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2014 DIGILAW 1852 (HP)

Bias Dev v. Munshi Ram

2014-12-09

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. This appeal is directed against the judgment and decree dated 21.7.2005 rendered by the Presiding Officer, Fast Track Court, Mandi in Civil Appeal No. 84/99, 104/2004. 2. “Key facts” necessary for the adjudication of this appeal are that predecessor-in-interest of the appellant-plaintiff (herein after referred to as 'plaintiff ' for convenience sake), Sh. Janardhan filed a suit for declaration with consequential relief of possession against the respondents-defendants (hereinafter referred to as 'defendants' for convenience sake). According to the plaintiff, he was recorded owner in possession of the suit land and the defendants have no right, title and interest in the same. The entries showing the defendants in possession were wrong and illegal and not binding on the plaintiff. Defendants have raised construction over the suit land as stated in para 3 of the plaint without his consent and permission in the year 1990-91 whereas the remaining land was in possession of the plaintiff. Defendants have got themselves recorded as encroacher over the Government land during the settlement and rights to cut the grass have been conferred upon the defendants under the garb of wrong revenue entries. 3. The suit was contested by the defendants. According to the defendants, the suit land was in open, peaceful and continuous possession of the defendants since the time immemorial. The revenue entries in the revenue record were correct. Defendants have admitted that they have constructed a house over a portion of the suit land. However, it is stated that no objection was raised by the plaintiff at the time of raising construction. It was denied that the plaintiff was in possession of the suit land, but stated that the suit land was earlier Government land and the fore-father of the defendants occupied the suit land and since then he remained in continuous possession of the same. Father of the defendants died in the year 1965. 4. The replication was filed by the plaintiff. Issues were framed by the Sub Judge 1st Class on 20.4.1996. He dismissed the suit on 24.4.1999. Plaintiff preferred an appeal before the Presiding Officer, Fast Track Court, Mandi. He dismissed the same on 21.7.2005. Hence, the present Regular Second Appeal. 5. Mr. Father of the defendants died in the year 1965. 4. The replication was filed by the plaintiff. Issues were framed by the Sub Judge 1st Class on 20.4.1996. He dismissed the suit on 24.4.1999. Plaintiff preferred an appeal before the Presiding Officer, Fast Track Court, Mandi. He dismissed the same on 21.7.2005. Hence, the present Regular Second Appeal. 5. Mr. Sanjeev Bhushan, on the basis of substantial questions of law framed, has vehemently argued that both the courts below have not correctly appreciated the oral as well as documentary evidence led by the parties. According to him, defendants have not proved the ingredients of adverse possession. 6. I have heard the learned counsel for the appellant and have gone through the records carefully. 7. Plaintiff has appeared as PW-1. According to him, defendants have raised the construction prior to 1992-93. They were asked not to raise the construction. The demarcation was obtained. He has proved copy of Jamabandi for the year 1987-88 Ex.PA. 8. DW-1 Nathu Ram has deposed that the suit land was in joint possession of the defendants since the time of their ancestor. Earlier their father was in possession of the suit land. His father has made the land cultivable. They have raised the construction about 10-11 years back. No one had objected when they raised the construction. DW-1 Nathu Ram was not cross-examined regarding the fact that the suit land was in possession of the defendants since the time of their father. 9. DW-2 Bansi Ram and DW-3 Sohan Singh have deposed that the suit land was previously in possession of Daya Ram. He has made it cultivable. The house was constructed 8-9 years back. 10. DW-4 Kali Dass has deposed that he has carved out a plot on the suit land 9-10 years back. 11. The settlement, as per the record, has taken place in the year 1968. According to Jamabandi for the year 1987-88 Ex.P-1, the suit land was owned by Janardhan, predecessor-in-interest of the plaintiff and the same was recorded in possession of the defendants. Same entries were repeated in Missal Haquiat Bandobast Jadid Ex. DA and Ex. DD and also in the copies of jamabandis for the year 1992-93 Ex.DB and Ex.DC. Thus, it is amply proved that the suit land was recorded to be in possession of the defendants. Same entries were repeated in Missal Haquiat Bandobast Jadid Ex. DA and Ex. DD and also in the copies of jamabandis for the year 1992-93 Ex.DB and Ex.DC. Thus, it is amply proved that the suit land was recorded to be in possession of the defendants. It is duly established that defendants have been shown in possession of the suit land even 30 years back. The land was earlier cultivated by the father of the defendants and the house was constructed over a portion of the suit land. It was in the knowledge of the predecessor-in-interest of the plaintiff. The plaintiff has not led any tangible evidence on record to establish that his father has delivered the possession of the suit land to the predecessor-in-interest of the defendants. There is no corresponding entry of payment of rent by the predecessor-in-interest of the defendants to the plaintiff or his predecessor-in-interest. 12. Mr. Sanjeev Bhushan has vehemently argued that the defendants have admitted the title of the plaintiff over the suit land. Defendants have admitted the description of the suit land. They have admitted that according to Jamabandi, plaintiff’s father was shown in ownership and the predecessor-in-interest was shown in possession of the suit land. It does not establish that defendants have admitted the title of the plaintiff. Defendants have pleaded that they have acquired their title by way of adverse possession being in open, peaceful, continuous and hostile possession. Defendants have led sufficient evidence that they are in adverse possession of the suit land for more than 12 years. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties. There is no need to interfere with the well reasoned judgments rendered by both the courts below. 13. In view of the analysis and discussion made hereinabove, there are no substantial questions of law much less to say substantial question of law involved in the present Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.