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2012 DIGILAW 667 (HP)

Moti Ram v. Ranbir Singh

2012-10-03

KULDIP SINGH

body2012
Judgment Kuldip Singh, Judge. 1. The defendants No. 1 to 4 have assailed the judgement, decree dated 25.4.2001 passed by learned Addl. District Judge, Shimla in Civil Appeal No. 36-S/13 of 1999 decreeing the suit of respondent No. 1 for permanent prohibitory injunction by reversing the judgement, decree dated 7.4.1999 passed by learned Sub Judge Ist Class, Court No. 3, Addl. Charge Court No.2, Rohroo, Distt. Shimla in Civil Suit No. 146-1 of 1992. 2. The facts in brief are that respondent No. 1 had filed suit for permanent prohibitory injunction against appellants, who were impleaded defendants No. 1 to 4. The respondents No. 2 and 3 were proforma defendants No. 5 and 6 in the suit. The appellants No. 2 and 3 are the sons and appellant No. 4 is the wife of Moti Ram appellant No.1. 3. The pleaded case of respondent No.1 is that he purchased land comprised in khewat No. 224, khatauni No. 359, khasra Nos. 576/3, measuring 143.00 square decimeters, situated in Notified Area Committee, Rohroo from respondent Nos. 2 and 3 and mutation was attested in favour of respondent No.1 on 15.1.1987. The appellants made overtacts in the last one year and threatened to interfere in the possession of respondent No.1 over the suit land. The appellants are threatening to interfere over the suit land by stacking heaps of grass over the suit land. 4. The suit was contested by appellants by filing written statement. They took the preliminary objections of maintainability in respect of land comprised in khasra No. 576/3/1. It has been pleaded that the alleged vendor was not in possession of said land nor respondent No. 1 ever put in possession of said land, hence suit for injunction without possession is not maintainable. Khasra No. 576/3/1 is owned and possessed by the appellants over which the appellants have planted trees for the last more than twenty-two years. The appellants have been stacking fuel wood and heaps of grass over this parcel of land. There is permanent boundary in the shape of barbed wire at the spot. The respondent No.1 had filed false complaint under sections 145, 107 Cr.P.C., which has been dismissed by Sub Divisional Magistrate, Rohroo. The possession of the suit land remained with the appellants. 5. The replication was filed. On the pleadings of the parties, the following issues were framed: 1. The respondent No.1 had filed false complaint under sections 145, 107 Cr.P.C., which has been dismissed by Sub Divisional Magistrate, Rohroo. The possession of the suit land remained with the appellants. 5. The replication was filed. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is the owner in possession of the suit land? OPP. (Viz. Khasra No. Hall 576/3 khewat No. 244, Khatauni No. 359). 2. Whether the defendants are interfering with possession of the plaintiff? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff is not entitled to the discretionary relief of injunction to the suppression of material facts? OPD. 5. Relief Issue No. 1 was answered partly in affirmative, issue No. 3 in affirmative, the issues No. 2 and 4 were answered in negative and the suit was dismissed on 7.4.1999. The respondent No. 1 filed an appeal, which has been allowed by learned Addl. District Judge on 25.4.2001, the judgement, decree dated 7.4.1999 of the trial court have been set-aside. The appellants have been restrained by permanent prohibitory injunction with respect to land comprised in khewat No. 224, khatauni No. 359, khasra No. 576/3 measuring 143 square decimeters, situated within the Notified Area Committee, Rohroo, hence the second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the findings as recorded by learned lower appellate court are based upon conjectures and surmises and since reliance has been placed on documents Ex. PX, copy of khatauni and Ex. PY copy of mutation, therefore, in the absence of proof to the title of plaintiffs, suit could not be decreed? 2. Whether for want of getting the boundaries determined before filing of suit, claim of plaintiff is vague and no reliance can be placed thereon? 6. I have heard the learned counsel for the parties and have also gone through the record. On behalf of the appellants, it has been submitted that learned Addl. District Judge has erred in relying Ex. PX copy of khatauni and Ex. PY copy of mutation, which are not the documents of title. There is dispute of boundaries, which has not been identified. The claim of respondent No. 1 is vague. The learned Addl. District Judge has erred in decreeing the suit after setting-aside well reasoned judgement of the trial court. PX copy of khatauni and Ex. PY copy of mutation, which are not the documents of title. There is dispute of boundaries, which has not been identified. The claim of respondent No. 1 is vague. The learned Addl. District Judge has erred in decreeing the suit after setting-aside well reasoned judgement of the trial court. The submission has been made for acceptance of the appeal. 7. The learned counsel for respondent No. 1 has submitted that respondent No. 1 has fully proved his case. The respondent No. 1 is in settled possession of the suit land. The suit has been filed on the basis of settled possession of respondent No.1, who otherwise is the owner of suit land. The respondent No. 2 Dina Nath, who was examined by the appellants as DW 4 has proved the title of respondent No. 1 over the suit land. The spot inspection note carried by the trial court indicates that on demarcation carried out from North-East side and from Southern side, the difference of boundary is just 2.80 metres. It has been submitted that learned Addl. District Judge has rightly appreciated the material on record. The view taken by the learned Addl. District Judge emerges from the evidence on record which cannot be said perverse, hence no fault can be found with the impugned judgement, decree. 8. The aforesaid substantial questions of law can be conveniently discussed collectively , therefore, both the substantial questions of law are taken up for determination. Ex.PY mutation No.10 of sale of khasra No. 576/3 measuring 143 square decimeters by Jog Nath, Dina Nath in favour of Ranbir Singh has been attested on 15.1.1987. In Ex. PX old khasra No. 1772/1649/1149/1102/107min has been given new khasra No. 576. Ex. PY mutation No. 10 dated 15.1.1987 indicates that vide sale deed No. 83/86 dated 17.6.1986 khasra No. 1772/1649/1149/1102/107/104 measuring 4 biswas, new khasra No. 576/3 measuring 143 square decimeters has been sold by Jog Nath, Dina Nath in equal share in favour of Ranbir Singh. On Ex. PY tatima of khasra No. 1772/1649/1149/1102/107/104 has also been prepared. 9. In the written statement, it has been pleaded that land comprised in khasra No. 576/3/1 measuring 53 square decimeters is in possession of the defendants. There are apple trees of more than 22 years old. On Ex. PY tatima of khasra No. 1772/1649/1149/1102/107/104 has also been prepared. 9. In the written statement, it has been pleaded that land comprised in khasra No. 576/3/1 measuring 53 square decimeters is in possession of the defendants. There are apple trees of more than 22 years old. The defendants for the last more than 40 years stacking fuel wood and heaps of grass over this piece of land. The khasra No. 576/3/1 is owned and possessed by the defendants. There is no specific assertion in the written statement that respondent No. 1 has not purchased the suit land from respondents No 2, 3 and mutation of sale has not been attested in favour of respondent No.1. 10. The learned counsel for the appellants has submitted that copy of khatauni Ex. PX and mutation Ex. PY are not the documents of title. The learned counsel for the appellants has relied Bal Krishan & ors. Vs. Surinder Kumar & ors. Latest HLJ 2011 (HP) 40 on the point that khataunis are not the record of right. Navalshankar Ishwarlal Dave and another vs. State of Gujarat and others AIR 1994 SC 1496 has been relied on the point that mutation is not document of title. The aforesaid judgements have been relied in support of the submission that since khatauni and mutation are not the record of right, therefore, no presumption of truth is attached to Ex. PX showing Jog Nath, Dina Nath owners in possession of the suit land and after them respondent No. 1 is owner in possession of the suit land. Similarly respondent No. 1 cannot take any advantage of mutation Ex. PX. 11. DW 1 Moti Ram has stated that he does not know on khasra No. 576/3 measuring 143 square decimeters respondent No. 1 is in possession. He has stated that real sister of Dina Nath and Jog Nath is his wife. DW 4 Dina Nath has stated that land in dispute was given to Ranbir by him. In cross-examination, he has stated that his two real sisters are married to Moti Ram. He has stated that 143 square decimeters area has been mentioned in the sale deed. DW 6 Kuldip Singh has stated that Ranbir Singh has purchased the land from Jog Nath and Dina Nath vide registered sale deed and the possession was handed over to respondent No. 1. 12. He has stated that 143 square decimeters area has been mentioned in the sale deed. DW 6 Kuldip Singh has stated that Ranbir Singh has purchased the land from Jog Nath and Dina Nath vide registered sale deed and the possession was handed over to respondent No. 1. 12. The respondent No. 1 has not placed on record the sale deed vide which he purchased the suit land from Jog Nath, Dina Nath respondents No. 2 and 3. The civil dispute is to be decided on the basis of preponderance of evidence. Ex. PX and Ex. PY support the case of respondent No.1, so also the oral evidence led even by the appellants. In the written statement, the appellants have not pleaded how they have acquired title over the suit land. There is no plea and issue of adverse possession. The appellants have pleaded that they are in possession of the suit land for the last over 40 years. They have stacked fuel wood and heaps of grass over the land bearing khasra No. 576/3/1 measuring 53 square decimeters. 13. In Fram’mji Cursetji, (Original defendant), vs. Goculda’s Ma’dhowji, (Original Plaintiff) ILR 1891 Bom. 338, the defendant claimed that his predecessors and himself had been for many years in adverse possession of the piece of land; that they had erected and for many years maintained sheds upon it for cattle and goats and a hut for a `ghariwallah’. It has been held that people in this country are constantly encroaching on their neighbours, under more or less similar circumstances to those existing in this case. A bit of land is of no present use to its owner, and happens to be of use for various temporary purposes to an adjoining land-holder and he accordingly so uses it. In this country such a user excites no particular attention. It is neither meant to denote, nor understood as denoting on the one side or the other a claim to the ownership of the land. Where such and no more is the case, it would be altogether wrong to hold that a claim to title by adverse possession has been made out. 14. In Mt. It is neither meant to denote, nor understood as denoting on the one side or the other a claim to the ownership of the land. Where such and no more is the case, it would be altogether wrong to hold that a claim to title by adverse possession has been made out. 14. In Mt. Gulab Devi vs. Monji Ram and another AIR 1919 Lahore 156, it has been held that where a person using the site as a `convenient adjunct’ such user in a village however cannot be regarded as an indication of an assertion that the land so used is the property of the person so using it. 15. In Mangal Singh and others vs. Ali Sher and others AIR 1930 Lahore 303, it has been held that the proposition of law is firmly established that in the case of waste land possession is presumed to be with the owner, and the mere fact that the owner, has allowed his land to remain waste does not amount to a discontinuance of possession. Moreover, even if the plaintiffs ceased to possess a plot of land it does not follow that it came into the possession of the defendants. 16. In Mahant Labha Singh vs. The Municipal Committee of Amritsar 1934 PLR 251, it has been held that land was lying waste and mere tying of cattle there or grazing on the plot would not necessarily amount to adverse possession. It is true that it was entered in the revenue papers that Mst. Karam Kaur did not pay rent on account of her possession from 1911-12 onwards, but that in itself would not amount to setting up an adverse claim to the knowledge of the committee, the land being waste land at that time. 17. In Kaladhari Singh vs. Jibachh Mishra and others AIR 1939 Patna 399, it has been held if therefore, a small piece of land of no present use to the owner but convenient in many other ways to the neighbour is made use of by the latter by doing on it acts of possession all however of a flimsy and temporary character such as stocking straw and logs of wood, building sheds and removing earth therefrom without objection for more than 12 years, such a user excites no particular attention. It is neither meant to denote, nor understood as denoting on the side of the other a claim to the ownership of the land. 18. In Mahadev Malhar Lad vs. Mohamadrasul Hatelsaheb Shaik AIR 1971 Mysore 139, it has been held that acts alleged by the defendant that he has put up a bamboo fence and a kalli fence. He has also constructed a urinal on the open site. The courts below came to the conclusion that these acts are of such temporary nature that they cannot be construed as creating a title by adverse possession. The lower appellate court has referred to a series of decisions holding that such acts done either singly or collectively do not create a right in favour of a person to claim title to the property by adverse possession. The conclusion arrived at by the courts below was upheld by the High Court. 19. On the basis of preponderance of evidence, the respondent No. 1 has established his title and possession over the suit land. The stacking of fuel wood and heaps of grass and nothing more would not constitute the possession of appellants over the suit land. The possession follows title. There was heavy burden on the appellants to prove their possession on the suit land. They are claiming possession on a part of the suit land for the last more than 40 years, but there possession is not recorded anywhere. DW 4 has stated that he has given the suit land to respondent No. 1. The trial court had also inspected the spot and observed that if demarcation is taken from two sides, then difference between the boundaries is 2.80 metres. The learned lower appellate court on the basis of material on record has rightly concluded that respondent No. 1 is owner in possession of the suit land. The view taken by the learned Addl. District Judge is in consonance with the evidence on record. There is no perversity in the impugned judgement, decree. The suit is based upon specific khasra number, therefore, identification of suit land by way of demarcation was not required. There is no merit in the appeal. The substantial questions of law No. 1 and 2 are decided against the appellants. 20. In view of above, the appeal fails and is accordingly dismissed with no order as to costs.