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2013 DIGILAW 269 (HP)

OM PARKASH v. KULBHUSHAN

2013-04-08

RAJIV SHARMA

body2013
JUDGMENT RAJIV SHARMA, J. 1. THIS Regular Second Appeal is directed against the judgment and decree, dated 04.08.2008, passed by the learned District Judge, Kangra at Dharamshala, in Civil Appeal No. 38- P/XIII-2000. 2. 'KEY facts' necessary for adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as "the plaintiffs" for the sake of convenience) has filed a suit for permanent prohibitory injunction against the predecessor-in-interest of the appellants-defendants, namely, Saran Dass (hereinafter referred to as "the defendant" for the sake of convenience), on the allegations that the plaintiffs and other co- sharers had been joint owners in possession of the land described in Khata/Khatauni No. 65/209, Khasra No. 624, measuring 0-05- 39 hectares, situated in revenue estate and Mouza Rajpur, Tehsil Palampur. The defendant has no right, title or interest in the suit land. There was village common land adjacent to the suit land. The defendant has been allotted a piece of village common land. He occupied the land allotted to him and started interfering with the ownership and possession of the suit land. The defendant wanted to encroach upon the suit land. He requested not to do so. It is in these circumstances, the plaintiffs have filed the suit. The suit was contested by the defendant. According to the defendant, he had been allotted a piece of village common land described in Khasra No. 623/1 in the revenue estate and Mouza Rajpur in 1976. He was handed over the possession of the land allotted to him in 1976 by field staff of the Revenue Department. The defendant had deposited the dues of the Government on 11.08.1977. He has taken possession of the suit land in 1976. He has developed the same and planted fruit bearing and non-fruit bearing plants on the suit land. According to him, he was in open, continuous, uninterrupted, peaceful and hostile possession of the suit land for more than 12 years. According to the defendant, he has acquired the rights of ownership of the suit land by way of adverse possession. 3. THE replication was filed by the plaintiff. The learned Sub Judge, 1st Class-II, Palampur, District Kangra, H.P. framed the issues on 08.12.1993 and additional issues on 09.01.1997. The suit of the plaintiffs for permanent prohibitory injunction was dismissed. According to the defendant, he has acquired the rights of ownership of the suit land by way of adverse possession. 3. THE replication was filed by the plaintiff. The learned Sub Judge, 1st Class-II, Palampur, District Kangra, H.P. framed the issues on 08.12.1993 and additional issues on 09.01.1997. The suit of the plaintiffs for permanent prohibitory injunction was dismissed. However, the suit for joint possession qua Khata No. 65, Khatauni No. 209, Khasra No. 624, land measuring 0-05-39 hectares, situated in Mohal Rajpur, Tehsil Palampur, District Kangra (H.P.), was decreed in favour of the plaintiffs and against the defendant. The defendant preferred an appeal before the learned District Judge, Kangra at Dharamshala. The same was dismissed by the learned District Judge on 04.08.2008. Hence, this Regular Second Appeal. 4. THIS Regular Second Appeal was admitted by this Court on the following substantial questions of law on 25.02.2011: "1. Whether the learned Lower Appellate Court committed mistake in law while not granting opportunity to the appellants to prove the certificate of allotment of land under the provisions of H.P. Village Common Lands Vesting and Utilization Scheme, 1975 and its date in accordance with law, when the application under Order 41, Rule 27 C.P.C. of the appellants was allowed by the Ld. Court itself? 2. Whether the Ld. Court below failed to observe the effect of allowing the application under Order 6, Rule 17 of C.P.C. moved by the Appellants? 3. Whether the Ld. Court below rightly passed the impugned judgment and decree in law by not discussing both the applications i.e. application under Order 6, Rule 17 and application under Order 41, Rule 27 of the Code of Civil Procedure? Mr. Sanjay Dutt Vasudeva, learned counsel for the appellants has vehemently argued that the learned First Appellate Court has not taken into consideration the fact of allowing the application under Order 6 Rule 17 of the Code of Civil Procedure and application preferred by the appellants under Order 41 Rule 27 of the Code of Civil Procedure. He then contended that his client was in possession of the suit land for more than 12 years and he has proved all the necessary ingredients of adverse possession. 5. MR. Rajnish K. Lall and Mr. Mukul Sood, learned counsel for respondents No. 6 and 7 have supported the judgments passed by both the Courts below. 6. He then contended that his client was in possession of the suit land for more than 12 years and he has proved all the necessary ingredients of adverse possession. 5. MR. Rajnish K. Lall and Mr. Mukul Sood, learned counsel for respondents No. 6 and 7 have supported the judgments passed by both the Courts below. 6. I have heard the learned counsel for the parties and gone through the pleadings carefully. 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. 7. IT would be pertinent to state at this stage that the defendant has also amended the written statement before the learned trial Court as well. The defendant has moved an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure on 1st August, 2008 before the 1st Appellate Court. He has prayed for substitution of following paragraph in reply to paragraph No. 1 of the plaint: "1. Reply to para 1 of the plaint: This para relates to revenue entries of which the replying defendant has no knowledge hence, denied. However, the defendant is in possession of the suit land since 1976 i.e. 11.8.1977 date of deposit of Govt. dues including land revenue rates and CESSES from the date he takes possession of the land." 8. THE amended written statement was also filed alongwith the application. The application was allowed by the learned District Judge on 02.08.2008, subject to cost of Rs.1,000/-. It was stated by the learned counsel appearing on behalf of the plaintiffs that replication to the amended written statement was not required to be filed. Similarly, the defendant has also moved an application under Order 41 Rule 27, read with Section 151 of the Code of Civil Procedure on 1st August, 2008. This application was also allowed by the learned District Judge on 02.08.2008. Additional evidence sought to be produced by the defendant was admitted. No rebuttal was produced by the plaintiffs. Thereafter the arguments were heard and the matter was ordered to come up for 04.08.2008. This application was also allowed by the learned District Judge on 02.08.2008. Additional evidence sought to be produced by the defendant was admitted. No rebuttal was produced by the plaintiffs. Thereafter the arguments were heard and the matter was ordered to come up for 04.08.2008. It would be apt to state at this stage that applications under Order 6 Rule 17 and under Order 41 Rule 27, read with Section 151 of the Code of Civil Procedure, have been filed when the arguments were already partly heard on 24.07.2008 and the matter was ordered to be listed on 02.08.2008. The defendant has only placed on record copy of certificate issued in his favour vide Annexure A-1 filed alongwith application preferred under Order 41 Rule 27, whereby he has been allotted land bearing Khasra No. 623/1, measuring 0-24-17 hectares, situated in Mohal Rajpur alongwith Form No. 32-A. 9. MR. Sanjay Dutt Vasudeva, learned counsel for the appellants has vehemently argued that the First Appellate Court has not taken into consideration the certificate issued in favour of his client. However, the fact of the matter is that the learned District Judge, Kangra has discussed the certificate of allotment of Khasra No. 623/1 in favour of defendant No. 1 in paragraph No. 10 of the judgment, dated 04.08.2008. In allotment certificate, only Khasra No. 623/1, measuring 0-24-17 hectares has been mentioned. 10. PRITAM Chand has appeared as PW-1. According to him, the plaintiffs and other co-sharers were joint owners in possession of the suit land. The defendant has been allotted a piece of land adjacent to the suit land. According to him, after allotment, the defendant started interfering with the possession of the plaintiffs on the suit land. He has started encroaching upon the suit land. The plaintiffs have tendered in evidence copy of Jamabandi Ex. P-1 for the year 1986-87. According to this Jamabandi, the plaintiffs and other co-sharers were shown owners in possession of the suit land. The nature of the suit land is recorded as Banjar Kadeem. The defendant has appeared as DW-1. He has deposed that he has been allotted a piece of village common land in 1976. He has taken possession of the land in 1976. He has developed the suit land. He has planted fruit bearing and non-fruit bearing plants in the suit land. He has denied that he has taken possession of the suit land forcibly. He has deposed that he has been allotted a piece of village common land in 1976. He has taken possession of the land in 1976. He has developed the suit land. He has planted fruit bearing and non-fruit bearing plants in the suit land. He has denied that he has taken possession of the suit land forcibly. DW-2, Gorakh Ram, DW-3, Sansar Chand and DW-4, Gurbachan Singh have supported the version of the defendant. The defendant has tendered in evidence Jamabandi, Ex. D-1 of Khasra No. 623 for the year 1981-82. The entry of column of remarks of Jamabandi, Ex. D-1 discloses that land measuring 0-24-17 hectares out of Khasra No. 623 described by Khasra No. 623/1, had been allotted to the defendant by the State and mutation No. 66 thereof stood sanctioned in favour of the defendant on 22.09.1987. Ex. D-2 is Jamabandi for the year 1986-87 of Khasra No. 623/1. Khasra No. 623/1 had been assigned Khasra No. 1309/623. This Jamabandi indicated the defendant as owner in possession of the land allotted to him. Ex. D-3 is the copy of Jamabandi Misal Hakiat of the suit land. This Jamabandi shows the plaintiffs and other co-sharers as owners in possession of the suit land. Ex. D-4 is the copy of Jamabandi for the year 1968-69 of the suit land. It also discloses the plaintiffs and other co-sharers as owners in possession of the suit land. The contention of the defendant that he was put in possession of the suit land in the year 1976 is not supported by Ex. P-1, Ex. D-1, Ex. D-2 and Ex. D-3. Similarly, there is no entry recorded in the revenue record that defendant has laid foundation over the suit land in the year 1977. The defendant has not led any tangible evidence on record to establish that he was allotted suit land. In cross-examination, the defendant has stated that he has no concern with land of the plaintiff Badri Parshad and he has raised foundations and planted fruit bearing trees over the land which was allotted to him. He has also stated that the land of the plaintiff was not given to him. Thus, the defendant himself has admitted that he has no concern with the suit land of the plaintiff and he has raised foundations and planted fruit bearing trees over the suit land which was allotted to him. He has also stated that the land of the plaintiff was not given to him. Thus, the defendant himself has admitted that he has no concern with the suit land of the plaintiff and he has raised foundations and planted fruit bearing trees over the suit land which was allotted to him. DW-2, Gorkh Ram has admitted in his cross-examination that the defendant has raised foundation and danga over the Shamlat land. DW-3, Sansar Chand has deposed that defendant has raised foundation over the suit land which was allotted to him. In his cross-examination, he has admitted that the land of the plaintiffs and defendants are in two separate parcels of land. He has also admitted that the land belonging to the plaintiff was having trees. DW-4, Gurbachan Singh has deposed that the suit land was allotted to the defendant in the year 1976. However, in his cross-examination, he has deposed that the suit land belongs to plaintiffs. The defendant could not prove that the Revenue Staff has handed over the possession of the suit land to him while allotting land in the year 1976. He was only allotted land measuring 0-24-17 hectares as per the certificate of allotment. The defendant has also failed to prove adverse possession. He has not led any evidence to prove that he was in possession of the suit land openly and uninterruptedly. The plaintiffs have established their title to the suit land. In view of the discussion of the factual and legal matrix, as noticed hereinabove, the Local Commissioner cannot be appointed, as prayed for in C.M.P. No. 468 of 2012 and the same is dismissed. The substantial questions of law are answered accordingly. Accordingly, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.