory injunction, restraining the other side from interfering in his peaceful possession over the suit land. 4. After hearing both sides and perusing the record, the learned trial court partly decreed the suit of the plaintiffs declaring the plaintiffs and proforma defendants No.2 and 3 to the joint owners of the suit land, but without possession. It was further held had plaintiff No.1 Smt. Chander Kanta was entitled to claim possession of her Vi share in the suit land, but the claim of plaintiff No.2 and proforma defendants No.2 and 3 for possession of the remaining % share in the suit land was declined. Resultantly, a decree for joint possession of !4 share in the suit land was passed in favour of plaintiff No.1 and against defendant No.1, whereas the counter claim filed by respondent No,1 was dismissed. Aggrieved against the judgment and decree passed by the trial court, both sides filed appeals before the District Judge. The learned District Judge, after hearing both sides and perusing the record, dismissed both the appeals and upheld the findings of the trial court. Aggrieved against the same, Durga Dutt defendant filed the present regular second appeal in this court. 5. After hearing the learned course for the perusing the record, in my opinion, there is no merit in this appeal and the same is liable to be dismissed. Aggrieved against the same, Durga Dutt defendant filed the present regular second appeal in this court. 5. After hearing the learned course for the perusing the record, in my opinion, there is no merit in this appeal and the same is liable to be dismissed. As referred to above, plaintiff No.1 Smt. Chander Kanta was the owner to the extent of Vi share in the suit land, whereas the remaining V2 share was owned by Surat Ram. Since Surat Ram had entered into an agreement with Durga Dutt defendant, vide agreement dated 24.3.1983, in respect of the entire land, it could certainly be said that the said agreement was not binding on Smt. Chander Kanta, with regard to her V2 share in the suit property. Furthermore, in case Durga Dutt had obtained a decree against Surat Ram, vide judgment and decree dated 26.4.1984, in respect of the entire suit land, again it could be said that the same was not binding on plaintiff No.1 Smt. Chander Kanta, since admittedly she was not a party to the said suit or the decree dated 26.4.1984. Since by virtue of the aforesaid agreement dated 24.3.1983 Durga Dutt defendant had not become the owner of the property, the learned courts below had rightly held that the plaintiffs and proforma defendants No.2 and 3 were joint owners of the suit land but without possession, inasmuch as defendant No.1 Durga Dutt was in possession of the suit land Furthermore, since Surat Ram had entered into the aforesaid agreement dated 24.3.1983 with Durga Dutt and had delivered possession of the suit land to him, in my opinion, the learned trial court had rightly not passed any decree for possession in favour of plaintiff No.2 and proforma defendants No.2 and 3 ( who are the successor-in-interest of Surat Ram). So far as plaintiff No.1 Smt. Chander Kanta is concerned, as referred to above. She was neither a party to the said agreement nor to the aforesaid decree and as such she being owner to the extent of Vz share, was certainly entitled to seek possession of her V2 share in the suit land. In this view of the matter, in my opinion, the courts below had rightly decreed the suit of plaintiff No.1 for possession in respect of Vz share in the suit land and no fault could be found with the same. 6. In this view of the matter, in my opinion, the courts below had rightly decreed the suit of plaintiff No.1 for possession in respect of Vz share in the suit land and no fault could be found with the same. 6. The contention of the learned counsel for the defendant-appellant that the defendant-appellant had become owner of the suit property by way of adverse possession, in my opinion, has rightly been brushed aside by both the courts below, keeping in view the facts and circumstances of the present case. Nothing has come on the record to show as to when and under what circumstances the possession of Durga Dutt over the suit land became adverse and in what manner the said possession had ripened into ownership by way of adverse possession. As referred to above, it is the case of Durga Dutt defendant himself that he had taken possession over the suit land under the agreement dated 24.3.1983. That being so, in my opinion, it cannot be said that his possession over the suit property had become adverse in any manner whatsoever. This is especially so, when nothing has come on the record to show as to since when Durga Dutt had started claiming himself to be the owner of the suit property openly, to the knowledge of the true owners, so as to constitute the plea of ownership by way of adverse possession. In the absence of any such material on the record, in my opinion, both the courts below had rightly found that the defendant-appellant had failed to prove his ownership by way of adverse possession. 7. In view of the detailed discussion above, in my opinion, no fault could be found with the findings of the courts below and the present appeal filed by defendant-appellant Durga Dutt is liable to be dismissed, especially when no question of law much less any substantial question of law arises for determination in this appeal. Hence the present Appeal is dismissed.