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2012 DIGILAW 626 (HP)

Chaudhary v. Dhani Ram

2012-09-25

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree, dated 22.01.2002, passed by the learned District Judge, Hamirpur, H.P. in Civil Appeal No. 55 of 1993, whereby the learned District Judge, Hamirpur has partly modified the judgment and decree of learned Sub Judge, 1st Class (II) in Civil Suit No. 110 of 1990, dated 01.03.1993 by up-holding the judgment and decree for the grant of permanent prohibitory injunction and setting aside the judgment and decree qua adverse possession of the plaintiff. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as “the plaintiff” for the sake of convenience) has filed a suit for permanent injunction against the respondent-defendants (hereinafter referred to as the ‘defendants’ for the sake of convenience). According to the plaintiff, the land entered in Khata No. 1 min, Khatoni No. 1 min, Khasra No. 136, measuring 6 K-12 M, as per Jamabandi for the year 1986-87, situated in Tika Bhareri, Tappa Badohag, Tehsil Nadaun, District Hamirpur was shown in the name of defendant No.1, namely, Shri Tika Maheshwar Chand. The land shown as 136/3/2 as per Tatima, measuring 12 Marlas out of the suit land was in possession of the plaintiff for the last sixty years since the time of his ancestors as owner. The plaintiff as well his ancestors have fenced the area in their possession and have planted trees such as Bamboos, Shrinh, Mango, Lemon, Galgal, Arho etc. and the plaintiff has become owner of the land shown as 136/3/2, measuring 12 marlas by way of adverse possession. In the year 1978, the plaintiff has also dug a tube well and installed a meter. The tubewell is working on the spot. The plaintiff requested the defendants not to interfere or to cause any damage to the tubewell and its machinery or cutting any valuable tree from the suit land, but the defendants are threatening to take forcible possession of the suit land. It is in these circumstances, the plaintiff has filed the suit for permanent prohibitory injunction. 3. The defendant No. 1 was though served, but he did not put in appearance in the Court despite service. Defendants No. 2 to 6 have filed the written statement and contended that the plaintiff was not in possession of any part of field No. 136/3/2. 3. The defendant No. 1 was though served, but he did not put in appearance in the Court despite service. Defendants No. 2 to 6 have filed the written statement and contended that the plaintiff was not in possession of any part of field No. 136/3/2. The villagers, especially the defendants and their ancestors have planted different kinds of trees and also bamboos on the sides of ‘nala’. It was denied that the plaintiff had been in adverse possession of 12 marlas marked 136/3/2 and has become owner thereof. According to them, the entire field No. 136 was owned and possessed by defendant No. 1 and the defendant No. 1 has sold the field to defendants No. 2 to 6 for full consideration. No tubewell was installed by the plaintiff in the year 1978. 4. The replication was filed by the plaintiff. The trial Court framed the issues on 16.01.1991. Learned Sub-Judge, 1st Class (II), Hamirpur, H.P. decreed the suit of the plaintiff on 01.03.1993. The defendants preferred an appeal before the learned District Judge, Hamirpur, H.P. The appeal was partly allowed on 22.01.2002. Hence, this Regular Second Appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law on 08.03.2002: “1. Whether the findings of the Court below on the question of the plaintiff being not the owner of the property and in any event by adverse possession are perverse and not sustainable in law? 2. Whether in view of the fact that the plaintiff was in possession of the property for the last more than 40/45 years and had planted fruit and other trees and raised a tube well to the knowledge of the owners, a clear case of open, hostile and exclusive and continuous possession for a period over 12 years was made out and District Judge erred in denying the relief of declaration of ownership? 3. Whether the findings of District Judge are incorrect as he ignored the material evidence and such findings are not sustainable in law? 6. Mr. Rajnish K. Lall, learned vice counsel for the appellant has supported the judgment and decree passed by the learned Sub Judge, 1st Class (II), dated 01.03.1993. According to him, the plaintiff has duly proved that he has become owner of the suit land by way of adverse possession. 7. Mr. Neeraj Gupta, learned counsel for the respondents 8. 6. Mr. Rajnish K. Lall, learned vice counsel for the appellant has supported the judgment and decree passed by the learned Sub Judge, 1st Class (II), dated 01.03.1993. According to him, the plaintiff has duly proved that he has become owner of the suit land by way of adverse possession. 7. Mr. Neeraj Gupta, learned counsel for the respondents 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 10. Plaintiff, while appearing as PW-1, has testified that he was in possession of the suit land since the time of his forefathers and he considers himself now to be true owner of the suit land. According to him, he has also planted orchard on the suit land. He has dug a tube well. According to him, the defendants have raised objection to his possession. 11. PW-2, Updesh was the Secretary of Gram Panchayat, Kangu. He deposed that receipts, Ex. P-2, Ex. P-3, Ex. P-4 and Ex. P-5 were issued by him. These receipts were read over and explained to the witnesses and Sita Ram has signed the same after admitting the contents of the same. The other witness was Lok Ram. Vide these receipts, Chaudhary, Gidu and Roshan Lal have taken the money to the tune of `2500, 3000 and 3000/-, respectively. PW-3, Ram Lok has deposed that the suit land was in possession of the plaintiff for the last 40-45 years and he has raised an orchard. He has admitted his signatures on receipts Ex. P2 to Ex. P5. 12. PW-4, Jaswant Singh, Patwari has produced the record. PW-5, Tulsi Ram, Kanungo has proved the report Ex. PW-5/A, submitted by him to Tehsildar, Nadaun. PW-6, Balwant Singh, U.D.C., H.P.S.E.B., Dhaneta has also produced the record about installation of electricity meter in the tubewell of the plaintiff and proved the bill Ex. PW-6/A and the receipts Ex. PW6/B to Ex. PW-6/F. PW-7, Chaudhary Ram, PW-8, Jindu Ram and PW-9 Roshan Lal have deposed that they were engaged by the plaintiff for execution of the construction work of the tubewell and the shed/room and they had received a sum of `2500, 3000 and 3000/-, respectively for execution of such work. 13. PW-6/A and the receipts Ex. PW6/B to Ex. PW-6/F. PW-7, Chaudhary Ram, PW-8, Jindu Ram and PW-9 Roshan Lal have deposed that they were engaged by the plaintiff for execution of the construction work of the tubewell and the shed/room and they had received a sum of `2500, 3000 and 3000/-, respectively for execution of such work. 13. Defendant No. 6, Rattan Chand has appeared as DW has supported the judgment and decree, dated 22.01.2002, passed by the learned 1st Appellate Court. 1. According to him, the suit land was a nala and adjoining thereto, there exists the land of the plaintiff bearing Khasra No. 137, in which, the plaintiff has constructed the tubewell. But, in October, 1990, he has demolished the same and constructed the same in Khasra No. 136. According to him, the tubewell in Khasra No. 136 was in existence for the last 2-3 years. He also stated that it was a Well. The land is stated to be purchased by the defendants from defendant No. 1. 14. DW-2, Raghubir Singh has deposed that the suit land previously was owned by defendant No. 1 and the same has since been purchased by the defendants. According to him, the plaintiff neither planted trees thereon nor raised the construction of the well. However, the well was in existence from the very beginning on the suit land. It was denied that the plaintiff has constructed the Well in the year 1978. 15. DW-3, Kailash Chand, Pradhan, Gram Panchayat Jhareri has deposed that the tube-well of the plaintiff was in existence over his own land, on which he used to sow wheat etc. According to him, now the tubewell has been shifted by the plaintiff to a nala. It has come in his cross-examination that he has constructed a tubewell about 7-8 years ago and the plaintiff’s tube well is also of that type. DW-4, Shri Subhash Chand has deposed that the tubewell of the plaintiff was not at that place where it was constructed initially. It was constructed over Khasra No. 137. 16. The plaintiff has placed strong reliance on Ex.–PB, copy of Khasra Girdabri. According to the entries made in Khasra Girdabri on 23.04.1990, there exists ‘gain mumkin kuan’ over a portion of the suit land, measuring 2 marlas. These entries do not pertain to the tubewell but a well. It was constructed over Khasra No. 137. 16. The plaintiff has placed strong reliance on Ex.–PB, copy of Khasra Girdabri. According to the entries made in Khasra Girdabri on 23.04.1990, there exists ‘gain mumkin kuan’ over a portion of the suit land, measuring 2 marlas. These entries do not pertain to the tubewell but a well. The plaintiff has not placed any revenue record to prove that since when he or his ancestors were in possession of the suit land. Now, as far as the report of PW-5, Tulsi Ram, Kanungo Ex. PW-5/A, dated 16.8.1990, is concerned, the same cannot be believed. He has neither measured the land on the spot nor carried out the demarcation of the suit land. According to the copy of jamabandi for the year 1986-87, Ex. D-1, the tubewell of the plaintiff was in existence over the suit land bearing Khasra No. 137. The presumption of truth is attached to these entries. The entries made in Ex.–D1 have not been rebutted by the plaintiff. Electricity bills, Ex. PW-6/A to Ex. PW-6/F would also not advance the case of the plaintiff, since these do not establish where the tubewell was in existence. 17. The plaintiff has failed to prove the basic ingredients of adverse possession. He ought to have disclosed the commencement of the period and how his possession has become adverse to the true owner. The possession must be peaceful, open and continuous and it must be actual, visible, exclusive, hostile and continuous for over the statutory period. The person who sets up the plea of adverse possession, must show on what day he came into possession and what was the period of such adverse possession. In the instant case, as discussed hereinabove, neither the plaintiff nor the witnesses produced by him have disclosed the date of commencement of adverse possession. Learned 1st appellate Court has correctly appreciated the oral as well as documentary evidence, as far as the plea of adverse possession raised by the plaintiff was concerned. Consequently, there is no substantial question of law involved in this Regular Second Appeal. 18. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.