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2013 DIGILAW 417 (HP)

Chhaju v. Gian Chand

2013-05-13

RAJIV SHARMA

body2013
JUDGMENT Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree, dated 03.05.2002, passed by the learned District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No. 35-CA/13 of 2001. 2. ‘Key facts’ necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for the sake of convenience) filed a suit for possession on the basis of title against the respondents-defendants (hereinafter referred to as ‘the defendants’ for the sake of convenience). According to the plaintiffs, they are owners of the land comprised in Khata No. 80, Khatauni No. 145 min, Khasra No. 191 to the extent of 1 biswa, total area measuring 9.8 bighas, situated in Village Rampur Majri, Tehsil Paonta Sahib, District Sirmaur, H.P. Out of the land in question, 0-1 bigha is under Abadi and chhappar is existing on the same as per the revenue record. The defendants occupied the chhappar with the consent of the plaintiffs and installed an electric meter in the same about 11 years back. They are residing in the chhappar and the plaintiff are now in need of the same for personal use. They have started digging the foundations for construction of new structure around the chhappar and inner side of chhappar. According to the plaintiffs, the defendants have no right, title or interest in the suit land. The plaintiffs have made several requests to the defendants to hand over the chhappar. It is specifically averred in paragraph No. 4 of the plaint that the chhappar be got vacated from the possession of the defendants and decree for possession on the basis of title be granted in favour of the plaintiffs alongwith decree for permanent injunction restraining the defendants from raising construction on the suit land. It is in these circumstances, the plaintiffs have filed suit praying for a decree for possession on the basis of title with a decree for permanent injunction restraining the defendants from digging and raising any construction in the suit land and further the possession of the chhappar in question be given to the plaintiffs and the defendants be dis-possessed from the chhappar and a decree in this behalf be passed in favour of the plaintiffs. 3. The suit was contested by the defendants. According to them, they forcibly dispossessed the plaintiffs on 15.06.1975 and thereafter raised chhappar. 3. The suit was contested by the defendants. According to them, they forcibly dispossessed the plaintiffs on 15.06.1975 and thereafter raised chhappar. They occupied four biswas of land denoted by Khasra No. 191/1. They raised mango trees, neem trees, amrood trees and mulberry trees in July, 1975. According to the defendants they were in possession of the suit property, i.e., 4 biswas of land by way of house, cowshed and plants. They also claimed their possession being adverse for more than 12 years. One of the defendants Phool Singh died during the pendency of the suit before the learned Sub Judge 1st Class, Court No. 1, Paonta Sahib and his legal representatives were brought on record. 4. Learned Sub Judge 1st Class, Court No. 1, Paonta Sahib framed the issues on 06.11.1999. The suit of the plaintiffs was decreed for possession of land comprised in Khasra No. 191/1, measuring 4 biswas, situated in Mauza Rampur Majri, Tehsil Paonta Sahib, District Sirmaur, H.P., as shown in Tatima Ex. DW-4/A. 5. Feeling aggrieved against the judgment and decree, dated 15.02.2001, the defendants filed an appeal before the learned District Judge, Sirmaur District at Nahan, H.P. He allowed the same on 03.05.2002. Hence this Regular Second Appeal. 6. This Regular Second Appeal was admitted on the following substantial questions of law on 21.06.2002: “Whether the learned District Judge has misconstrued, misinterpreted the plaint and ignored admissible evidence by way of Tatima, Ex.DW-4/A in accepting the 1st Appeal and dismissing the suit of the plaintiffs?” 7. Mr. K.S. Kanwar, learned counsel for the appellants has supported the judgment and decree, dated 15.02.2001, passed by the learned trial Court. According to him, the suit land was properly defined as per the plaint. He has placed strong reliance upon Ex.-DW4/A, tatima. 8. Ms. Mahika Verma, learned vice counsel for the respondents has supported the judgment and decree, dated 03.05.2002, passed by the learned District Judge, Sirmaur District at Nahan, H.P. According to her, the complete description of the property has not been given in the plaint. 9. I have heard the learned counsel for the parties and gone through the records carefully. 10. PW-1, Budh Ram has deposed that chhappar was given to the defendants for some time. According to him, about 3 years ago, the defendants were requested to hand over the possession, but they refused. 9. I have heard the learned counsel for the parties and gone through the records carefully. 10. PW-1, Budh Ram has deposed that chhappar was given to the defendants for some time. According to him, about 3 years ago, the defendants were requested to hand over the possession, but they refused. He denied the suggestion in cross-examination that Phool Singh dispossessed the plaintiffs over four biswas of land on 15.06.1975. 11. According to jamabandi for the year 1995-96, Ex.-P1, the whole land comprised in Khasra No. 191 is recorded in the ownership and possession of the plaintiffs and one biswa portion of this land has been recorded as Gair Mumkin Chhappar. The defendants have not led any evidence to rebut the revenue record placed on record by the plaintiffs. 12. DW-1, Gian Chand has deposed that the chhappar was constructed by him with the help of his father. However, DW2 Lal Singh has deposed that two labourers were engaged by the defendants for raising construction of their chhappar. DW-3, Ram Sarup has deposed that the defendants had employed 8-10 persons for raising the construction of a chhappar. These statements are at variance with each other. 13. Learned Courts below have rejected the plea of adverse possession raised by the defendants. The defendants have not proved the basic ingredients of adverse possession. According to them, four biswas of land was their malkiyati land. They could not raise the plea of adverse possession against themselves. 14. In the instant case, DW-4, Jagpal Singh, Patwari visited the spot and prepared tatima Ex. PW-4/A. However, the learned 1st Appellate Court has dismissed the suit of the plaintiffs only on the ground that the plaint was required to contain description of the property sufficient to identify it. Learned 1st Appellate Court has also examined tatima Ex.-DW4/A. Learned trial Court has decreed the suit on the basis of Ex. DW-4/A. There is a complete description of the property given in Ex. DW4/A. In the body of the plaint, the description of the land has been given by denoting it Khata Khatauni No. 80/145 min, Khasra No. 191, total area measuring 9.8 bighas. Ex. DW4/A has been proved by DW-4, Shri Jagpal Singh, Patwari, who has visited the spot and prepared tatima. In view of this, the finding recorded by the learned 1st Appellate Court that the property was not properly defined is contrary to record. 15. Ex. DW4/A has been proved by DW-4, Shri Jagpal Singh, Patwari, who has visited the spot and prepared tatima. In view of this, the finding recorded by the learned 1st Appellate Court that the property was not properly defined is contrary to record. 15. In Ganesh Vs. Sri Ram Lalaji Mahraj Birajman Mandir and others, AIR 1973 Allahabad 116 the Full Bench has held that if independently of the boundaries the property can be sufficiently identified, then any error or mis-description in the boundaries cannot affect either the suit or the decree passed in the suit. The Full Bench has held as under: “10. Before parting with the case, we may also refer to Order VII, Rule 3 of the Code of Civil Procedure, which provides:- “Where the subject-matter of the suit is immoveable property, the plaint shall contain a description of the property sufficient to identify it and, in case such property can be identified by boundaries or numbers in a record of Settlement or Survey, the plaint shall specify such boundaries or numbers.” It will thus be seen that what the law requires is that the description of the property in such given in the plaint must be sufficient to identify the property. If independently of the boundries the property can be sufficiently identified, then any error or misdescription in the boundaries cannot affect either the suit or the decree passed in the suit. In the instant case, as already mentioned, no dispute at any time was raised that the suit property and the property in respect of which the decree was passed is not identifiable on the spot or it is a property different from the property which was purchased by the plaintiff from Panna Lal and for the delivery of which the suit was filed. In the circumstances, in our opinion, ends of justice require that the two applications should be allowed and the amendments prayed for be made.” 16. The High Court of Karnataka in S. Nagaraj Vs. Kalluramma, AIR 1996 Karnataka 125 has held that when no issue as to identity of suit land was raised in lower Courts by parties, no prejudice can be said to have been caused by mis-description of the property. The learned Single Judge has held as under: “9. Similarly, a Division Bench of the Patna High Court in the case of The State of Bihar Vs. The learned Single Judge has held as under: “9. Similarly, a Division Bench of the Patna High Court in the case of The State of Bihar Vs. Ranchi Goshala Society (AIR 1981 NOC) has taken a view that if from the description of the property the parties understanding as to which property forms the subject matter of the suit go to the trial and fail to show any prejudice caused to them by vagueness of the description, the suit is not liable to be dismissed on the said ground. 10. In the above view of the matter, I am of the considered opinion that the parties had well identified and understood the description of the property which was the subject matter of the suit and had gone to the trial with that clear understanding. Therefore, no prejudice can be said to have been caused because of the description of the property as Survey No. 134/2B nor can it impede the execution of the decree. In my opinion, the Courts below have rightly decreed the suit in respect of the suit property.” In the instant case, the issue with regard to misdescription of property was not raised in the trial Court. This plea has only been taken in the first Appellate Court. 17. Their Lordships of the Hon’ble Supreme Court in S. Noordeen Vs. Thiru Venkita Reddiar and others, (1996) 3 Supreme Court Cases 289 have held that furnishing description of immovable properties, which are subject matter of the suit, in the plaint are mandatory only in mortgage suit under Order 34, but not in other suits. Their Lordships have held as under: “5. The question, therefore, emerges : whether the decree passed under the compromise would attract exception engrafted in Clause (vi) of sub-section (2) of Section 17 or the main part in Clause (vi) of subsection (2) of Section 17 of the Act? The attachment before the judgment is an encumbrance preventing the owner of the property to create encumbrance, sale or create charge thereon. Attachment before judgment does not create any right, title or interest, but it disables the judgment-debtor to create any encumbrances on the property. Ultimately, when decree is passed, the property forms part of the decree so as to enable the decree-holder to proceed with against the property to realise the decree-debt. Attachment before judgment does not create any right, title or interest, but it disables the judgment-debtor to create any encumbrances on the property. Ultimately, when decree is passed, the property forms part of the decree so as to enable the decree-holder to proceed with against the property to realise the decree-debt. The question is : whether the properties which are not part of the schedule mentioned in the suit will nonetheless be the part of the decree? It is not mandatory that the property should be specifically mentioned; it is so only in a mortgage suit under relevant clauses of Order 34 of the Code. The decree holder is entitled to proceed against those items mentioned in the petition. The decree would be executed as provided in other mode of the decree. In other words, attached properties are also liable to be sold as integral part of the decree. The properties, though do not form part of the Schedule, would also become part of the decree. 18. Their Lordships of the Hon’ble Supreme Court in Pratibha Singh and another Vs. Shanti Devi Prasad and another (2003) 2 Supreme Court Cases 330 have held that when the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the Court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. Their Lordships have held as under: “7. The suit was decreed. The principal relief that was allowed to the plaint-decree holders was relief no. 1 as prayed for in the plaint which is reproduced hereunder: "Claim for: (i) That the defendants be directed to accept the balance amount of the consideration under the agreement dated 30.11.78 read with the agreement dated 4.9.79 within a time to be fixed by the court and to execute and register a deed of sale with respect to the suit lands as described in the schedule of the plaints in favour of the plaintiffs no. 1 and 2 as per terms of the said agreement failing which the said sale deed by executed and registered through the court at the cost and expenses of the defendants." 19. Their Lordships of the Hon’ble Supreme Court in P. Chandrasekharan and others Vs. S. Kanakarajan and others (2007) 5 Supreme Court Cases 669 have held as under: “10. 1 and 2 as per terms of the said agreement failing which the said sale deed by executed and registered through the court at the cost and expenses of the defendants." 19. Their Lordships of the Hon’ble Supreme Court in P. Chandrasekharan and others Vs. S. Kanakarajan and others (2007) 5 Supreme Court Cases 669 have held as under: “10. The plaintiff, before his suit is decreed, must establish the cause of action in respect of the property in question where for the relief for recovery of possession has been claimed. In case the suit is decreed, the Executing Court must be able to deliver possession thereof and thus there cannot be any doubt whatsoever that the property in suit must be adequately identifiable. When such a relief is claimed the plaintiff must show what he had purchased and how the court, in the event, a dispute arises, would determine the identity of the property. 20. Their Lordships of the Hon’ble Supreme Court in Ramdas Bansal Vs. Kharag Singh Baid and others (2012) 2 Supreme Court Cases 548 have held as under: “28. Mr. Chowdhury submitted that the first contention before the Trial Court was with regard to the description and identity of the demised property. It was urged that confusion was sought to be created by the Defendant in the suit by contending that the Respondents were not entitled to relief, inasmuch as, they were seeking relief in a property which was different from the property mentioned in the Lease Deed. However, both the Trial Court, as well as the Division Bench, held that in this case there was no difficulty at all in identifying the property, inasmuch as, what was leased out by the Respondents to the Appellant was the Grace Cinema Hall and what was to be recovered by the Respondents in the suit was also the said Cinema Hall and nothing else. 40. 40. As indicated hereinabove, the Respondents had filed Title Suit No.102 of 1994 against the Appellant, inter alia, for (i) a decree for vacant possession in respect of the suit property comprising the demised premises described in the schedule to the plaint and delineated in the map annexed thereto and marked with the letter `B'; and (ii) if necessary, the mis-description in the lease deed dated 19.9.1972 be rectified so as to reflect the true intention of the parties with regard to the identity of the suit property. 41. Such a prayer was made on account of the fact that the description of the suit properties in the plaint did not tally with the description of the property in the Lease Deed itself. While in the Lease Deed, the demised property was described as premises No.91, Mahatma Gandhi Road, Kolkata, in the plaint, the suit property was described as being the property situated at premises No.91-A, Mahatma Gandhi Road and portion of premises No.6A, Sambhu Chatterjee Street, Kolkata. It is in such context that a separate prayer had been made in the plaint for rectification of the schedule in the Deed of lease, if necessary. The said two reliefs were more or less connected with each other, but even without such rectification, it was possible for the decree to be executed. 42. The said question has been dealt with in detail both by the learned Single Judge, as well as the Division Bench of the High Court, and both the Courts had held that the said issue was not of much consequence, since, as is evident from paragraph 2 of the Written Statement, the Appellant herein was fully aware at the time of granting of the lease that the demised premises consisted of a building constructed on the premises which consisted of both premises No.91-A, Mahatma Gandhi Road, as well as 6-A, Sambhu Chatterjee Street, and that the said two premises were inseparable. Both the Courts, accordingly, rejected the plea of the Appellant that the suit was not maintainable as the description of the suit property did not tally with the description of the property in the lease deed. Both the Courts, accordingly, rejected the plea of the Appellant that the suit was not maintainable as the description of the suit property did not tally with the description of the property in the lease deed. Consequently, both the Courts allowed the prayer of the Respondent/Plaintiff to rectify the schedule of the lease deed to correct the mis-description of the suit property therein, as there was no doubt as to the identity of the suit property on which Grace Cinema Hall was situate, and the building erected on the two plots was inseparable.” 21. The defendants always knew the exact description of the property since they themselves claimed adverse possession of four biswas of land. Suit land comprised of Khasra No. 191, measuring 9-8 bighas as per paragraph No. 1 of the plaint. It was not confined to one biswa, as argued by Ms. Mahika Verma, learned counsel for the respondents. The suit property was identified by way of tatima Ex. DW-4/A. The defendants have not claimed the possession of any part of the suit land, except 4 biswas of land identified in Ex. DW4/A. 22. Accordingly, in view of the observations and analysis made hereinabove, the Regular Second Appeal is allowed. The judgment and decree, dated 03.05.2002, passed by the learned District Judge, Sirmaur District at Nahan, H.P. is set aside and the judgment and decree, dated 15.02.2001, passed by the learned Sub Judge 1st Class, Court No. 1, Paonta Sahib, District Sirmaur, H.P. is restored. The pending application(s), if any, also stands disposed of. No costs.