Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 421 (HP)

Rattan Lal v. Sandesh Kumari

2014-04-21

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, J. The plaintiff is the appellant before this Court, who had filed a suit for declaration that he is owner in possession of the land measuring 0-3 bigha, comprised in Khasra No.228/1, Khata/Khatauni No.23 min/28 out of total land measuring 1-13 bighas, comprised in Khasra No.228, Khata/Khatauni No.23min/28, situate in Village Patta, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, (hereinafter referred to as the suit land) by virtue of adverse possession and prayed for a decree of injunction restraining the defendants/respondents from interfering in any manner in his possession. It was averred that the plaintiff had purchased a house situate over the suit land from Chaudhary, son of Fattu, which was a tin-roofed house and measuring 25 ½ x 13 ½ feet and was having a verandah/palli. The said house was situate over the land comprised in Khasra Nos.775, 776 and 779 old and the said house was purchased vide agreement dated 21.09.1954 and alongwith house, plaintiff is in possession of land 7 to 8 feet towards the sides of the house excluding the verandah/palli. 2. It was further averred that the possession of the plaintiff was never objected to by the owner or by the successors of Chaudhary. Now, the plaintiff has become owner in possession of the suit land by way of adverse possession. It was further contended that the plaintiff was enjoying the possession of the suit land adverse, peacefully and continuously. Earlier a Civil Suit was filed by Samond Singh son of Gusaun, which was dismissed on 10.12.1984 and after the dismissal of the said suit, the plaintiff is also in continuous, open and peaceful possession of the suit land. It was further contended that since the defendants have now started causing interference in possession of the plaintiff in the suit land and are threatening to dispossess the plaintiff, hence the suit was filed for seeking relief as prayed for in the plaint. 3. The defendants resisted and contested the suit by filing written statement wherein preliminary objections regarding maintainability, locus-standi, valuation, estoppel, non-joinder of necessary parties and cause of action were raised. On merits, it was averred that infact the house which is in possession of plaintiff is situate over the land measuring 2-0 biswas, comprised in Khasra No.228/1 and the rest of the suit land comprised in Khasra No.228/2 measuring 1-11 bigha is in possession of the defendant. On merits, it was averred that infact the house which is in possession of plaintiff is situate over the land measuring 2-0 biswas, comprised in Khasra No.228/1 and the rest of the suit land comprised in Khasra No.228/2 measuring 1-11 bigha is in possession of the defendant. It was further averred that the plaintiff had filed an application for the correction of revenue entries before Tehsildar, which had already been dismissed on 21.05.1999. Shri Kishori Lal, the predecessor-in-interest, of the plaintiffs, on 21.09.1954 requested Shri Chaudhary Ram, the father of the defendant No.1, to give him shelter in his house and as such the house 9x17 hath situate in the suit land measuring 2 biswas with courtyard was given to Kishori Lal. 4. It was also averred that Kishori Lal, predecessor-in-interest, of the plaintiffs took the possession of the house and there was understanding that house will be vacated as and when said Kishori Lal would construct his own house. Chaudhary Ram had given permissive possession of the said house on 21.09.1954 and no writing was executed on 21.09.1954. It was further contended that if there is any writing, that is a false and forged document. The plaintiffs are in permissive possession of the land measuring 2 biswas comprised in Khasra No.228/1, therefore, the question of adverse possession does not arise. It was also averred that the defendant No.1 had requested the plaintiffs to vacate the suit land but the plaintiffs have started asserting their ownership over the same. 5. The defendant Janki Devi had also filed counter claim, in which, she averred that her father Chaudhary Ram took pity and gave the house situate in the suit land measuring 2 biswas comprised in Khasra No.228/1 to Kishori Lal, the predecessor-in-interest, of plaintiffs and no writing was effected on 21.09.1954. It was averred that the predecessor-in-interest of the plaintiffs was in permissive possession of the land measuring 2 biswas, comprised in Khasra No.228/1 and as such counter claimant/defendant No.1 Smt. Janki Devi is entitled for the possession of the said land after demolishing the house situate over the same. 6. In the replication-cum-written statement to the counter claim, the allegations made in the written statement-cum-counter claim were denied and averments made in the plaint were reiterated. 6. In the replication-cum-written statement to the counter claim, the allegations made in the written statement-cum-counter claim were denied and averments made in the plaint were reiterated. It was averred in the replication that the plaintiffs are in possession of 3 biswas of land comprised in Khasra No.228/1 and now they have become owners of the same by way of adverse possession. 7. On the pleadings of the parties, the following issues were framed by the learned trial Court on 17.03.2004:- 1. Whether the plaintiffs have become owner of the suit land by way of adverse possession? OPP 2. Whether the entries in the revenue record with regard to the suit land in favour of defendants are wrong, illegal, and not binding on the plaintiffs? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiffs have no locus standi to file the present suit? OPD 5. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD 6. Whether the plaintiffs are estopped from filing the present suit? OPD 7. Whether the suit is bad for non-joinder of necessary parties? OPD 8. Whether the plaintiffs have no cause of action to file the present suit? OPD 9. Whether the vacant possession of the land measuring 0-2 bigha comprised in Khasra No.228/1 out of the suit land is liable to be vacated and the possession handed over to the defendants by the plaintiffs as claimed in the counter claim? OPD 10. Relief. 8. After recording the evidence adduced by the parties, the learned trial Court decreed the suit of the plaintiffs/appellants and dismissed the counter claim of the defendants/respondents. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants/respondents preferred an appeal before the learned lower appellate Court, who vide his judgment and decree dated 12.06.2008 has been pleased to set aside the judgment and decree passed by the learned trial Court by dismissing the suit of the plaintiffs/appellants and decreeing the counter claim of the defendants/respondents for possession of the suit land by demolition of the house. It is this judgment and decree which are under challenge before this Court. On 20.08.2008, this Court admitted the appeal on the following substantial questions of law:- 1. Whether the Ld. It is this judgment and decree which are under challenge before this Court. On 20.08.2008, this Court admitted the appeal on the following substantial questions of law:- 1. Whether the Ld. Lower Appellate court erred in law in appreciating the fact that plaintiff had become the owner of the suit land by way of adverse possession on account of direct admission by defendant No.1 in her cross examination that plaintiff is in possession right from 21.09.1954 and the possession had been taken by force at that time? 2. Whether Ld. Lower Appellate court erred in law holding that certified copy of the agreement Ex P-1 cannot be read in evidence for collateral purposes i.e. for proving the mode of possession on the suit land? 3. Whether the Ld. Lower Appellate Court below misconstrued and mis-appreciated the testimony DW-1/A of DW-1 whereby the factum of adverse possession was admitted by her self and more importantly the plea of tenancy was denied by her in her examination in chief? 4. Whether Ld. Lower Appellate court failed to appreciate the fact that counterclaim filed by the defendant was barred in view of the provisions of law contained in section 11 Explanation IV, Order 2 Rule 2 of the Code of Civil Procedure and on account of estoppel? 5. Whether defendant No.1 is estopped to raise the plea of permissive possession in view of the dismissal of her earlier suit regarding the same subject matter in which the issue of adverse possession was also framed? 9. Since these questions are inter-related and interconnected, I propose to deal with them through common reasoning. 10. I have heard Shri Mohit Thakur, Advocate, for the appellants and Shri Rajnish K.Lal, Advocate vice Mr.Sanjeev Sood, Advocate, for respondent No.1 and gone through the records of the case. 11. It is not in dispute that infact the suit filed by the plaintiffs on the plea of adverse possession was not at all maintainable. Since the plea of adverse possession is only available as a shield and not as a sword as held by the Hon’ble Supreme Court in Gurdwara Sahib versus Gram Panchayat Village Sirthala and another (2014) 1 SCC 669 wherein the Hon’ble Supreme Court has observed as under:- “8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. 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.” 12. However, since the plaintiffs/appellants raised the plea of adverse possession in their written statement to the counter claim preferred by the defendants/respondents, this plea would necessarily have to be adjudicated upon as it is settled law that the counter claim for all intends and purposes is a separate suit. 13. The learned trial Court in order to uphold the plea of adverse possession has basically relied upon the selective reading of the cross-examination of the defendant Janki Devi and has relied upon the defence taken up by the plaintiff in one earlier suit titled Samond Singh versus Kishori regarding his adverse possession which was ultimately dismissed in default on 10.12.1984 wherein the defendant was also a party. This suit had been instituted in the year 1979 and Janki Devi had filed an application under Order 1 Rule 10 CPC to implead her as a party and vide order dated 04.06.1979 she was arrayed as a party. 14. The learned lower appellate Court, on the other hand, however, discussed in detail the statement of Janki Devi as also the fact of Civil Suit No.24/1 of 1979 Ex. RW1/B and came to the conclusion that the learned trial Court had infact not read the entire statement of Smt. Janki Devi and had only relied upon selective portions of the same. The learned lower appellate Court also came to a definitive conclusion that no doubt the plea of adverse possession had been raised in the earlier suit Ex.RW1/B but the learned trial Court had ignored a vital piece of admission that too in writing by way of application submitted by the plaintiff himself for correction of the revenue records and proved on record as Ex.DW2/ B, wherein the appellant admitted the defendant to be the owner of the property and claimed himself to be the tenant thereof. 15. This application Ex.DW2/B is dated 05.07.1996 and obviously the same could have been presented only after its preparation i.e. 05.07.1996. 15. This application Ex.DW2/B is dated 05.07.1996 and obviously the same could have been presented only after its preparation i.e. 05.07.1996. Once this is the position existing on the record, I cannot agree with the contention of the appellants that they are in adverse possession since 21.09.1954 as claimed by them in their written statement to the counter claim. 16. Even otherwise, I fail to understand as to how the plaintiffs can take three different pleas i.e. of ownership, adverse possession and tenancy. The plea of ownership by way of adverse possession is self contradictory plea and for this a reference can be conveniently made to the observations of the Hon’ble Supreme Court in MOHAN LAL (DECEASED) THROUGH HIS LRS. KACHRU AND OTHERS vs. MIRZA ABDUL GAFFAR AND ANOTHER (1996) 1 SCC 639 in which it has been held as under:- “As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independenthostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e., upto completing the period of his title by prescription ‘nec vi, nec clam, nec precario’. Since the appellant’s claims is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.” 17. The learned counsel for the appellants would then cite the judgment of the Hon’ble Supreme Court in Praful Manohar Rele versus Smt. Krishnabai Narayan Ghosalkar & Ors. in Civil Appeal No. 50 of 2014 to contend that even if the pleas were mutually destructive, the main plea was that of adverse possession and incase same was proved, then the alternative plea had paled into insignificance and for this purpose he has particularly relied upon the observations made by the Hon’ble Supreme Court as under:- “18. The plaintiff-appellant in the case at hand had set up a specific case that the defendant as also his legal representative after his demise were occupying the suit premises as licensees which licence had been validly terminated. The plaintiff-appellant in the case at hand had set up a specific case that the defendant as also his legal representative after his demise were occupying the suit premises as licensees which licence had been validly terminated. In the reply to the notice the case of the defendants was that were in occupation of the suit premises not as licensees but as tenants. The plaintiff was, therefore, entitled on that basis alone to ask for an alternative relief of a decree for eviction on the grounds permissible under the Rent Control Act. Such an alternative plea did not fall foul if any of the requirements/tests set out in the decision of this Court in J.J. Lal’s case (supra). We say so because the written statement filed by the defendant contained an express admission of the fact that the property belonged to the plaintiff and that the defendants were in occupation thereof as tenants. At the trial court also the question whether the defendants were in occupation as licencee or as tenants had been specifically put in issue thereby giving the fullest opportunity to the parties to prove their respective cases. There was no question of the defendants being taken by surprise by the alternative case pleaded by the plaintiff nor could any injustice result from the alternative plea being allowed and tried by the Court. As a matter of fact the trial Court had without any demurrer gone into the merits of the alternative plea and dismissed the suit on the ground that the plaintiff had not been able to prove a case for eviction of the defendants. There was thus not only a proper trial on all those grounds urged by the plaintiff but also a judgment in favour of the defendant respondents. Last but not the least even if the alternative plea had not been allowed to be raised in the suit filed by the appellant he would have been certainly entitled to raise that plea and seek eviction in a separate suit filed on the very same grounds. The only difference may have been that the suit may have then been filed before the Court of Small Causes but no error of jurisdiction was committed in the instant case as the finding recorded by the Civil Court was that the defendants were licensees and not tenants. The only difference may have been that the suit may have then been filed before the Court of Small Causes but no error of jurisdiction was committed in the instant case as the finding recorded by the Civil Court was that the defendants were licensees and not tenants. Superadded to all these factors is the fact that the appellate Court had granted relief to the appellant not in relation to the alternative plea raised by him but on the principal case set up by the plaintiff. If the plaintiff succeeded on the principal case set up by him whether or not the alternative plea was contradictory or inconsistent or even destructive of the original plea paled into insignificance.” 18. There can be no quarrel with the above proposition of law provided the appellant succeeds in proving his principal case which plea as observed earlier the appellants have failed to prove. 19. The learned counsel for the appellants has then vehemently contended that since there is no plea of tenancy raised by either of the parties, therefore, the application Ex.DW2/B would be totally insignificant and admission thereupon cannot be relied upon. I cannot agree with the submissions made by the learned counsel for the appellants. It is settled law that admission is the best piece of evidence. It is admitted by the plaintiff that he had preferred this application for correction of the revenue records. Once this is the position, the plaintiff cannot wriggle out from the contents of this application and, therefore, if the plaintiff has considered himself to be the tenant and has attorned to the title of the defendant till as late as 05.07.1996, then plea of adverse possession in the present suit even by way of a sword or a shield would not be available since the suit itself had been instituted by the plaintiff on 04.08.1997. The earlier suit Ex.RW1/B was not decided on merits, therefore, neither the bar under Section 11 Explanation IV would be attracted nor would the provisions of Order 2 Rule 2 of Civil Procedure Code apply to the present case. 20. The earlier suit Ex.RW1/B was not decided on merits, therefore, neither the bar under Section 11 Explanation IV would be attracted nor would the provisions of Order 2 Rule 2 of Civil Procedure Code apply to the present case. 20. Even if, the agreement Ex.P-1 is taken into consideration, the same in no manner would improve the case and would rather demolish the entire case set up by the plaintiff since it is primarily based on the plea of adverse possession and not on ownership or part performance whereas the agreement purports to be some sort of agreement to sale. The substantial questions of law, as framed, are answered against the appellants. 21. In view of the detailed discussion hereinabove, I find no merit in the appeal and accordingly the same is dismissed, so also the pending application(s), if any, with no order as to costs.