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2013 DIGILAW 418 (HP)

Dev Raj v. Jonki Ram

2013-05-13

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree, dated 04.02.2012, passed by the learned District Judge, Hamirpur, H.P., in Civil Appeal No. 113 of 2008. 'Key facts' necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as 'the plaintiff' for the sake of convenience) has filed a suit for permanent prohibitory injunction against the appellant-defendant (hereinafter referred to as 'the defendant' for the sake of convenience) qua suit land comprised in Khata No. 154 min, Khatoni No. 156 min, Khasra No. 81, measuring 3 Kanals 8 Marlas, situated in Tika Pandher, Tappa Ugialta, Tehsil and District Hamirpur, Himachal Pradesh with a prayer for possession by way of demolition, if the defendant succeeds in raising forcible construction over the suit land. According to the plaintiff, the suit land was owned and possessed by his father, Shri Dass, who has expired on 03.08.2007. His father had executed a will, dated 17.11.1992 in his favour and as per the will, the plaintiff is now absolute owner in possession of the suit land. The defendant is stranger to the suit land. According to the plaintiff, the defendant is owner of the land adjoining to the suit land. He has threatened to cut the trees and to dig the suit land for raising forcible construction over the suit land. 2. The suit was contested by the defendant by filing written statement. According to the defendant, he has become owner of part of the suit land, i.e., 10 Marlas by way of adverse possession. According to him, the plaintiff was not owner in possession of the suit land. He alongwith his brothers is in possession to the extent of 10 Marlas of the suit land since 01.04.1965. 3. The replication was filed by the plaintiff. Learned Civil Judge (Senior Division), Hamirpur, Himachal Pradesh framed the issues on 21.10.2008. He decreed the suit on 27.04.2010. Feeling aggrieved against the judgment and decree, dated 27.04.2010, the defendant preferred an appeal before the learned District Judge, Hamirpur, Himachal Pradesh He dismissed the same on 04.02.2012. Hence, this Regular Second Appeal. 4. Mr. Learned Civil Judge (Senior Division), Hamirpur, Himachal Pradesh framed the issues on 21.10.2008. He decreed the suit on 27.04.2010. Feeling aggrieved against the judgment and decree, dated 27.04.2010, the defendant preferred an appeal before the learned District Judge, Hamirpur, Himachal Pradesh He dismissed the same on 04.02.2012. Hence, this Regular Second Appeal. 4. Mr. Ramakant Sharma, learned Counsel for the appellant, on the basis of the substantial questions of law framed at pages No. 7 and 8 of the paper book, has vehemently argued that both the Courts below have mis-read and mis-construed the oral as well as documentary evidence. According to him, his client has proved the adverse possession. He then contended that the present suit filed by the plaintiff was hit by Section 11 of the Code of Civil Procedure. He also contended that the plaintiff has only filed a suit for permanent prohibitory injunction and the decree for possession could not be passed in favour of the plaintiff. 5. Mr. Rajinder Dogra, learned Counsel for the respondent has supported the judgments and decrees passed by both the Courts below. 6. I have heard the learned Counsel for the parties and gone through the pleadings carefully. 7. Plaintiff has appeared as PW-1. He has testified about the ownership as well as cause of action qua the suit land. He has also examined PW-2, Madan Lal, PW-4, Karam Chand and PW-5, Kuldip Chand has appeared in rebuttal. PW-3, Smt. Saroj Kumari has produced the record pertaining to demarcation. Plaintiff has also placed on record copy of Jamabandi for the year 2001-02, Ex.-P1 pertaining to the suit land, according to which, plaintiff's father has been shown as owner in possession, but the mutation after the death of Shri Dass has been entered in favour of the plaintiff, but has not been sanctioned as yet. 8. The defendant has appeared as DW-1. According to him, he was in possession of the suit land measuring 10 Marlas. DW-2, Desh Raj has supported the version of DW-1. The defendant has placed on record documents Ex.-D1 to D-6 and Ex. DW 1/A and Ex. DW 1/B. Ex.-D1 is the copy of plaint of Civil Suit No. 2/2006, titled Dass Vs. Dev Raj, the suit which was earlier filed by the father of the plaintiff. Ex. DW 1/A is the copy of order, dated 20.06.2008. Ex. The defendant has placed on record documents Ex.-D1 to D-6 and Ex. DW 1/A and Ex. DW 1/B. Ex.-D1 is the copy of plaint of Civil Suit No. 2/2006, titled Dass Vs. Dev Raj, the suit which was earlier filed by the father of the plaintiff. Ex. DW 1/A is the copy of order, dated 20.06.2008. Ex. DW 1/B is the copy of order, dated 11.12.2006, vide which the demarcation in question was confirmed. Ex. D4 and Ex. D6 are the copies of demarcation report, dated 18.06.2005, according to which, the defendant was found in illegal possession of 10 Marlas of suit land bearing Khasra No. 81/1. Ex. D-2 and Ex. D-3 are the copies of statements of plaintiff and his father, recorded at the time of demarcation and Ex. D5 is the copy of field book prepared at the time of demarcation. 9. The defendant has failed to prove the ingredients of adverse possession. In the written statement, it is stated that adverse possession commenced from 01.04.1965 when his father purchased adjoining land bearing Khasra No. 87. There is nothing in the statement of DW-2 about the overt acts of the defendants to prove the adverse possession. According to him, the defendant and his brothers are in possession of 10 Marlas of land since 1964-65. The land was never cultivated by the defendants since the nature of the land is banjar. According to Jamabandi for the year 2001-02, Ex.-P1, the plaintiffs father has been recorded as owner in possession of the suit land. The defendant has not placed on record any revenue record to prove his possession over the suit land. Though the defendant has tried to prove that he has thrown malwa over the suit land, however, there is no evidence when the malwa was thrown on the suit land to prove the possession. The plaintiff has prayed for permanent prohibitory injunction and in the alternative for possession. The earlier suit filed by the plaintiffs father was not decided on merits. Thus, the plea of res judicata is not maintainable. The earlier suit was filed for different cause of action. The earlier suit Ex. DW 1/A was filed for simpliciter injunction by the father of the plaintiff. According to the demarcation report, the defendant alone was found in illegal possession of the suit land. In view of this, his brothers were not necessary parties, as argued by Mr. The earlier suit was filed for different cause of action. The earlier suit Ex. DW 1/A was filed for simpliciter injunction by the father of the plaintiff. According to the demarcation report, the defendant alone was found in illegal possession of the suit land. In view of this, his brothers were not necessary parties, as argued by Mr. Ramakant Sharma, learned Counsel for the appellant. The Courts below have correctly appreciated the oral as well as documentary evidence led by the parties. Accordingly, in view of the observations and analysis made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending applications, if any. No costs.