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2013 DIGILAW 995 (HP)

Yogeshwar Lal Chopra v. Parminder Singh Rana

2013-12-03

SANJAY KAROL

body2013
JUDGEMENT SANJAY KAROL, J.- 1. DEFENDANTS (appellants herein) have filed the present appeal under the provisions of Section 100 of Code of Civil Procedure, assailing the judgment and decree dated 7.6.2013, passed by learned District Judge, Chamba, Himachal Pradesh, in Civil Appeal No.1 of 2013, titled as Yogeshwar Lal and another versus Parminder Singh Rana and others, whereby findings, judgment and decree dated 30.11.2012, passed by the Civil Judge (Senior Division), Chamba, District Chamba, Himachal Pradesh, in Civil Suit No.9/2007, titled as Parminder Singh Rana and another versus Yogeshwar Lal Chopra and others, stands affirmed. 2. PLAINTIFFS Shri Parminder Singh Rana and Shri Kashmir Singh Rana (respondents herein) filed a suit for Whether reporters of the local papers may be allowed to see the judgment? possession, with respect to 9.7 square yards of land comprised in Khata Khatauni No.494/625, Khasra No.8423/1, situate in Mohalla Chamba Town-1st Pargana Panjla, Tehsil & District Chamba. Plaintiffs claim to be owner of the suit land, which stands encroached by the defendants. On the other hand, defendants claim that Khasra No.8423/1 stands illegally carved out of Khasra No.8423, over which there is a passage, which has been in their use for the last more than 55 years. For having access to their building, this passage has been in use by the defendants alongwith passage on their own land bearing Khasra No.8422. Defendants also claim ownership, by way of adverse possession over the suit land. Based on the pleadings of the parties, trial Court framed the following issues: 1. Whether the plaintiff is entitled for vacant possession of the suit land? OPP 2. Whether the suit is bad for non-joinder of necessary party? OPD 3. Whether the suit of the plaintiff is barred by limitation, as alleged? OPD 4. Whether the plaintiffs are estopped by their own act and conduct from filing of the suit? OPD 5. Whether the defendants have become owner-in-possession of the suit land by way of adverse possession, as alleged? OPD 6. Relief. 3. APPRECIATING the evidence and other material placed on record, trial Court decreed the suit, in favour of the plaintiffs, in the following terms: "Judged. In the light of my findings returned on aforesaid issues, suit of the plaintiffs decreed for possession of land comprised in Khewat Khatoni No.494/625, Khasra No.8423/1 measuring 9-7-0 Sq. OPD 6. Relief. 3. APPRECIATING the evidence and other material placed on record, trial Court decreed the suit, in favour of the plaintiffs, in the following terms: "Judged. In the light of my findings returned on aforesaid issues, suit of the plaintiffs decreed for possession of land comprised in Khewat Khatoni No.494/625, Khasra No.8423/1 measuring 9-7-0 Sq. yards situated at Mohalla Chamba Town-1st Pargna Panjla, Tehsil and District Chamba, HP in favour of the plaintiffs and against the defendants. Suit is decreed with costs. Demarcation Report Ext.PW-4/B and Tatima Ext.PW-4/C are also made the part f the decree. Decree-sheet be drawn-up accordingly. File, after due completion be consigned to Record Room." 4. FINDINGS of fact, judgment and decree passed by the trial Court stand affirmed by the lower appellate Court. Having heard learned counsel for the parties as also perused the record, which was summoned from the Courts below, I am of the considered view that no case for interference is made out in the present appeal. No question of law, muchless substantial question of law, arises for consideration in the present appeal. 5. NOTICEABLY, parties have been litigating since the year 2005 and all litigations must come to an end at some stage, moreso when no case for interference is made out. Defendants have no right, title or interest in the suit land. 6. THE fact that plaintiffs are owners of land comprising Khasra No.8423 is not in dispute. The fact that adjoining land bearing Khasra No.8422 is owned and possessed by the defendants is also not in dispute. The fact that there is independent path (of 39 square yards), leading to the house of the defendants, through Khasra No.8422, is not in dispute. While assailing the findings returned by the Courts below, Mr. Anand Sharma, learned counsel for the defendants, has invited my attention to the previous litigation inter se the parties. Undisputedly, judgments and decrees passed by the Courts, with respect to the same, were not proved by either of the parties before the Courts below. Now, an application under Order 41 Rule 27 of the Code of Civil Procedure stands filed by the defendants, for leading additional evidence. I am afraid, this application cannot be allowed. Judgments and orders now sought to be placed on record were well within the knowledge of the parties. Parties chose not to prove the same in accordance with law. Now, an application under Order 41 Rule 27 of the Code of Civil Procedure stands filed by the defendants, for leading additional evidence. I am afraid, this application cannot be allowed. Judgments and orders now sought to be placed on record were well within the knowledge of the parties. Parties chose not to prove the same in accordance with law. It cannot be said that despite exercise of due diligence by the defendants such evidence could not be led. Negligence is writ large. As such, application only merits rejection. 7. HOWEVER, to ensure that no injustice is caused to the parties or the findings returned by the Courts below are not in conflict with the earlier orders/decrees passed by the Courts, resulting into miscarriage of justice, the Court has independently looked into and examined the same. 8. DEFENDANT-appellant No.1 Shri Yogeshwar Lal Chopra filed a suit, being Civil Suit No.126/2005, titled as Yogeshwar Lal Chopra versus Municipal Council Chamba and another, seeking a decree of permanent prohibitory and mandatory injunction against plaintiff No.1-Shri Parminder Singh Rana, also arraying Municipal Council, Chamba as a party, which was decreed by Civil Judge (Senior Division), Chamba, District Chamba, vide judgment and decree dated 31.10.2009, in the following terms: "In view of the aforesaid reasons and findings, suit of the plaintiff is decreed with cost. Defendants are restrained from digging the land comprised in khasra No.8423 which will cause damage to khasra No.8422 situated at Mohal Chamba town I, Tehsil and District Chamba possessed by the plaintiff. The defendants are directed to repair the damage caused to the stair case of plaintiff and restore the passage for the access to his house. Decree sheet be drawn accordingly. File, after its due completion be consigned to record room." (Emphasis supplied) Both the private parties to the lis, aggrieved thereof filed independent appeals. Vide judgment and decree dated 15.1.2011, Additional District Judge, Fast Track Court, Chamba, Himachal Pradesh, allowed the appeals, modifying the judgment and decree passed by the trial Court, to the following effect: "The cumulative effect of above said discussion and findings is that appeal No.33 of 2009 filed by appellant Parminder Singh partly succeeds and modified to the extent that defendant No.2 Parminder Singh/appellant his agents, servants and assignees etc. shall not cause any digging on the land comprised in Khasra No.8423/1 situated at Mohal Chamba I, Town I Chamba as depicted in Tatima Ex.DW-2/F which is a part of demarcation report Ex. DW-2/B and would not cause any damage in any manner to Khasra No.8422 and stairs. Rest of the judgment and decree is affirmed and upheld. Appeal No.34 of 2009 filed by Municipal Council Chamba on the other hand fails and dismissed. Keeping in view the peculiar facts and circumstances of the case, the parties are left to bear their own costs." (Emphasis supplied) 9. IT is urged that plaintiffs herein are in disobedience of the aforesaid directions and as such proceedings under Order 21 Rule 32-A of the Code of Civil Procedure are pending in the Court having competent jurisdiction. 10. IT be only observed that cause of action and the nature of the suit are totally different and distinct from the instant lis. Some of the parties to the lis are also different. Findings returned in the earlier litigation, by no stretch of imagination, can be construed to operate as resjudicata. Proceedings pending, if any, with regard to disobedience of the judgment and decree is neither a subject matter nor would it have any bearing on the present lis. Next, it is urged that revenue authorities illegally carved out Khasra No.8423/1 out of Khasra No.8423 and as such in the absence of any revenue map, authentic and correct, depicting the true position on the ground level, plaintiffs' suit for possession could not have been decreed. 11. IT be only observed that defendants have taken mutually destructive and contradictory pleas. Significantly, defendants themselves accepted findings returned in the earlier litigation, pertaining to Khasra No.8423/1, which fact is evident from the operative portion of the judgment dated 15.1.2011, passed by Additional District Judge, reproduced herein earlier. 12. AT this juncture, it be clarified that this fact has not weighed with the Court, while coming to the conclusion that demarcation report (Ex. PW-4/B) and spot map (Tatima)(Ex. PW-4/C) were prepared by the revenue officials, in accordance with and full compliance of provisions of law. Courts below, after appreciating the testimony of Shri Kewal Ram Sehgal (PW-4), the Kanoongo (Field Officer), who visited the spot, demarcation report (Ex. PW-4/B), and Tatima (Ex. PW-4/B) and spot map (Tatima)(Ex. PW-4/C) were prepared by the revenue officials, in accordance with and full compliance of provisions of law. Courts below, after appreciating the testimony of Shri Kewal Ram Sehgal (PW-4), the Kanoongo (Field Officer), who visited the spot, demarcation report (Ex. PW-4/B), and Tatima (Ex. PW-4/C), concurrently have held that demarcation of land took place in the presence of parties, after complying with the statutory instructions issued by the Financial Commissioner of State of Himachal Pradesh. Also, statements of the parties were recorded on the spot. Significantly, demarcation took place in the year 2004 and till 2007 none disputed the correctness of the report. PW-4 has clearly deposed that he adopted triangular system for conducting demarcation and before demarcating the spot, he took three pucca points and considered and consulted the revenue record (Musabi, Moni, Latha Aks, etc). Hence, I see no reason to differ with the findings returned by the Courts below. 13. AT this juncture, it be also observed that identification of land is not in dispute. It is not the case of defendants that Khasra No.8423/1 was carved out of their land comprising Khasra No.8422. Undisputedly, plaintiffs are owners of Khasra No.8423, and as such it would not make any difference, as to whether demarcation was conducted in accordance with law or not. The fact of the matter is that Khasra Nos.8423 and 8423/1 are owned by the plaintiffs. Only for determining the extent of unauthorized occupation and identification of land, demarcation was got conducted by the plaintiffs. 14. THIS fact acquires significance, more so in view of the defendants' own plea of claiming ownership over Khasra No.8423/1 by way of adverse possession. That plaintiffs are owners of land comprising Khasra No.8423 is not disputed at all. It is a settled principle of law that length of possession, over a period of time, without intention to possess the suit land adversely to the title of the plaintiff, cannot result into acquisition of title by prescription. In the instant case, defendants failed to disclose the time since when they declared their animus, hostile and adverse to the title of true owner. Admittedly, there has been prior litigation inter see the parties, with regard to the suit land. Thus, the Courts below correctly decided the issue of adverse possession against the defendants. 15. DEFENDANTS have not claimed right of passage. Admittedly, there has been prior litigation inter see the parties, with regard to the suit land. Thus, the Courts below correctly decided the issue of adverse possession against the defendants. 15. DEFENDANTS have not claimed right of passage. over the suit land by way of easementary right. 16. NO other point urged. As such, it cannot be held that findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. No question of law, muchless substantial question of law, arises for consideration in the present appeal. For all the aforesaid reasons, the appeal is dismissed and disposed of, so also the pending application(s), if any.