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2014 DIGILAW 1041 (HP)

Dalip Singh v. Malkan Devi

2014-08-04

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : Tarlok Singh Chauhan, J. This appeal is directed against the judgement and decree dated 24.5.2002 passed by learned District Judge, Hamirpur in Civil Appeal No. 85 of 1990, whereby he partly reversed the judgement and decree passed by learned trial court dated 26.4.1990 and dismissed the suit of the plaintiff-respondent. 2. The facts in brief are that the plaintiff claimed herself to be the owner in possession of the land entered in Khata No.6min, Khatoni Nos. 7 and 8, old Khasra No. 578/140min, new Khasra No. 156min, 156min, measuring 15K-1M to the extent of half share measuring 7K-10M, situated in Tika Sarehri, Mouza Galore, Tehsil Nadau, Distt. Hamirpur (hereinafter referred to as the suit land). According to her, Sh. Salig Ram is the owner of the remaining half of the suit land. The land previously was in the ownership of one Shri Rup Singh, who was unheard of and as such, mutation of succession was sanctioned in the name of his sister, Smt. Gaurju Devi. 3. It was alleged that said Smt. Gaurju Devi gifted away the suit land to the plaintiff and as such, the plaintiff has become the owner of the suit land. The nature of the suit land is "Kharetar" and she is cutting grass therefrom. The defendant has however managed the entries so as to he is in possession of the suit land in connivance with the revenue staff. Such entries are stated to be without any jurisdiction and behind her back, hence not binding on her. It is she who is in possession of the suit land and the defendant is not in possession thereof. He, however, started causing interference for the first time in November, 1986 and also proclaimed that he will occupy the suit land. On this, she obtained the copy of the entries in the revenue record so as to the suit land is concerned and came to know about such wrong entries showing the defendant in possession of the suit land on 19.11.1986. On this, she obtained the copy of the entries in the revenue record so as to the suit land is concerned and came to know about such wrong entries showing the defendant in possession of the suit land on 19.11.1986. She requested the defendant not to interfere in her possession over the suit land and also to get the entries corrected, but of no avail, hence the suit for the decree of permanent prohibitory injunction restraining the defendant from causing any interference in the suit land in any manner whatsoever and in case she is not found in possession thereof, in that event, the decree for possession of the suit land has also been sought. 4. The defendant contested the suit and raised preliminary objection of limitation and that the plaintiff is mere figure head and as regard the suit is concerned, it has been filed by her husband Salig Ram in connivance with Relu and Dhannu of Village Sarehri. On merits, while denying the case of the plaintiff as set out in the plaint, it has been submitted that she has nothing to do with the suit land it is, rather the defendant who has become the owner of half share of the suit land belonging to Rupa by adverse possession as it is he who is in possession thereof right from 1957 when said Rupa left for Bombay. The question of inheritance of the suit land by Inder Dei and Gaurju, sisters of Rupa does not arise. Similarly, there is also no question of the gift thereof in favour of the plaintiff by said Smt. Gaurju nor such gift affects his rights in the suit land. Above all, the sanction of mutation with respect to the suit land in favour of Inder Dei and Gaurju is stated to be fraudulent and managed by Salig Ram, the husband of the plaintiff in connivance with the revenue staff. It has also been submitted that Smt. Inder Dei and Gaurju never filed any suit for recovery of possession of the suit land against him. It is, however, Salig Ram, the husband of the plaintiff who had filed the suit against him and Rupa alleging that as said Smt. Rupa is unheard of for more than 40 years and as such, he (Salig Ram) is in possession of the land in the share of said Smt. Rupa. It is, however, Salig Ram, the husband of the plaintiff who had filed the suit against him and Rupa alleging that as said Smt. Rupa is unheard of for more than 40 years and as such, he (Salig Ram) is in possession of the land in the share of said Smt. Rupa. The said suit, however, was dismissed by the then learned District Judge, Hamirpur. It has thus been submitted that the plaintiff never became owner in possession of the suit land. The suit has thus been sought to be dismissed. In replication, the plaintiff has denied the preliminary objection being wrong and on merit, reiterated the averments as set out in the plaint. 5. The following issues were framed by the learned trial court: 1. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP. 2. Whether the suit is not within time? OPD. 3. Whether the defendant has become owner of the suit land by way of adverse possession? OPD. 4. Relief. 6. The learned trial court after recording the evidence and evaluating the same dismissed the suit of the plaintiff-respondent. On appeal having been preferred by the respondent-plaintiff, the learned District Judge has partly allowed the appeal. Aggrieved by the said judgement and decree, the defendants-appellants are in second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the District Judge, Hamirpur has misread and misinterpreted the oral and documentary evidence on record, more specifically Exts. P-6, P-7, DW 1/A, DW 1/B, D-1, D-4, D-5, D-6 and D-16 to reject the defence set up by the appellant-defendant that he is in adverse possession of the land in dispute? 2. Whether the District Judge has erred in holding that the suit of the respondent-plaintiff is within limitation? 7. I have heard the learned counsel for the parties and have carefully gone through the records of the case. 8. Since both the substantial questions of law are interconnected and interrelated, I propose to dispose of the same through common reasoning. 9. Admittedly, in the previous litigation being Civil Suit No. 343 of 1974 Ex. 7. I have heard the learned counsel for the parties and have carefully gone through the records of the case. 8. Since both the substantial questions of law are interconnected and interrelated, I propose to dispose of the same through common reasoning. 9. Admittedly, in the previous litigation being Civil Suit No. 343 of 1974 Ex. P-6, the learned Sub Judge, Hamirpur had held the appellant to be in possession of half portion of the suit land, which judgement and decree in turn had been upheld by the learned District Judge, Hamirpur in Civil Appeal No. 115 of 1983 vide judgement and decree dated 19.10.1985 Ex. D-4. There was no plea of adverse possession raised in those proceedings as have been noticed by the learned Senior Sub Judge, in paragraph-20 of the judgement dated 15.9.1983, which reads as follows:- "20. On the basis of the evidence led by the defendant No.1, the conclusion is that he has failed to prove that he was a tenant qua share of defendant No. 2 under him. However, the possession of defendant No. 1 qua share of defendant No. 2 in the land in dispute stands proved. But as I have already stated above the defendant No. 1 has not set up the plea of adverse possession, as such his possession over the suit land is of no legal consequence so for the present suit is concerned." 10. Undisputedly, the present suit came to be instituted on 18.6.1987. Therefore, I failed to understand how the possession of the defendant within two years could be termed to be adverse. The predecessor-in-interest of the defendants in the previous suit had contested the claim of the plaintiff therein by setting up a plea of tenancy, which he failed to prove. The appellant thereafter filed an appeal reiterating his claim that he had been inducted as a tenant, which plea was negated by the learned appellate court. Be it noticed that appeal mentioned above was instituted on 6.10.1983 and decided on 19.10.1985. 11. In view of the aforesaid discussion, it is absolutely clear that up till 1985 the defendant-appellant had based his claim on the basis of lawful title i.e. tenancy and it is only now in the year 1987 that plea of adverse possession has been raised. 11. In view of the aforesaid discussion, it is absolutely clear that up till 1985 the defendant-appellant had based his claim on the basis of lawful title i.e. tenancy and it is only now in the year 1987 that plea of adverse possession has been raised. This plea on the face of it within two years of the dismissal of the earlier appeal being Civil Appeal No. 115 of 1983 is therefore, not available to the appellant. 12. Thus by no stretch of imagination can any exception be taken to the judgement and decree passed by the learned lower appellate court negating the plea of adverse possession as set up by the defendant-appellant. Since the defendant has failed to prove his plea of adverse possession, the suit was definitely within the period of limitation. Even on this account, no exception can be taken with the findings recorded by the learned lower appellate court, particularly when the suit of the plaintiff has already been dismissed while the possession of the defendant has been protected by observing that appellant cannot be ejected from the suit land save and except in due course of law. Both the substantial questions of law are accordingly answered. 13. In view of above discussion, I find no merit in the appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.