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2014 DIGILAW 606 (HP)

Om Parkash v. Gian Chand

2014-05-21

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge (Oral) The appellants are the defendants. They have preferred the present appeal against the judgement and decree dated 3.5.2002 passed by District Judge, Bilaspur in Civil Appeal No. 28 of 1991. 2. The brief facts, as necessary for the disposal of the present appeal are that plaintiff filed a suit for permanent injunction against the defendants inter- alia alleging that he alongwith proforma defendants is owner in possession of the land measuring 2 bighas comprising in khasra No. 66 khewat No. 133, Khatouni No. 122 min, situated in village Kandrour, Pargna and Tehsil Sadar, District Bilaspur, H.P. (referred to as suit land). The plaintiff has averred that defendants who have no concern with the suit land have threatened to occupy the best portion of the land for the construction of their house and for the same purpose they had collected material at the spot. Thus, he prayed that a decree for permanent injunction against the real defendants be passed and they be restrained from interfering in the suit land by any means and in alternative a decree for possession be also passed, if the defendants make construction during the pendency of the suit 3.The defendants have contested the suit. They filed a collective written statement, wherein certain preliminary objections that the suit is not maintainable in the present form, plaintiff has no cause of action to file the present suit, suit is bad for non joinder of necessary parties, plaintiff is estopped from filing the present suit by his act and conduct, this court has got no jurisdiction to hear and decide the present suit and the suit has not been properly valued for the purposes of court fee and jurisdiction. 4.On merits, it has been contended that khasra No. 66/1 min measuring 7 biswansis is in the possession of contesting defendants since last more than 12 years and the answering defendants have perfected their title by way of adverse possession on this 7 biswansis of land, which is part of the suit land and they have never interfered on the remaining portion of the suit land. Thus, they pray that suit of the plaintiff which is false and frivolous be dismissed with costs and they (defendants) be awarded special costs under section 35-A CPC. Thus, they pray that suit of the plaintiff which is false and frivolous be dismissed with costs and they (defendants) be awarded special costs under section 35-A CPC. 5.In replication, the plaintiff has reiterated the averments made in the plaint and denied the objections put forth by the defendants in the written statement. 6.The learned trial court has framed the following issues on 9.5.1989:- 1.Whether the plaintiff and the proforma defendants are exclusive owners in possession of whole of the suit land? OPP. 2. Whether defendants No. 1 to 4 are in peaceful, notorious and open possession of 7 Biswanshies of land comprised in khasra No. 66/1 as alleged? OPD 1 to 4 3.If issue No. 2 is proved whether the defendants No. 1 to 4 have perfected their title to this seven Bishwanshies of suit land by way of adverse possession? OPD 1 to 4. 4. Whether the suit is not maintainable as the site plan of the house has not been filed: OPDs 1 to 4. 5.Whether the plaintiff has no cause of action? OPDs 1 to 4. 6. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPDs 1 to 4. 7.Whether the suit is bad for non-joinder of necessary parties? OPDs 1 to 4. 8.Whether the plaintiff is estopped from filing the suit by way of his own act, conduct as alleged? OPDs 1 to 4.9. Whether the defendants No. 1 to 4 are entitled to special costs as alleged? OPDs 1 to 4. 10. Relief. 7. The learned trial court after recording and evaluating the evidence was pleased to pass the following decree:- “In view of my findings on issues No. 1, 2, 3, 4, 5 and 8, the suit of the plaintiff partly decreed that plaintiff alongwith pro forma defendants are owners in possession of 1 bigha and 18 biswas land and defendants are restrained permanently from interfering in this land. The defendants have acquired ownership on 7 biswansis of land shown in tatima Ex. DW-5/A by way of adverse possession and remaining suit land i.e. 1 biswa and 13 biswansis shown in tatima Ex. PW(R)-3/A, which is in possession for the defendants after the consolidation. The plaintiff can only get possession of this land i.e. 1 biswa and 13 biswansis from the Consolidation Authorities, if permissible under the Consolidation Act. Tatima Ex. PW( R)-3/A and Ex. PW(R)-3/A, which is in possession for the defendants after the consolidation. The plaintiff can only get possession of this land i.e. 1 biswa and 13 biswansis from the Consolidation Authorities, if permissible under the Consolidation Act. Tatima Ex. PW( R)-3/A and Ex. DW-5/A shall form the part of decree. Parties are left to bear their own costs. Decree sheet be prepared accordingly. File after completion be consigned to Record Room.” 8.The plaintiff aggrieved by the part of findings of the learned trial court, preferred an appeal before the learned lower appellate court, who vide its judgement and decree dated 3.5.2002, has been pleased to allow the same. Aggrieved by this judgement and decree passed by the learned lower appellate court, the defendants have come up in appeal before this court. 9.On 20.3.2003, this court was pleased to admit the appeal on the following substantial questions of law:- Whether learned Lower Appellate Court below has erred in reckoning the commencement of adverse possession from the time of construction of the house over the suit land instead, from the time when the consolidation operations took place? 10.I have heard Mr. Pankaj Negi, Advocate vice counsel for the appellants and Mr. Janesh Gupta, Advocate, vice counsel for the respondents and gone through the record thoroughly. The question of adverse possession has to be determined firstly on the basis of pleadings and then the evidence led in support thereof. In the written statement filed by the defendants, the plea of adverse possession has been raised in the following manner:- “5.That the contesting Defendants are having their house and cow shed in khasra No. 67 and portion of their house and cow shed in khasra No. 66/1 measuring about 0-0-7 biswansis falls in the suit land. In khasra No. 66/1, the answering defendants are having their possession openly, continuously, hostile, in the knowledge of general public, Plaintiff and Pro forma Defendants for the last more than 12 years and they have become owners over Khasra No. 66/1 by way of adverse possession. Except Khasra No. 66/1 as mentioned above, the answering defendants have got no right, title or interest in the remaining suit land. Tatima showing this all is attached herewith.” This plea has again been raised in verbatim in paragraphs No. 1 to 4 of the written statement. Except Khasra No. 66/1 as mentioned above, the answering defendants have got no right, title or interest in the remaining suit land. Tatima showing this all is attached herewith.” This plea has again been raised in verbatim in paragraphs No. 1 to 4 of the written statement. 11.Therefore, the moot question is as to whether the pleadings set out by the defendants can meet the requirement of law or not. This question assumes importance, because admittedly, the defendants have not spelt out any specific date from which their possession became adverse. In Kamla and others vs. Baldev Singh and others 2008(1) Shim. LC 215, this court has held as under:- “ ..Moreover, in case defendant or his father were in possession of the suit land as owner and the possession was never taken by the plaintiffs in pursuance of the decree, they can be said to be in possession as owner, but they cannot be treated to be in adverse possession of the suit land in any manner. The learned trial Court has not given its findings that the defendant or his father continued to be owner of the suit land even after passing of the decree since the decree was never executed, but has given the findings in the alternative that the defendant has become owner by way of adverse possession. This plea was taken by the defendant in the alternative but he never pleaded as to from which date his permissive possession as owner became adverse to the true owners i.e. plaintiffs and what overt act was done by him to show his hostile title to the suit land. There were no allegations as to when the possession became adverse, in which year or month or in what manner and the simple general allegation made by the defendant in the alternative were accepted by the trial Court without looking into the question that the original possession of the defendant over the suit land or that of his father was permissive being an owner and it never became adverse as against the true owner and if it became adverse in what manner and from which date, month or year. The permissive possession as owner does not itself become adverse as against the true owner until and unless some overt act is done by the defendant to show his hostile title towards the true owner which pleadings were very much lacking in the written statement and as such, the defendant was never proved to be in adverse possession of the suit land as owner. Those findings were rightly reversed by the learned first Appellate Court and the learned first Appellate Court had rightly observed that there was complete lack of animus on the part of the defendant to hold the suit land adversely to the plaintiffs. It was also observed that it has also not been shown as to what time possession of the defendant became hostile to that of the plaintiffs which had ripened into ownership. To my mind, there was nothing for the trial Court to conclude that the defendant has become owner by way of adverse possession in the absence of specific pleadings or proof and, therefore, the learned first appellate Court had come to a right conclusion in reversing the findings under Issue No. 1 in regard to the plea of adverse possession. Once the defendant had failed to prove adverse possession over the suit land, the only conclusion that can be drawn is the plaintiffs were entitled to the relief of possession and it was rightly given by the first appellate Court.” 12. This court in Brij Mohan Sood vs. Parshotam Singh and others 2014(1) Him. L.R. 556, has held as follows:- “11. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the e 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. 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.This court further in Deepak Parkash vs. Sunil Kumar 2014(1) Him. L.R. 654 has emphasized on the requirement of law of pleading the exact date from which the possession became adverse, in the following terms: “14. It appears that the learned lower Appellate Court completely ignored the pleadings of the parties or else the judgment and decree passed by the learned trial Court on the basis of such pleadings would not have been disturbed much less reversed. It appears that the learned lower Appellate Court completely ignored the pleadings of the parties or else the judgment and decree passed by the learned trial Court on the basis of such pleadings would not have been disturbed much less reversed. A perusal of the written statement would show that pleadings with regard to adverse possession were not only deficient but in fact did not meet the requirement of law. The defendant even failed to specify the definite date on which his possession became adverse. 16. Faced with such situation, learned counsel for the respondent/defendant would contend that he had led sufficient evidence to prove his plea of adverse possession. I am afraid that I cannot agree with the submissions made by learned counsel for the respondent/defendant. 17. It is settled law that no amount of evidence beyond pleadings can be looked into. It is further well settled principle of law that the evidence adduced beyond the pleading would not be admissible nor can any evidence be permitted to be adduced which is at variance with the pleadings. The Court at the later stage of the trial as also the Appellate Court having regard to the rule of pleading would be entitled to reject the evidence where for there does not exist any pleading.” 14.Faced with the aforesaid situation, the learned counsel for the appellants would contend that sufficient evidence has been led by them in support of their plea of adverse possession. I am afraid that such submission cannot be accepted and a complete answer is already found in paragraphs- 14, 16 & 17 of the judgement delivered by this court in Deepak Parkash’s case (supra). 15.In view of the legal position, the substantial question of law as formulated above is answered. Accordingly the appeal is dismissed and judgement and decree passed by the learned lower appellate court are upheld, leaving the parties to bear their own costs.