Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 186 (HP)

Thakur Dass v. State Of Himachal Pradesh

2012-04-12

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. - This appeal has been directed against judgment, decree dated 8.11.2002 passed by learned District Judge, Mandi in Civil Appeal No. 94 of 2000, setting aside judgment, decree dated 31.10.2000 passed by learned Sub Judge Ist Class, Court No.III, District Mandi in Civil Suit No.204/98. 2. The facts in brief are that Tara Chand predecessor of the appellants had filed a suit for declaration and injunction that he had become owner by adverse possession of land comprised in khasra Nos.193(old), 195/1(new) and 19 4(old), 196(new), measuring 6-6-0 bighas, situated in Mohal Surah/63, illaqua Baniyur. 3. It has been alleged that Karam Singh father of Tara Chand after taking possession made fields and constructed cow-shed upon the suit land. Karam Singh remained in peaceful possession and enjoyed the suit land till he died in the year 1967. Thereafter the suit land came in peaceful , open, uninterrupted and hostile possession of Tara Chand in December, 1967 to the knowledge of respondents. Tara Chand had been doing overt acts over the suit land in his own right to the denial of the title of the State of Himachal Pradesh. Tara Chand had acquired title over suit land by adverse possession in December, 1997. The revenue entries to the contrary showing the State of Himachal Pradesh as owner and Karam Singh in column of possession are wrong, illegal, null and void. 4. It has been alleged that respondents through their subordinate revenue officials threatened to dispossess Tara Chand from the suit land in the Ist week of January, 1998 and therefore, the suit was filed for declaration and permanent prohibitory injunction. 5. The suit was contested by respondents by filing written statement in which pre liminary objections of maintainability, locus standi, non-joinder an d mis-joinder of necessary parties, notice under Section 80 CPC, jurisdiction, cause of action were taken. On merits, it has been stated that Karam Singh father of Tara Chand had encroached upon the suit land during settlement. The Settlement Department initiated encroachment proceedings against Karam Singh and he was ejected from the suit land vide order dated 22.3.1971 of the Settlement Collector. Tara Chand never remained in possession of the suit land. The adverse possession of Tara Chand on suit land since 1967 has been denied. The jurisdiction of the Court is barred under Sections 163, 171 of the Himachal Pradesh Land Revenue Act, 1954. Tara Chand never remained in possession of the suit land. The adverse possession of Tara Chand on suit land since 1967 has been denied. The jurisdiction of the Court is barred under Sections 163, 171 of the Himachal Pradesh Land Revenue Act, 1954. The respondents prayed for dismissal of the suit. 6. The replication was filed. On the pleadings of the parties, the following is sues were framed:- (i) Whether the plaintiff has become owner of the suit land by way of adverse possession as alleged? OPP (ii) Whether the suit is not maintainable in the present form? OPD (iii) Whether the plaintiff has no locus standi to file the present suit ? OPD (iv) Whether the suit is bad for non-joinder and misjoinder of necessary parties? OPD (v) Whether a valid notice under Section 80 C.P.C. has not been received up on the State? OPD (vi) Whether the court has no jurisdiction to try the present suit? OPD (vii) Whether the plaintiff has no cause of action? OPD (viii) Relief. The issue No.1 was answered in affirmative, issues No.2 to 7 in negatives and the suit was decreed by learned Sub Judge on 31.10.2000. In appeal on 8.11.20 00, the learned District Judge has held that after 27.6.1989 the jurisdiction to determine such question of adverse possession is with the Revenue Officer and not with the civil Court. The suit was filed in 1998; the jurisdiction of the civil Court was clearly barred. The learned District Judge set aside the judgment, decree dated 31.10.2000 of the learned trial Court. Tara Chand died during the pendency of the appeal and his legal representatives were brought on record. The second appeal has been admitted on following substantial questions of law:- 1. Whether the Id. Lower Appellate Court has exercised jurisdiction which was not lawfully vested in him by dismissing the suit for want of jurisdiction? 2. Whether the findings of t he Lower Appellate Court is vitiated for want of proper appreciation and consideration of the pleadings and evidence on record? 7. Heard and perused the record. The learned counsel for the appellants has submitted that learned District Judge has erred in dismissing the suit on the grounds that civil Court has no jurisdiction to determine the question of adverse possession after 27.6.1989 and jurisdiction to determine such question is with the revenue officer. 7. Heard and perused the record. The learned counsel for the appellants has submitted that learned District Judge has erred in dismissing the suit on the grounds that civil Court has no jurisdiction to determine the question of adverse possession after 27.6.1989 and jurisdiction to determine such question is with the revenue officer. It has been submitted that Ex.DA in no sense can be termed as ejectment order against Karam Singh father of Tara Chand predecessor of appellants. Ex.DA suffers from several defects, it has been passed without considering the case of Karam Singh. In any case Karam Singh had died somewhere in the year 1967 and Ex.DA was passed against Karam Singh when he had already died, Ex.DA is nullity being passed against the dead person. The appellants have proved their adverse possession through their predecessor on the basis of record of the respondent s. It has been submitted that unauthorized possession of Tara Chan d on the suit land is enough to prove his adverse possession. The learned counsel for the appellants has relied State of Himachal Pradesh v. Khazana Ram, 1999 (1) S.L.J. 174. The submission has been made that trial Court has rightly appreciated the case of the appellants but learned District Judge has misconstrued, misinterpreted the material on record. Lastly, the learned counsel for the appellants has submitted that appellants are in possession of the suit land, they cannot be evicted from the suit land except by following due process of law. The learned Addl. Advocate General ha s submitted that Tara Chand was not in possession of the suit land, his father Karam Singh was ejected from the suit land vide Ex.DA. She has supported the impugned judgment, decree and ha s further submitted that the appellants have miserably failed to prove adverse possession or possession on the suit land. 8. The substantial questions of law No.1 and 2 are taken up collectively for determination. It is not necessary to go into the question of jurisdiction when the appeal itself can be decided on merits. The suit was filed by Tara Chand. In the plaint it has been stated that Karam Singh father of Tara Chand came in possession of suit land in October, 1964, he made fields and constructed a cow- shed upon the suit land. He peacefully possessed and enjoyed the suit land till his death in the year 19 67. The suit was filed by Tara Chand. In the plaint it has been stated that Karam Singh father of Tara Chand came in possession of suit land in October, 1964, he made fields and constructed a cow- shed upon the suit land. He peacefully possessed and enjoyed the suit land till his death in the year 19 67. In the plaint, it has been pleaded that Tara Chan d came in peaceful, op en uninterrupted and hostile possession of the suit land in December, 1967 to the knowledge of State of Himachal Pradesh and its officials after the death of father of Tara Chand. It has been pleaded that Tara Chand had acquired title of the suit land by adverse possession in December, 1997. The revenue entries to the contrary showing the State of Himachal Pradesh as owner and the father of Tara Chand in the column of possession are wrong, illegal, null and void. In the plaint Tara Chand had not pleaded tagging of his alleged adverse possession with the alleged adverse possession of hi s father Karam Singh. In fact in the plaint there is no plea that Karam Singh father of Tara Chand was in adverse possession of the suit land during his life time. 9. Tara Chand while appearing as PW-1 has stated that his father Karam Singh, thirty six years ago in the month of Kartik had taken possession of the suit land. The statement of PW-1 was recorded on 8.6.2000. Karam Singh died three years after taking possession of the suit land. After the death of his father he came in possession of the suit land and thereafter his possession continued on the suit land. He is in possession of the suit land for the last thirty three years. He has become owner of the suit land. The Government is aware of his possession. In cross-examination he has stated that about two years ago he came to know that Government is owner of this land. 10. The adverse possession is required to be pleaded as well as proved. Tara Chand in his statement has no t uttered a word regarding his overt acts on the suit land or his adverse possession thereon. On the contrary he ha s stated that about two years ago he came to know that State is owner of the suit land. The adverse possession is required to be pleaded as well as proved. Tara Chand in his statement has no t uttered a word regarding his overt acts on the suit land or his adverse possession thereon. On the contrary he ha s stated that about two years ago he came to know that State is owner of the suit land. This demolishes the case of the Tara Chand of adverse possession on the suit land. Tara Chand has claimed possession on the suit land for the last thirty three years but he has not filed even a single document showing his possession on the suit land. The respondents have taken the stand that at one point of time Karam Singh father of Tara Chand was in possession of suit land but he was evicted vide Ex.DA. Tara Chand never came in possession of the suit land. 11. PW-2 Dalip Kumar is the Patwari and he has proved Missal Haquiat Ex.PW-2/A and jamabandi for the year 1996-97 Ex.PW-2/B of the suit land. PW-3 Katku Ram has given general statement that Tara Chand is in possession for t he last thirty years. He has also not stated about hostile, animus and adverse possession of Tara Chand on the suit land. Ex .DB is the copy of Girdawari of the suit land for the year 1996-97. In Ex.PW-2/A, Ex.PW-2/B and Ex.DB Karam Singh has been shown in possession of the suit land. Accordingly to Tara Ch and, Karam Singh died in the year 1967, therefore, the entries in favour of Karam Singh showing him in possession of the suit land in Ex.PW-2/A, Ex.PW-2/B and Ex.DB are wrong and appellants cannot take any benefit of this entry. 12. There is no documentary evidence on record to show that Tara Chand during his life time remained in possession of the suit land. Therefore, State of Himachal Pradesh v. Khazana Ram (supra) is not applicable. Tara Chand has miserably failed to prove his possession what to talk adverse possession on the suit land. The trial Court completely misconstrued, misinterpreted the evidence on record in decreeing the suit. The learned District Judge has dismissed the suit on jurisdiction but on merits appellants have miserably failed to prove their possession on the suit land. There is no merit in the appeal. The substantial questions of law Nos. 1 and 2 are accordingly decided against the appellants. 13. The learned District Judge has dismissed the suit on jurisdiction but on merits appellants have miserably failed to prove their possession on the suit land. There is no merit in the appeal. The substantial questions of law Nos. 1 and 2 are accordingly decided against the appellants. 13. No other point was urged. 14. The result of above discussion, appeal fails and is accordingly dismissed with no order as to costs.