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2012 DIGILAW 193 (HP)

Amar Chand, Shri Sunder Singh v. Gorkhi Devi

2012-04-16

SANJAY KAROL

body2012
JUDGEMENT Justice Sanjay Karol, J. (Oral) Smt. Gorkhi (plaintiff) filed a suit for possession of the suit premises against defendants Sh. Amar Chand and Sh. Sunder Singh in terms of judgment and decree dated 27.7.2001 passed in Civil Suit No.11/2000, titled as Smt. Gorkhi vs. Amar Chand and another. The Trial Court decreed the suit in following terms:- “Judged in the light of my findings on the forgoing issues, and the factum that the plaintiff has led no iota of-evidence on this file to prove her contentions that how she is entitled to claim the mesne-profit of Rs. one-hundred per-month w.e.f. 1/1/2000 from the defendant. So, therefore, the suit of the plaintiff is partly-decreed with no orders as to the costs, for getting vacant- possession of the suit-property, by way of ejectment of the defendants, and suit of the plaintiff is also decreed for getting recovery of arrears of-rent to the tune of Rs. 1800/- in total, from the defendants, but her relief-claiming-for mesne-profit to the tune of Rs. 100/- per month w.e.f. 1/1/2000 from the defendants, for the use and occupation of the suit-property by them is- dismissed. Decree-sheet be prepared-accordingly. This file, after it’s due completion, be consigned to the General-Record-Room.” 2. The said judgment and decree stand affirmed by the learned District Judge, Kullu vide its judgment and decree dated 5.3.2002 passed in Civil appeal No.88/200 1, titled as Amar Chand and another v. Smt. Gorkhi Devi. 3. Courts below have concurrently held the plaintiff to be owner of the suit land. Defendant’s plea of adverse possession has been concurrently turned down by the Courts below with a further direction to them to hand over possession of the suit premises to the plaintiff. 4. On 13th September, 2002, present appeal was admitted on the following substantial questions of law:- “(1) Whether the judgment and decree of the trial Court and the first appellate Court was passed on evidence which was beyond the scope of the pleadings of the plaintiff and not admissible in law ?(2)Whether the findings of the Courts below that plaintiff was the owner of the disputed property are dehors the evidence ? (3)Whether the plea of the defendants that they were in adverse possession of this land was not put to issue and therefore the defendants are materially prejudiced ?(4)Whether the Courts below mis-applied the provisions of the Transfer of Property Act and General Clauses Act in holding that the notice served by the plaintiff on the defendants under Section 106 of the Transfer of Property Act was validly served ? 5. Having perused the record, I am of the considered view that no question of law, much less substantial question of law arises for consideration in the present appeal. 6.Defendants have neither pleaded nor effectively proved their plea of adverse possession. There is no reason to interfere with such findings returned by the Courts below. It is a settled preposition of law that defendant has to plead and establish from when his possession over the suit land is hostile which fact is in the knowledge of the rightful owner. This fact they have failed to do so. 7. Findings returned by the learned Trial Court with regard to the plaintiff’s ownership and legal rights are based on ocular and documentary evidence. On this aspect, exchange deed (Ex.PW2/B) and Khasra Girdawari (Ex.PA) establishes the said fact, apart from the uncorroborated testimonies of PW-2 (Sh. Chharing Ram), PW-3 (Sh. Jindu Ram) and plaintiff (Smt. Gorkhi Devi). 8. Thus, it cannot be said that Courts below erred in appreciating the material placed on record by the parties or have passed the judgment on the basis of inadmissible evidence. The question of applicability of provisions of the General Clauses Act, in the given facts, does not arise for the simple reason that defendant was served with adequate and sufficient notice, in accordance with the provisions of the Transfer of Property Act, and as such he was bound to handover possession of the suit premises once contractual rights existing between the parties had come to an end. With the aforesaid observations, present appeal stands dismissed. Disposed of as such. Pending application(s), if any, also stands disposed of.