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2014 DIGILAW 237 (HP)

Surpu v. Amar Nath Bushehri

2014-03-21

SANJAY KAROL

body2014
JUDGMENT : - Sanjay Karol, J.(oral). In this appeal, filed under Section 100 of the Code of Civil Procedure, defendant has assailed concurrent findings of fact returned by the Courts below. 2. Suit filed by the plaintiff (respondent herein) stands decreed by the Court of learned Civil Judge (Junior Division), Court No.2, Rohru, District Shimla, H.P., vide judgment dated 30.09.2010, passed in Civil Suit No.131-I of 2009, titled as Sh. Amar Nath Bushehri (Amartoo) Versus Sh. Surpu. 3. Findings of fact, judgment and decree stands affirmed by the Additional District Judge-I, Shimla, H.P. Camp at Rohru, vide judgment and decree dated 18.01.2014, passed in Civil Appeal No.29-R/13 of 2010, titled as Surpu Versus Amar Nath Busherhri (Amartoo). Plaintiff, on the strength of his ownership, filed a suit for possession against the defendant, who had no right, title or interest thereupon. 4. Defendant resisted the suit, inter alia, on the ground of recorded possession, which is hostile to the true owner having perfected his title. 5. Based on the pleadings of parties, trial Court framed the following issues:- 1. Whether the plaintiff is entitled for possession of the suit land on the basis of title, as alleged? OPP. 2. Whether the present suit is time barred, as alleged? OPD. 3. Whether the present suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged? OPD. 4. Whether this Court has no pecuniary jurisdiction to try the present suit, as alleged? OPD. 5. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD. 6. Whether the suit is bad for non-joinder and misjoinder of the necessary parties, as alleged? OPD. 7. Whether the plaintiff has suppressed and concealed the material facts, as alleged? OPD. 8. Whether the present suit is bad on account of the acts, conduct and latches on the part of the plaintiff, as alleged? OPD. 9. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD. 10. Whether the plaint has not been properly verified as alleged, if so, its effect? OPD. 11. Whether the defendant has become owner of the suit land by way of adverse possession, as alleged? OPD. 12. Relief. 6. OPD. 9. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD. 10. Whether the plaint has not been properly verified as alleged, if so, its effect? OPD. 11. Whether the defendant has become owner of the suit land by way of adverse possession, as alleged? OPD. 12. Relief. 6. Having heard learned counsel for the appellant, I am of the considered view that no question of law, much less substantial question of law arises for consideration in the present appeal. 7. Defendant’s plea of adverse possession stands rejected by the Courts below. Possession of the defendant over the suit land is claimed to be uninterrupted and continuous for the last 25 years, prior to institution of the plaint i.e. on 16.03.2009. No doubt, there is documentary evidence, exhibiting defendant’s possession, which in my considered view, has been correctly appreciated by the trial Court while returning findings to the effect, that plea of adverse possession remains unsubstantiated by him. 8. In order to establish ownership by way of adverse possession, it is settled principle of law that defendant has to prove and establish his possession, over the suit land, hostile to that of a true owner. Defendant has to specifically proclaim his intent in that regard. In the instant case, defendant through himself (DW-1) and his witnesses S/Sh.Devinder Mehta (DW-2), Jaspal (DW-3), Suresh Ram (DW-4) could not establish such fact. Significantly defendant took mutually contradictory pleas. On one hand, he claimed to have been put into possession by virtue of mortgage created by Suram Dass and on the other hand, he claimed title by way of adverse possession. 9. Consequently, I do not find any reason or ground sufficient enough to interfere with the concurrent findings of fact recorded by the Courts below. It cannot be said that the learned Courts below erred in correctly and completely appreciating the testimonies of the witnesses or that findings returned are illegal, erroneous or perverse in any manner which has resulted into miscarriage of justice. In my considered view, no question of law, much less substantial question of law arises for consideration in the present appeal. The present appeal is accordingly dismissed. Pending applications, if any, also stand disposed of accordingly.