Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1545 (HP)

Sher Singh v. Virender Singh

2014-10-31

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : Tarlok Singh Chauhan, J. This appeal is directed against the judgment and decree dated 29.11.2013 passed by the learned Additional District Judge (I), Mandi (Camp at Sundernagar) in Civil Appeal No. 80 of 2013 whereby he affirmed the judgment and decree dated 26.11.2012 passed by the learned Civil Judge (Senior Division), Court No.1, Sundernagar, District Mandi, in Civil Suit No.52/2008 dismissing the suit of the appellantsplaintiffs (hereinafter referred to as the plaintiffs). 2. ?Key facts? leading to the filing of the appeal may be noticed thus. 3. The plaintiffs had filed a suit for declaration that they are owners in possession over the land comprised in Khata/Khatauni No. 24/58, Khasra No.3, 14,15, plots-3, measuring 8-5-19 bighas, situate in Mauza Rangar/33, Sub Tehsil Nihri, Tehsil Sundernagar, District Mandi (hereinafter referred to as the suit land) and the revenue entries reflecting the respondents/defendants (hereinafter referred to as the defendants) as owners in possession over the suit land be declared wrong, illegal, null and void and the defendants be restrained from interfering in any manner over the suit land by way of permanent prohibitory injunction. It was averred that the suit land is recorded in the ownership of Mani Ram and Hari Singh to the extent of half shares each and as per remarks, Hari Singh has expired and had been succeeded by the defendants and further Mani Ram had transferred his half share in favour of the plaintiffs. Mani Ram and Hari Singh were real brothers of father of the plaintiffs namely Khub Ram, who was posted as Patwari in 1970 at Muhal Rangar. The suit land was earlier owned by one Luharu and Khub Ram, predecessor-in-interest, of the plaintiffs had purchased the suit land from him on 25.01.1970 for a consideration of Rs.5,000/- and purchase money was paid by Khub Ram to said Luharu and eversince Khub Ram possessed the property and after his death the same has been inherited by the plaintiffs as his legal heirs. 4. It was further averred that Hari Singh was younger brother of Khub Ram and died in 2007 leaving behind the defendants as his legal heirs. 4. It was further averred that Hari Singh was younger brother of Khub Ram and died in 2007 leaving behind the defendants as his legal heirs. In July, 2007, the defendants started proclaiming themselves to be the owners of the suit land to the extent of half shares and after obtaining the revenue record, the plaintiffs came to know about the entries in the revenue record in favour of Mani Ram and Hari Singh. On inquiry, it was found that Khub Ram purchased the land from Luharu in 1970 and the purchase money was paid by Khub Ram to Luharu. Though the property was purchased by Khub Ram in the names of Mani Ram and Hari Singh as Benami Transaction, neither they paid the purchase money nor ever they possessed the property in any capacity. It was also averred that thereafter plaintiffs asked the defendants and Mani Ram to admit the claim of the plaintiffs as owners of the suit land and get the revenue entries corrected. Mani Ram transferred his share in the name of the plaintiffs but the remaining defendants refused to transfer the property in the name of the defendants on 04.05.2008. The plaintiffs averred that neither Mani Ram nor the defendants were in possession of the suit land at any time and their names figured in the revenue record as owners only on account as =Benami' Transaction effected by Khub Ram in their names. The plaintiffs averred that the act of Khub Ram was prior to coming into force of the =Benami' Transactions (Prohibition) Act, 1988 and the possession of the plaintiffs is open, continuous and hostile to the knowledge of the defendants and has matured into ownership by way of adverse possession since the possession of plaintiffs and their predecessor-in-interest Khub Ram over the suit land is continuous since 25.01.1970 and had matured into ownership by way of adverse possession on 26.01.1982, hence this suit was filed. 5. The suit was contested by the defendants No.1 to 4 by filing written statement on the grounds of maintainability, valuation, estoppel and it was averred that the alleged transaction sought to be enforced by the plaintiffs is prohibited under law and moreover the suit land is an orchard and the court fee is payable on its value. 5. The suit was contested by the defendants No.1 to 4 by filing written statement on the grounds of maintainability, valuation, estoppel and it was averred that the alleged transaction sought to be enforced by the plaintiffs is prohibited under law and moreover the suit land is an orchard and the court fee is payable on its value. The defendants admitted that the land was earlier owned and possessed by Luharu, however, it was denied that Khub Ram purchased the land from Luharu and possessed the same as owner till his death. The defendants averred that the ownership of Hari Singh and Mani Ram qua the suit land was in the knowledge of the plaintiffs and denied the averments contrary made by the plaintiffs. The plaintiffs had purchased the suit land regarding the share of Mani Ram vide registered sale deed No.24 dated 23.01.2008 and were compelling the defendants to sell their shares and when they refused, the plaintiffs filed the suit against them. The defendants prayed for dismissal of the suit. The proforma defendant Mani Ram in his written statement admitted the claim of the plaintiffs. 6. Plaintiffs filed replication re-asserting the averments made in the plaint and refuting the averments made by the defendants in the written statement. 7. On the pleadings of the parties, the following issues were framed by the learned trial Court on 10.09.2009:- 1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP 2. Whether the entries in the names of the defendants as owners in possession qua the suit land is null and void? OPP 3. Whether the plaintiffs are entitled for the decree of permanent prohibitory injunction against the defendants qua the suit land as alleged? OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Whether proper court fee has not been affixed as alleged ? OPD. 6. Whether the plaintiffs are estopped to file present suit by their own acts, conduct and acquiescence? OPD. 7. Relief. 8. After recording and evaluating the evidence, the learned trial Court on 26.11.2012 dismissed the suit filed by the plaintiffs. The appeal filed by the plaintiffs against the judgment and decree of the learned trial Court was also dismissed by the learned lower appellate Court on 29.11.2013 and this is how the matter has reached before this Court. 9. Relief. 8. After recording and evaluating the evidence, the learned trial Court on 26.11.2012 dismissed the suit filed by the plaintiffs. The appeal filed by the plaintiffs against the judgment and decree of the learned trial Court was also dismissed by the learned lower appellate Court on 29.11.2013 and this is how the matter has reached before this Court. 9. I have heard the learned counsel for the parties and gone through the records of the case. 10. The learned counsel for the plaintiffs has vehemently contended that the learned Courts below have failed to take into consideration the provisions of Section 3 sub-section (a) and (b) of =Benami' Transactions (Prohibition) Act, 1988 ( hereinafter referred to as =the Act') and thereby reached a wrong conclusion. It is further contended that the learned trial Court could not have given a findings on the point of adverse possession without framing a specific issue with respect thereto. 11. Insofar as the first contention is concerned, the plaintiffs in their pleadings themselves had contended that the transaction between Luharu and Khub Ram was =Benami' transaction in the names of Mani Ram and Hari Singh and purchase money was paid by Khub Ram and the land was also possessed by Khub Ram after purchase thereof. It was thereafter contended that since the transaction was entered prior to coming into force of the Act, therefore, bar under the said Act could not apply to them. But, then since the transaction was admitted to be a =Benami' transaction, therefore, no suit, claim or action to enforce any right in respect of =Benami' transaction entered even prior to coming into force of the Act was barred under Section 4 of the Act. This was so held by the Hon'ble Supreme Court in its three Judges' decision in R. Rajagopal Reddy (dead) by L.R.s and others versus Padmini Chandrasekharan (dead) by L.R.s, AIR 1996 SC 238 wherein the earlier decision in Mithilesh Kumari and another versus Prem Behari Khare AIR 1989 SC 1247 was over-ruled. Yet, again in Smt.Rebti Devi versus Ram Dutt and another AIR 1998 SC 310 it has been explained that even if transaction had been entered into prior to coming into force of the Act i.e. 19.05.1988, even then no suit could be filed on the basis of such a plea. This contention is answered accordingly. 12. Yet, again in Smt.Rebti Devi versus Ram Dutt and another AIR 1998 SC 310 it has been explained that even if transaction had been entered into prior to coming into force of the Act i.e. 19.05.1988, even then no suit could be filed on the basis of such a plea. This contention is answered accordingly. 12. Insofar as the second contention is concerned, the learned counsel for the plaintiffs has rightly argued that there is no issue whatsoever framed with respect to the plaintiffs' having become owners of the suit land by way of adverse possession. Though, Mr. Bhagwati Chander Verma, learned counsel for the defendants would contend that the same is covered by issue No.1, but I cannot agree to this plea because issue No.1 reads as under:- ?1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP? 13. The plea of ownership simpliciter is based on the concept of title which one may have acquired through various sources like succession, gift, will, sale, exchange etc. where one is in possession of the suit land lawfully. On the other hand, when the plea of adverse possession is projected, inherent in the plea is that someone-else was the owner of the property. (See: P.Periasami (dead) by LRs. Versus P.Periathambi and others (1995) 6 SCC 523 ). To establish a claim of title by prescription, that is adverse possession for 12 years or more, possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period existing 12 years. Having said so, it can safely be concluded that the pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. (Refer: Mohan Lal (deceased) through his LRs Kachru and others versus Mirza Abdul Gaffar and Another (1996) 1 SCC 639 , L.N.Aswathama and another versus P.Prakash (2009) 13 SCC 229 ). 14. Once, the plaintiffs have raised mutually inconsistent pleas, an omnibus issue cannot be framed to determine these pleas. The suit of the plaintiffs was not maintainable when they sought to raise pleas which were mutually destructive. The plaintiffs were required to opt for either one of the two claims. 14. Once, the plaintiffs have raised mutually inconsistent pleas, an omnibus issue cannot be framed to determine these pleas. The suit of the plaintiffs was not maintainable when they sought to raise pleas which were mutually destructive. The plaintiffs were required to opt for either one of the two claims. Even in that case, the plaintiffs could have only opted to set-up the plea of title because suit for declaration on the basis of adverse possession could not have been filed as this claim can only be agitated by way of defence and can be used only as a shield and not a sword as held by the Hon'ble Supreme Court Gurdwara Sahib versus Gram Panchayat Village Sirthala and another (2014) 1 SCC 669 in the following terms:- ?8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.? 15. Surprisingly, despite there being no issue to this effect, the learned trial Court in Para-20 of its judgment has given findings on the plea of adverse possession. Admittedly, this plea in terms of Gurdwara Sahib?s case (supra) was not available to the plaintiffs and moreover these findings are beyond the scope of issues framed in this case. 16. Though, the suit is not maintainable, it needs to be clarified that in case the plaintiffs are in possession of the suit property, they cannot be disturbed except by due process of law and it further needs to be clarified that in any future litigation it shall be open to the plaintiffs to plead in defence that they had become owners of the property by way of adverse possession. This clarification has been necessitated on the basis of the following observations of the Hon'ble Supreme Court in Gurdwara Sahib?s case (supra) which reads thus:- ?10. As the appellant is in possession of the suit property since 13-4-1952 and has been granted the decree of injunction, it obviously means that the possession of the appellant cannot be disturbed except by due process of law. As the appellant is in possession of the suit property since 13-4-1952 and has been granted the decree of injunction, it obviously means that the possession of the appellant cannot be disturbed except by due process of law. We make it clear that though the suit of the appellant seeking relief of declaration has been dismissed, in case the respondents file suit for possession and/or ejectment of the appellant, it would be open to the appellant to plead in defence that the appellant had become the owner of property by adverse possession. Needless to mention at this stage, the appellant shall also be at liberty to plead that findings of Issue 1 to the effect that the appellant is in possession of adverse possession since 13-4-1952 operates as res judicata. Subject to this clarification, the appeal is dismissed.? 17. Subject to this clarification, the appeal is dismissed, so also the pending application, if any.