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2014 DIGILAW 467 (HP)

Kali Dass v. Babu Ram

2014-04-25

TARLOK SINGH CHAUHAN

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Judgment Tarlok Singh Chauhan, J. 1. The plaintiff-appellant (hereinafter referred to as the plaintiff) has preferred this Regular Second Appeal against the judgments and decrees passed by the learned Courts below whereby the suit for declaration and permanent prohibitory injunction filed by the plaintiff was dismissed. 2. The plaintiff had filed a suit for declaration that he is owner in possession of suit land comprised in Khewat No.220min, Khatauni No.353, Khasra No.433, measuring 0.12 bigha, situate in Village Panjgain, Tehsil Sadar, District Bilaspur,H.P. (hereinafter referred to as the suit land) since 15.04.1975 peacefully, uninterruptedly, openly and hostile to the knowledge of the defendants-respondents (hereinafter referred to as the defendants) and as such the plaintiff has become owner in possession of the suit land by way of adverse possession. It was averred that the defendants No.1 to 6 recorded as owners and defendants No.7 and 8 recorded as mortgagees of the suit land in the revenue record have no right, title and interest in the suit land and despite this fact the defendants had started interference in the possession of the plaintiff over the suit land. Hence, the suit was filed for declaration that plaintiff is owner in possession of the suit land by way of adverse possession with consequential relief of permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the suit land. The plaintiff in the alternative had prayed for grant of decree for possession. 3. The defendants No.1 to 6 resisted and contested the suit by filing written statement and raised preliminary objections with regard to maintainability, cause of action, valuation, estoppel and misjoinder of necessary parties. On merits, it was averred by the defendants that suit land was mortgaged by the father of defendants No.1 to 6 with Shri Sohanu father of defendants No. 7 and 8. It was also averred that defendants No. 1 to 6 and Shri Daya Ram deceased redeemed the suit land from Shri Sohanu in the year 1980 on payment of `40/-. The defendants No. 7 and 8 have no right, title or interest in the suit land. It was further averred that though entries were existing in the name of Shri Sohanu, the defendants No.1 to 6 are owners in possession of the suit land and were entitled to restoration of possession, if dispossessed, during the pendency of suit or failed to prove their possession. It was further averred that though entries were existing in the name of Shri Sohanu, the defendants No.1 to 6 are owners in possession of the suit land and were entitled to restoration of possession, if dispossessed, during the pendency of suit or failed to prove their possession. The defendant No.6 had died during the pendency of suit. Lastly, it was pleaded that the defendants were entitled to special costs. 4. In replication, the plaintiff controverted the allegations of the defendants and pleaded that after the death of Shri Sohanu the land had been mutated in favour of defendants No.7 and 8, who left the possession in the year 1974 after receiving the mortgage amount. It was pleaded that the plaintiff was put in possession by late Shri Daya Ram and Shri Lachman on 15.04.1975. 5. On the pleadings of the parties, the following issues were framed by the learned trial Court on 27.12.1993:- 1. Whether the suit in the present form is not maintainable? OPD. 2. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP. 3. Whether the plaintiff is estopped by his act, conduct, omission and commissions to file the suit? OPD. 4. Whether the suit is bad for mis-joinder of parties and if so, its effect? OPD. 5. Whether the suit land has been coming in adverse possession of the plaintiff and this adverse possession has matured into ownership? OPP. 6. Whether the suit land was mortgaged by Shri Daya Ram, predecessor-in-interest of defendants No. 1 to 5 to Sohanu, predecessor of defendants No.7 and 8 as alleged? OPD. 7. If issue No.6 is proved in affirmative whether the mortgage stands redeemed and possession restored to defendants No.1 to 6 as alleged? OPD. 8. Whether the suit is based upon false and frivolous grounds and the defendants are entitled to the compensatory cost and if so to what extent? OPD. 9. Relief. 6. The learned trial Court after recording and evaluating the evidence on record dismissed the suit filed by the plaintiff. On appeal being filed before the learned lower appellate Court, the plaintiff met with the same fate as before the learned trial Court. 7. OPD. 9. Relief. 6. The learned trial Court after recording and evaluating the evidence on record dismissed the suit filed by the plaintiff. On appeal being filed before the learned lower appellate Court, the plaintiff met with the same fate as before the learned trial Court. 7. The plaintiff has come up in appeal before this Court and vide order dated 31.12.2004 this Court was pleased to admit the appeal on the following substantial question of law:- “Whether non framing of issue, regarding the land having been mortgaged to one Sh. Karru, has vitiated the findings of the courts below?” 8. I have heard Shri Yoginder Paul, Advocate, for the appellant and Shri G.R. Palsra, Advocate, for respondents No.1 to 5 and 7 and gone through the records of the case. 9. Though the appeal herein was admitted on the aforesaid substantial question of law, however, I am afraid that this question cannot be gone into in view of the fact that the suit filed by the plaintiff itself was not maintainable. It is settled law that the plea of adverse possession can only be used as a shield and not as a sword. Meaning thereby, the plea of adverse possession can only be taken as a defence but not as a ground of attack. 10. This Court in Rattan Lal and others versus Sandesh Kumari and others RSA No.399 of 2008 has held that 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. 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.” 11. 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.” 11. Therefore, in view of the above clear exposition of law, the suit as filed by the plaintiff was not maintainable and, therefore, the other questions raised including the substantial question of law need not be answered. Accordingly, the judgments and decrees passed by the learned Courts below are affirmed though for different reasons as set out hereinabove and the appeal is dismissed, leaving the parties to bear their own costs.