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2014 DIGILAW 1518 (HP)

Babu Ram v. Ganpat Ram

2014-10-28

SANJAY KAROL

body2014
JUDGMENT : Sanjay Karol, J. 1. Plaintiff-appellant Babu Ram (hereinafter referred to as the plaintiff) has filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 24.3.2003, passed by the learned Additional District Judge, Solan, in Civil Appeal No. 27-S/13 of 2002, titled as Babu Ram vs. Ganpat Ram and Others, whereby judgment and decree dated 20.4.2002, passed by the Sub Judge 1st Class, Arki, in Civil Suit No. 81/1 of 1995/2001, titled as Baboo Ram vs. Ganpat and Others, stands affirmed. 2. Plaintiff Babu Ram filed a suit, seeking declaration that he is owner in possession of suit property and that defendants-respondents Ganpat Ram and others (hereinafter referred to as the defendants) be restrained from interfering with his peaceful possession. 3. Trial Court decreed the suit, vide judgment and decree dated 12.7.2000, passed in Civil Suit No. 81/1 of 95, titled as Baboo Ram vs. Ganpat Ram and others, holding the plaintiff to be in possession and perfected his title by way of adverse possession. In the defendants' appeal, such findings of act, judgment and decree was reversed and with the framing of an additional issue, the matter was remanded back to the trial Court for consideration afresh. This was so done by the Additional District Judge, vide judgment and decree dated 7.11.2001, passed in Civil Appeal No. 21-S/13 of 2000. 4. Thus, with the remand of case, trial Court was required to adjudicate, afresh, the following issues: 1. Whether the plaintiff has become owner of the suit land i.e. Khasra numbers 224/83/1, 224/83/3 as alleged? OPP 2. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, if issue No. 1 is proved in affirmative? OPP 3. Whether the plaintiff has no locus-standi and cause of action to file the suit? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff is estopped to file the suit by his act and conduct? OPD 6. Whether the suit is bad for want of proper particulars? OPD 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 8. Whether this court has no jurisdiction to entertain the suit? OPD 8-A Whether the plaintiff has become owner in possession of the suit land by way of right of adverse possession? OPP 9. Relief. OPD 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 8. Whether this court has no jurisdiction to entertain the suit? OPD 8-A Whether the plaintiff has become owner in possession of the suit land by way of right of adverse possession? OPP 9. Relief. 5. Based on the evidence so led by the parties, trial Court dismissed the suit, holding the plaintiff not to have established either his possession or ownership by way of title or adverse possession over the suit land. Such findings of fact now stand affirmed by the lower Appellate Court. 6. Present appeal stands admitted on the following substantial questions of law: 1. Whether the appellant being in possession of the suit land, therefore, relief of Permanent Prohibitory Injunction was required to be granted? 2. Whether the presumption of truth attached to the entries in the revenue record with respect to the suit land has been rebutted as also observed by the Ld. Sub Judge while passing the order dated 12.7.2000? 3. Whether material admission about the claim of the appellant made by the respondents has wrongly been ignored and thus the controversy has not been properly considered? Substantial Questions of Law No. 1 & 2 7. Both these substantial questions of law are interconnected, hence are being discussed and answered together. 8. Plaintiff is resting his claim of title and possession on the basis of Tatima (Ex. PW-2/A), so proved on record by Patwari Krishan Lal (PW-2), who incidentally is not competent to carry out demarcation. Thus, except for uninspiring oral testimony of the plaintiff, there is nothing to prove either title or adverse possession over the suit land. 9. On the other hand, it stands proved on record by the defendants, through the testimony of Patwari Krishan Lal (DW-1), who has proved Tatima (Ex. DW-1/A) and other independent witnesses, namely Dhani Ram (DW-2), Ganpat (DW-3) and Kanshi Ram (DW-4) that the land in question, though co-owned, is exclusively possessed by them, the land possessed separately by respective parties is divided by a Kuhl (water channel) and even as per version of Lekh Ram (PW-3), land on the upper side of the Kuhl is possessed by defendant Ganpat, who also has his cattle shed there and the land on the lower side is in possession of plaintiff Babu Ram. It also stands admitted by the witness that the land is possessed and owned by respective land owners. It has also come on record through the testimony of the witnesses that parties have their cow-sheds on their respective portions of land, boundaries whereof are clearly demarcated. 10. Plaintiff has not been able to establish his exclusive possession over the suit land. 11. In any event, it is a settled position of law that mere possession for howsoever length of time does not result in converting permissible possession into adverse possession. [Thakur Kishan Singh (Dead) vs. Arvind Kumar, (1994) 6 SCC 591 ]. 12. It is also a settled position of law that once a party is able to prove its title, the onus of proof would be on the other party to prove the claims of title. [P.T. Munichikkanna Reddy and Others vs. Revamma and Others, (2007) 6 SCC 59 ]. 13. Declaration of ownership under Section 34 of the Specific Relief Act, 1963, on the basis of adverse possession cannot be sought by the plaintiff. Claim of ownership by way of adverse possession can be made only by way of defence, when arrayed as defendant in proceedings against him. [See: Gurdwara Sahib vs. Gram Panchayat Village Sirthala and Another, (2014) 1 SCC 669 and Tribhuvanshankar vs. Amrutlal, (2014) 2 SCC 788 .] 14. A person claiming adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. All ingredients including animus dissidendi has not to be only pleaded but proved on record. [See: State of Haryana vs. Mukesh Kumar and Others, (2011) 10 SCC 404 ]. 15. Adverse possession does not begin to operate until title thereof over the disputed property is renounced by the true owner. [See: L. N. Aswathama and Another vs. P. Prakash, (2009) 13 SCC 229 ]. 16. In fact the apex Court, referring to the earlier decisions rendered in Munichikkanna Reddy (supra), in Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan and Others, (2009) 16 SCC 517 , directed the Union of India to consider making suitable changes in the law of adverse possession. 17. 16. In fact the apex Court, referring to the earlier decisions rendered in Munichikkanna Reddy (supra), in Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan and Others, (2009) 16 SCC 517 , directed the Union of India to consider making suitable changes in the law of adverse possession. 17. The apex Court while considering the cases where Government land is involved observed practical difficulties in keeping watch over vast tracks of open land and held that the Court is duty bound to act with greater seriousness, care and circumspection where plea of adverse possession is taken by unauthorized occupants/encroachers/land grabbers. [Mandal Revenue Officer vs. Goundla Venkaiah and Another, (2010) 2 SCC 461 ]. 18. In any event, plaintiff has failed to establish his exclusive possession over the suit land. Hence, no relief of injunction, as prayed for, much-less declaration, can be granted. Entries in revenue record are rebuttable. In the instant case, Patwari was not competent to prepare revenue record, so relied upon by the plaintiff, which in any event stands refuted by the revenue record so produced on record by the defendant. 19. Substantial Questions of Law No. 1 and 2 are answered accordingly. Substantial Question of Law No. 3 20. While addressing on this question, Mr. G.D. Verma, learned Senior Advocate, has invited attention to the following findings returned by the trial Court, in judgment dated 12.7.2000, passed in Civil Suit No. 81/1 of 1995: "..........In his statement Ganpat has admitted that the defendant namely Babu Ram (now plaintiff in the present suit) is in possession of 8-10 biswa of land out of the suit land i.e. total land measuring 2 bighas. He has also admitted that the defendant Babu Ram etc. are having two cowsheds on this land, on is old construction and other one was constructed about 5-7 years back. This statement was recorded on 19.8.1994. This admission by the defendant Ganpat is clear and unambiguous. So there is no reason to disbelieve it and the defendant cannot regal (Sic: wriggle) out of it now. This admission further prove the case of the plaintiff. As per law when a thing or state of thing is shown to have exist sometimes presumption of it continuity/ existence both forward and backward may be drawn. So there is no reason to disbelieve it and the defendant cannot regal (Sic: wriggle) out of it now. This admission further prove the case of the plaintiff. As per law when a thing or state of thing is shown to have exist sometimes presumption of it continuity/ existence both forward and backward may be drawn. When the defendant has admitted the existence f the cowsheds of the plaintiff and his possession over those cowsheds then from this evidence coupled with the other evidence on the record it can be presumed that the cowsheds in question were constructed only the predecessor of the plaintiff and the plaintiff is in possession of the same since the year 1960. There is nothing on the record to show that there was any break in the possession of the plaintiff or he was ever dispossessed from the suit land at any point of time. There is nothing on the record to show that the defendants ever filed any suit etc. to get back the possession from the plaintiff. There is sufficient evidence on the record to prove that the cowsheds in question are on the land of the defendants and the defendants are having knowledge about right from the very beginning about the possession of the plaintiff. It can be presumed that the adverse possession or hostile title of the plaintiff started since the year 1960 when the predecessor of the plaintiff raised construction of cowshed on the land of defendants." 21. Now significantly, such findings stood reversed by the lower Appellate Court, when the matter was remanded back for adjudication of all issues including the additional issue. This was so done in terms of judgment and decree dated 7.11.2001, passed in Civil Appeal No. 21-S/13 of 2000. Thus, the contention so urged is unsustainable in law. Significantly, defendant has nowhere admitted exclusive possession of the plaintiff over the suit land. 22. Substantial Question of Law No. 3 is answered accordingly. 23. As such, it cannot be held that findings returned by the Courts below are illegal, perverse and/or erroneous, warranting interference by this Court. Substantial questions of law are answered accordingly. 24. For all the aforesaid reasons, the appeal is dismissed and disposed of, so also the pending applications, if any. Appeal dismissed.