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2014 DIGILAW 1508 (HP)

Gayatri Devi v. Bhawani Singh

2014-10-22

SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment and decree, rendered on 2.6.2003, in Civil Appeal No.102-B/XIII/2001, by the learned District Judge, Kangra at Dharamshala (H.P.), whereby, the learned First Appellate Court dismissed the appeal, preferred by the plaintiff/appellants. 2. Brief facts of the case are that the plaintiff is owner of the suit land entered in Khata No.11, Khatauni No.12, Khasra No. 208/2 old and 4 new measuring 0-38-46 hects. situated at Mohal Dharbaggi, Mauza and Tehsil Baijnath, District Kangra (H.P.). The suit land was Shamlat, which was vested in the Gram Panchayat Pandtehar, Tehsil Baijnath but in pursuance of Section 3 of H.P.Village Common Land (Vesting and Utilization) Act, 1974 the suit land was vested in the State of H.P. Lateron the State of H.P. allotted the suit land to the plaintiff through Patta dated 11.12.1976. The defendant Nos. 1 to 5 had filed Civil suit against the plaintiff etc. before the learned Sub Judge 1st Class, Palampur in the year 1989, claiming themselves to be the tenants in possession of the suit land with consequential relief of permanent prohibitory injunction to restrain the plaintiff from disturbing the possession. The said suit was dismissed qua claim of tenancy but the court restrained the plaintiff to oust defendant Nos. 1 to 5 forcibly from the suit land. It is claimed in the present suit by the plaintiff that during the pendency of that suit, defendants took forcible and unlawful possession of the suit land and are occupying it unauthorisedly. The plaintiff, being owner, entitled to be put in possession thereof. 3. In written statement defendant No.2 took plea that Sh.Nikka Ram, his father was inducted as a tenant by the Gram Panchayat, Pandtehar on 20.11.1971 on payment of rent of Rs.10/- per annum vide receipt No. 93 dated 20.11.1971 in the land comprising Khata No.20 min, Khatauni No.21 min, Khasra No.2 measuring 0-41- 09 hects vide Jamabandi for the year 1985-86 corresponding to Khata No.3 min, Khatauni No. 27, Khasra No.2 measuring 0-41-09 hects. vide Misal Haquiat Bandobast Jadid. It has been admitted that the suit land was earlier owned by the Gram Panchayat Pandtehar and it was vested in the State of H.P. lateron. vide Misal Haquiat Bandobast Jadid. It has been admitted that the suit land was earlier owned by the Gram Panchayat Pandtehar and it was vested in the State of H.P. lateron. It has been submitted that the father of the defendant No.2 Nikka Ram made the suit land fit for cultivation by spending Rs.10,000/- in the year 1971 and has also laid a plinth for the construction of a house in the suit land by spending Rs.8,000/- then. The said Nikka Ram died on 4.5.1982 and he had become owner of the suit land under Section 104 of the H.P.Tenancy and Land Reforms Act. After his death, the defendant No.2 and other legal heirs of deceased Nikka Ram are owners in possession of the suit land. Earlier Nikka Ram was in possession of the suit land and after his death his legal heirs including the defendant No.2 are in continuous possession of the suit land and they have never been evicted from the suit land. The suit land has been allotted wrongly to the plaintiff. It has been admitted that a civil suit was filed in the court which was partly decreed. It has further been submitted that if on technical defect this defendant is not held owner of the suit land by virtue of operation of the H.P.Tenancy and Land Reforms Act, then in the alternative the defendant has become owner of the suit land by way of adverse possession as the defendant No.2 is in open, continuous and hostile possession of the suit land for more than 12 years and it was well within the knowledge of the plaintiff. Therefore, dismissal of this suit is sought. No written statement on behalf of other defendants was filed, as they were proceeded against ex-parte. 4. Replication on behalf of the plaintiff was filed wherein the contents of the plaint were reaffirmed and reasserted and the allegations made in the written statement were denied and refuted. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled to decree of possession, as prayed for? OPP. 2. Whether the suit in the present form is not maintainable, as alleged? OPD. 3. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD. 4. Whether the plaintiff is entitled to decree of possession, as prayed for? OPP. 2. Whether the suit in the present form is not maintainable, as alleged? OPD. 3. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD. 4. Whether the plaintiff has no cause of action against the defendants, as alleged OPD. 5. Whether this Court has no jurisdiction to try the present suit, as alleged? OPD. 6. Whether the defendant has become owner of the suit land by the operation of H.P.Tenancy and Land Reforms Act, as alleged? OPD. 7. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD. 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD. 9. Whether the suit is not within limitation, as alleged? OPD. 10. Whether the plaintiff is estopped from filing the present suit, as alleged? OPD. 11. Whether the defendant No.2 has become owner of the suit land by way of adverse possession, as alleged? OPD. 12. Relief. 6. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff. In appeal, preferred before the learned first Appellate Court by the plaintiff/appellants, against the judgment and decree of the learned trial Court, the learned first Appellate Court also dismissed the appeal. 7. Now the plaintiff/appellants have instituted the instant Regular Second Appeal before this Court, assailing the findings, recorded in the impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 23.3.2004, this Court, admitted the appeal instituted by the plaintiff/appellants, against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial questions of law:- 1. Whether on the proper construction of the provisions of the H.P.Village Common Land (Vesting and Utilisation) Act, whereby land in dispute vested free from encumbrances in favour of the State and the allotment thereof to the appellant, the plea of tenancy and adverse possession raised by the defendants was sustainable? 2. Whether the judgment of the Courts below are vitiated being not in accordance with the Order 20 Rule 5 CPC and the judgment of this Hon'ble Court reported in AIR 2001 HP 18 , Om Parkash Vs. State of H.P. and thus not sustainable? 8. 2. Whether the judgment of the Courts below are vitiated being not in accordance with the Order 20 Rule 5 CPC and the judgment of this Hon'ble Court reported in AIR 2001 HP 18 , Om Parkash Vs. State of H.P. and thus not sustainable? 8. Admittedly, the plaintiff/appellants had filed a suit for possession against the defendants/respondents. Admittedly, the suit came to be dismissed by the learned trial court. In appeal, preferred before the learned first Appellate Court by the plaintiff/appellants against the judgment and decree rendered by the learned trial Court, the learned first Appellate Court affirmed the findings, recorded by the learned trial Court. 9. The limited submission addressed before this Court by the learned counsel for the appellants to render frail and feeble the judgment and decree rendered by the learned first appellate court, besides it being vitiated, is anvilled on the factum of the learned First Appellate Court having omitted to render an adjudication on an application filed before it by the plaintiff/appellants under Order 41 Rule 27 CPC for placing on record the judgment and decree of 31.7.1997 rendered in a previous suit inter partes the parties at lis herein. The plaintiff had claimed in the instant suit that he is an allottee of the suit land under a grant/patta made in his favour by the State of Himachal Pradesh. The defendants/respondents claimed to be tenants therein, besides they claimed that they have acquired title as owners to the suit land by prescription arising from efflux of time, inasmuch as they carried the requisite animus possidendi for the prescribed statutory period for securing vestment of title in them qua the suit land. In the instant suit, an apposite issue qua theirs having acquired title by adverse possession qua the suit land was struck by the learned trial court. The learned trial court while considering the material available on record rendered findings in favour of the defendants on the said issue. In the instant suit, an apposite issue qua theirs having acquired title by adverse possession qua the suit land was struck by the learned trial court. The learned trial court while considering the material available on record rendered findings in favour of the defendants on the said issue. However, the counsel for the plaintiff/appellants submits that he had concerted to repulse the factum of the defendants having acquired title to the suit property by way of adverse possession by his taking to institute an appropriate application under the provisions of Order 41 Rule 27 CPC for placing on record a judgment rendered in Civil Suit No.298/89, wherein it has been held that the defendants herein, who were the plaintiffs in the earlier suit were evictable from the suit land in accordance with law. Consequently, he hence contends that the plaintiff had a tenable right ensuing from a previous conclusive determination qua the suit land inter partes the parties at lis herein to claim possession of the suit property from the defendants. He further contends that an adjudication on his application under Order 41 Rule 27 CPC by the learned First Appellate Court would have hence facilitated the striking of an apposite issue, inasmuch as when in the previous suit, the defendants had omitted to raise the plea of theirs having acquired title qua the suit land by way of adverse possession, which is the manner in which they claim acquisition of title to the suit property in the instant suit, they for want of having raised the plea aforesaid in the earlier suit, theirs being barred/interdicted by order 2 Rule 2 CPC as well as by their acquiescence manifested by their omission to raise the said plea previously hence consequently theirs being estopped to raise the plea aforesaid in the instant suit. Only in the event of an adjudication having been rendered by the learned first appellate court on the application filed before it under Order 41 Rule 27 CPC and thereby on its adjudication in favour of the plaintiff, the plaintiff/appellants then being permitted to adduce into evidence the previous judgment aforesaid would have facilitated and equipped the learned first appellate court to take grip of the fact of the previous adjudication wherein the defendants, who were plaintiffs in the previous suit while having omitted to claim title to the suit land by way of adverse possession, being precluded by statutory estoppel to extantly claim title in the manner aforesaid to the suit property. Consequently, when as a natural corollary the learned first appellate court has been as such constrained not to strike an apposite issue ensuing from the legal bar contemplated/arising from Order 2 Rule 2 CPC as well as from their acquiescence portrayed by their omission to previously raise the said plea in their plaint, especially when its adduction would have facilitated the striking of an apposite issue and concomitant rendition of findings qua it. In sequel, thereto, the inference which fosters is that the non adjudication of the application under Order 41 Rule 27 CPC by the learned first appellate Court has besides precluded as well as prevented the plaintiff/appellants to canvass theirs now having a tenable right to claim possession of the suit property, inasmuch, as, theirs having a ripened legal right to estop the defendants from canvassing theirs having acquired title to the suit property by way of adverse possession. Sequelly, when its non-adjudication has deterred a conclusive determination of the entire gamut of the controversy, hence, as a natural corollary miscarriage of justice has been occasioned. Therefore, for facilitating an effective adjudication of the entire gamut of controversy besetting the parties, it is deemed fit, just and expedient at this stage to hold that the omission of rendition of an adjudication by the learned first appellate court on an application under Order 41 Rule 27 CPC while precluding the plaintiffs to adduce into evidence the previous judgment inter partes has, hence, de-facilitated a clinching determination by the learned first Appellate Court qua the entire gamut of the controversy. Naturally then the impugned judgment and decree are set aside and the matter is remanded to the learned first appellate court to render a decision on the application filed by the plaintiff/appellants under Order 41 Rule 27 CPC. In case the learned first appellate court comes to on the application aforesaid record findings in favour of the plaintiffs, it shall proceed to strike an appropriate issue qua it against which all the parties shall be afforded an opportunity to contest and adduce evidence. On receipt of evidence on the apposite issue, the learned First Appellate Court shall record its findings thereon. The parties through counsel are directed to appear before the learned trial Court on 27.11.2014. The learned first appellate court is directed to complete the entire proceedings within six months. Records of the Courts below be sent back forthwith so as to reach there well before the said date. 10. With the aforesaid observations, the appeal is disposed of, without, at this stage, for the aforesaid reasons, answering the substantial questions of law. Pending applications, if any, are also disposed of. No costs.