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2014 DIGILAW 253 (HP)

Brij Mohan Sood v. Parshotam Singh

2014-03-24

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge (Oral) The present appeal has been preferred by defendant No.2 against judgment and decree dated 5.7.2001 passed in Civil Appeal No. 35-N/XIII/98 by learned Additional District Judge-II, Kangra at Dharamshala whereby affirming the judgment and decree dated 2.2.1998 passed by learned Sub Judge 1st Class (I), Nurpur, District Kangra, H.P. in Civil Suit No. 71/1992. 2. The respondents/plaintiffs (hereinafter referred to as the ‘plaintiffs’) instituted a suit for possession by demolition of structure and tube well found on the suit land comprised in Khata No.11, Khatauni No. 55, Khasra Nos. 198, 199, 200, plot 3, area measuring 0-11-34 H.M. situated in Mohal and Mauza Baan Attahrian, Tehsil Indora, District Kangra, H.P. (hereinafter referred to as the ‘suit land’). It has been stated that the land previously was comprised in Khata No. 3 min, Khatauni No. 32, Khasra No. 13, measuring 8 kanals and was in the ownership of Smt. Chander Kanta wife of Kulbir Singh. It was under the cultivation of Bhim Singh and Prabhat Chand sons of Rasila. The suit land vested in Bhim Singh and Prabhat Chand in the year 1979-80 when the settlement operation started. The defendant who was the owner of the adjacent land started pharmaceutical manufacturing work and encroached upon the suit land. He raised the illegal construction and that apart, dug a tube well without the knowledge and consent of the plaintiffs. Therefore, the suit for possession by way of demolition of structure and removal of the tube well was filed. 3. The defendants contested the suit of the plaintiffs on the ground that they purchased the adjoining land in the year 1974-75 and since then they were in possession of the suit land and that they were the owners by way of adverse possession of the suit land having remained in continuous, open and hostile possession over the same against the original owners from 1974-75. 4. On 10.5.1994, the learned trial Court framed the following issues: 1. Whether the plaintiffs are owners of the suit land and dispossessed from the suit land? OPP 2. If issue No.1 is proved in affirmative, whether the plaintiffs are entitled for the relief as claimed? OPP 3. Whether the defendants are coming for possession of the suit land, as owners, since 1974-75, as alleged? OPD 4. Whether the suit is not within time? OPD 5. OPP 2. If issue No.1 is proved in affirmative, whether the plaintiffs are entitled for the relief as claimed? OPP 3. Whether the defendants are coming for possession of the suit land, as owners, since 1974-75, as alleged? OPD 4. Whether the suit is not within time? OPD 5. Whether the plaintiffs have no locus-standi to file the suit, as alleged? OPD 6. Whether the plaintiffs have no cause of action? OPD 7. Relief. 5. After recording the evidence, the learned trial Court decreed the suit filed by the plaintiffs and held the plaintiffs alongwith co-sharers to be entitled for possession. 6. Against the judgment and decree passed by learned trial Court, an appeal was carried forward by defendant No.2 before the learned lower Appellate Court, who vide his judgment and decree dated 5.7.2001 has been pleased to affirm the judgment and decree passed by learned trial Court. It is against these judgments and decrees passed by the learned Courts below that the appellant/defendant No.2 is in appeal before this Court. 7. The appeal came to be admitted by this Court on 25.9.2001 on the following substantial questions of law: 1. Whether ingredients of adverse possession of continuous, open and hostile ownership and possession of the defendant on the land by construction of the boiler sheds, well established a clear ouster of the plaintiffs and adverse possession of the defendant? 2. Whether the Courts below erred in law in not disposing of the application under Order 26 Rule 9 CPC for demarcation of the property when the dispute was of boundary dispute between the parties and the adjoining property admittedly belong to the defendant-appellant? 3. Whether the findings of the learned District Judge that the defendant is not the owner in possession of the property are vitiated being perverse and based on non-consideration and mis-consideration of oral and documentary evidence? 8. I have heard Mr. K.D.Sood, Senior Advocate assisted by Mr. Rajnish K. Lal, Advocate counsel for the appellant and Mr. Ajay Sharma, learned counsel for the respondents and have also gone through the records carefully. 9. Since substantial questions of law No. 1 and 3 are interrelated and inter-connected, therefore, I proceed to dispose of the same through a common reasoning. Substantial questions of law No. 1 and 3: 10. Firstly, I would advert to the pleadings with respect to the adverse possession as contained in the written statement. 9. Since substantial questions of law No. 1 and 3 are interrelated and inter-connected, therefore, I proceed to dispose of the same through a common reasoning. Substantial questions of law No. 1 and 3: 10. Firstly, I would advert to the pleadings with respect to the adverse possession as contained in the written statement. In para-1 of the preliminary objection, the defendant has averred as follows: 1974-75 and since then, the defendants are in possession of this land and they took possession of this land. The defendants are continuing in possession of this land, as owners, continuously, openly, peaceably, without any interference or interruption right from the years 1974-75 to date and have become its owners being in possession as such. Earlier it was being cultivated and for the last more than 15 years the defendants have got the pollution plant of the Factory, known as; Himachal Pharmaceuticals. There is a well also in this land alongwith the pucca shed since about 15 (fifteen) years. The defendants also have got the boiler of their factory in this land since last more than 15 years.” Similarly, in paragraph-4 of the written statement on merits, the following averments have been made: “In answer to para No.4 of the plaint, it is submitted that its contents are incorrect that constructions were raised in the year 1979-80. In fact the constructions were raised in the year 1977 and the defendants are in its possession since the years 1974-75 as owners. The plaintiffs have no concern with this land and the question of vacation of possession does not arise. The plaintiffs have no concern with this land. Bhim Singh or Parbhat Singh were never the owners of the suit land nor they ever agitated the matter since the year 1974 and now they are estopped by their act and conduct and latches. They never objected to the raising of the constructions as detailed in the preliminary objections. The plaintiffs have no right to file this suit.” 11. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is well settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario” i.e. peaceful, open and continuous. The plaintiffs have no right to file this suit.” 11. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is well settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario” i.e. peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual visible, exclusive, hostile and continued over the statutory period. Therefore, a person who claims adverse possession has to show (a) on what date he came into possession; (b) what was the nature of his possession; (c) whether the factum of possession was known to the other party ; (d) how long his possession is continued; and (e) his possession was open and undisturbed. It has to be remembered that the person pleading adverse possession has no equity in his favour since he is trying to defeat the right of the true owner, therefore, it is for him to clearly plead and establish all facts necessary to establish his adverse possession (Refer Dr. Mahesh Chand Sharma vs. Raj Kumari Sharma (Smt.) and others (1996) 8 SCC 128 ). 12. Having observed so, it is clear from the pleadings of the defendant that he has failed to plead the essential ingredients of adverse possession. In absence of the essential ingredients of adverse possession, no amount of evidence can be looked into by this Court. Even otherwise, the defendant has set-up a title in himself and has not acknowledged or attorned the plaintiffs to be the owners. Apart from preliminary objection No.1 (supra), in paragraph-3 of the preliminary objection, the defendant has made the following averments: “The plaintiffs are not the owners of the land rather the defendants are its owners and the plaintiffs have got no locus standi to file the suit.” Throughout in the written statement, the defendants have claimed themselves to be the owners of the suit property and thus the plea of adverse possession is not available to them. 13. In P. Periasami (dead) by LRs. Vs. 13. In P. Periasami (dead) by LRs. Vs. P.Periathambi and others (1995) 6 SCC 523 , the Hon’ble Supreme Court held “whenever the plea of adverse possession is projected, inherent in the plea is that someone else is the owner of the property. The pleas of title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. 14. In view of the settled proposition of law, the substantial questions of law No. 1 and 3 accordingly are answered against the defendant/appellant. Substantial question of law No.2: 15. Now, I proceed to determine the substantial question of law No.2. That an application for the appointment of Local Commissioner was preferred by the defendant before the learned lower Appellate Court containing the following averments: “2. That the appellant/applicant had constructed a tube well near the suit land i.e. Khasra No.200 and had constructed a broiler room and a store over the suit land. 3. That in order to arrive at a correct decision and in order to decide the real matters of controversy between the parties, it is just a proper that a local commissioner may be appointed to see whether the tube well, a store and a soiler room are existing over the suit land after getting the land demarcated.” 16. The reply on behalf of the plaintiffs was filed to this application wherein it was averred that “the defendants have stated in their evidence that the respondents are not the owners and have no concern with the suit land. It was further averred that the appellants want to fill up the lacuna in their case and want to create new evidence in their favour. There is no such issue regarding which L.C. be appointed. The application deserves dismissal and the same be dismissed.” 17. This application appears to have come for consideration after the completion of the pleadings on 14.9.2000, on which date the learned lower Appellate Court passed the following order: “The learned counsel for the appellant is busy in some other Court. Adjournment prayed which is not opposed. The application deserves dismissal and the same be dismissed.” 17. This application appears to have come for consideration after the completion of the pleadings on 14.9.2000, on which date the learned lower Appellate Court passed the following order: “The learned counsel for the appellant is busy in some other Court. Adjournment prayed which is not opposed. Now to come up for consideration on an application under Order 26 Rule 9 CPC on 16.11.2000.” Thereafter, the order-sheet reflects that the parties tried to compromise the matter, but could not succeed and ultimately the appeal came to be decided on 5.7.2001 and no decision on the application for appointment of Local Commissioner came to be passed. 18. Mr. K.D.Sood, Senior Advocate, assisted by Mr. Rajnish K. Lal, learned counsel for the appellant strenuously argued that the appeal deserves to be remitted since the application under Order 26 Rule 9 CPC for appointment of Local Commissioner has not been decided. On the other hand, learned counsel for the respondents/plaintiffs Mr. Ajay Sharma, contended that the appellant has failed to show as to what prejudice has caused to him by non-consideration of this application. Moreover, learned counsel for the respondents/plaintiffs further contended that there is no merit in the application and this application could be considered by this Court itself. I find substance in the contention of the learned counsel for the respondents/plaintiffs. The suit has been instituted as far back as on 19.2.1992 and I see no reason of remitting this case back to the learned lower Appellate Court to decide this application. 19. I have myself considered the application and therefore, proceed to decide the same. It is settled law that issuance of commission for local investigation is the discretion of the Court and no party can claim such relief as a right, nor the court is bound to issue a commission. While considering the prayer for appointment of commission, the court is obliged to apply its mind to the facts and circumstances of the case on hand and take an appropriate decision granting or refusing the relief. There should be sufficient basis and justification as also need and necessity for appointment of commission. It is settled law that the Court cannot be used as a means to collect evidence for a party to achieve an ulterior object. 20. There should be sufficient basis and justification as also need and necessity for appointment of commission. It is settled law that the Court cannot be used as a means to collect evidence for a party to achieve an ulterior object. 20. No grounds whatsoever having spelled out in this application which may compel this Court to appoint a Local Commissioner, more particularly, at such belated stage when not only the parties had led the evidence but the defendant/appellant had suffered a decree. The appellant has not been able to convince me as to why a Local Commissioner should be appointed in the present case, particularly when the appellant has already suffered a decree. This Court cannot be used as a means for collecting evidence on behalf of the party. 21. In view of the specific case of the defendant/appellant, I see no reason for appointing Local Commissioner as it would be of no avail apart from the fact that no ground for appointment of Local Commissioner have been made out. Accordingly, the substantial question of law No.2 is also answered against the appellant. 22. Consequently, the appeal fails and is ordered to be dismissed with costs throughout.