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2014 DIGILAW 681 (HP)

Bishan Dass v. Maina Devi

2014-05-31

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, Judge. Appellant Bishan Dass, who was defendant in the trial Court, is in second appeal before this Court. 2. He has challenged the judgment and decree dated 03.05.2000 passed by learned District Judge, Kinnaur at Rampur Bushahr in Civil Appeal No. 16 of 1999, dismissing thereby the appeal and affirming the judgment and decree dated 26.06.1999 passed by learned Sub Judge 1st Class, Rampur Bushahr in Civil Suit No. 65-1 of 1997/93, whereby the suit for the relief of possession of the suit land was decreed and decree for permanent prohibitory injunction, however, declined, in view of the respondents (hereinafter referred to as the ‘plaintiffs’) were not found in possession of the suit land. 3. The subject matter of dispute in the present lis is a piece of land measuring 0-11-37 hectares entered in Khata Khatauni No. 120min/347, Khasra No. 583 situated in Mauza Jahu, Sub-Tehsil Nankhari, District Shimla. The plaintiffs claims themselves to be the owner in possession of the suit land , earlier part of Khasra No. 689, new Khasra Nos. 583 and 584, however, the defendant allegedly in collusion with the settlement staff got his name incorporated in the column of possession and thereafter started causing interference in the suit land. 4. The defendant, however, has disputed such claim of the plaintiffs being wrong and came forward with the version that one of the plaintiffs Shri Mohan Lal had sold the suit land to him for a consideration of Rs.10,000/-. A sum of Rs.5,000/- towards part payment of the sale consideration was made. However, when said Shri Mohan Lal failed to execute the sale deed, he took possession of the suit land forcibly in May, 1978. He, therefore, is stated to be in open, peaceful, continuous and un-interrupted possession of the suit land for a period of over 15 years and as such has become owner thereof by way of adverse possession. The suit is also sought to be dismissed being time barred. 5. On the pleadings of the parties, the trial Court has framed the following issues: 1. Whether the plaintiffs are owner in possession of the suit land as alleged? OPP. 2. Whether the plaintiffs are entitled for the relief of injunction, as prayed? OPP 3. If issue No. 1 is not proved in the affirmative whether the plaintiffs are entitled for the relief of alternative possession of the suit land? Whether the plaintiffs are owner in possession of the suit land as alleged? OPP. 2. Whether the plaintiffs are entitled for the relief of injunction, as prayed? OPP 3. If issue No. 1 is not proved in the affirmative whether the plaintiffs are entitled for the relief of alternative possession of the suit land? OPP. 4. Whether the suit is barred by limitation? OPD 5. Whether the defendant took forcible possession of the suit land in May, 1978 by sowing maize crop and is maintaining such adverse possession and thus became owner of the same? OPD 6. Relief. 6. Since plaintiffs were not found in possession of the suit land partly, therefore, not held entitled to the relief of permanent prohibitory injunction. While issue No. 1 was decided in favour of the plaintiffs partly, issue No. 2 was decided against them. As regards the findings on issue No. 3, the same has been answered in favour of the plaintiffs, as they have been held to be dispossessed by the defendant illegally and being owner, the decree for possession of the suit land was passed in their favour, whereas, the claim of the defendant that he has acquired title in the suit land on the basis of adverse possession was discarded. As regards the findings on issue No. 5, the Court below has concluded that the defendant has failed to prove that he has dispossessed the plaintiffs forcibly from the suit land in the year 1978 and he rather was found to have dispossessed them somewhere after the year 1985-86 when his name was reflected in the ‘misal Hakiyat bandobast zadid’ for the year 1986-87 Ext. D-X for the first time. Therefore, the suit having been filed in the year 1993 was found to be well within the period of limitation, while answering issue No. 4 against the defendant. 7. The defendant though assailed the judgment and decree passed by learned trial Court before the learned District Judge, however, unsuccessfully, as the appeal he preferred has been dismissed vide judgment and decree impugned in the present appeal, whereas, judgment and decree passed by learned trial Court affirmed. 8. 7. The defendant though assailed the judgment and decree passed by learned trial Court before the learned District Judge, however, unsuccessfully, as the appeal he preferred has been dismissed vide judgment and decree impugned in the present appeal, whereas, judgment and decree passed by learned trial Court affirmed. 8. The legality and validity of the impugned judgment and decree has been questioned on the grounds inter-alia that the Court below has erroneously placed reliance on the original written statement, which after amendment having been allowed by learned trial Court could have not been considered and rather the case, the defendant having set out in the amended written statement should have been taken into consideration. The statement Ext. P-A of defendant recorded by the Gram Panchayat is stated to be relied upon erroneously being not proved in accordance with law. Ext. P-A, therefore, been wholly inadmissible in evidence could have not been relied upon. The plea of adverse possession raised by the defendant in the written statement was duly proved on record, however, erroneously discarded. It has also been pointed out that there was no occasion to the learned trial Court to have observed that in the written statement filed by the defendant initially, he failed to raise the plea of oral sale and taking possession of the suit land forcibly and that the counsel representing the defendant having good standing at Bar have taken care and caution while drafting the written statement are uncalled for in view the trial Court has allowed the amendment in the written statement. Once the amendment was allowed, it was beyond the jurisdiction of the learned lower appellate Court to have gone into the question of amendment. The findings recorded by learned lower Appellate Court that defendant came in possession of the suit land somewhere in the year 1985-86 are also stated to be allegedly passed on misreading of the evidence available on record. It has also been submitted that the Court below has erroneously held the suit within the period of limitation, because the defendant allegedly had come in possession of the suit land in the year 1978. The suit having been filed in the year 1993, therefore, was hopelessly time barred. It has also been submitted that the Court below has erroneously held the suit within the period of limitation, because the defendant allegedly had come in possession of the suit land in the year 1978. The suit having been filed in the year 1993, therefore, was hopelessly time barred. It has, therefore, been submitted that the findings recorded by the Court below are not only erroneous but perverse also and as such, the impugned judgment and decree has been sought to be quashed and set aside. 9. The appeal has been admitted on the following substantial questions of law:. 1. Whether the learned First Appellate Court was right in taking into consideration the original written statement filed by the defendant-appellant inspite of the fact that the pleadings of the defendant-appellant stood amended as permitted by the learned trial Court? 2. Whether the document Ex. PA is inadmissible in evidence and could not have been relied upon? 10. Shri Bhupinder Gupta, learned Senior Advocate appearing on behalf of the appellant-defendant has drawn the attention of this Court to the judgment under challenge in this appeal and also evidence available on record and contended that it is not a case where the plaintiffs were dispossessed from the suit land during the pendency of the suit and rather they were already dispossessed, as such, the suit for the relief of possession was time barred. It has also been pointed out that the original written statement should have not been taken into consideration and as regards the statement Ext. P-A of defendant recorded by the Gram Panchayat being not legally admissible in evidence was not proved in accordance with law. 11. On the other hand, Shri G.D. Verma, learned Senior Advocate has pointed out that the defendant has raised mutually destructive pleas i.e. firstly the acquisition of the suit land by way of sale and secondly, he having acquired the title therein by way of adverse possession were not available to him. Also that had the suit land been sold to the defendant, why he has not filed the suit for specific performance of the contract in case the vendor failed to execute the sale deed. Where was the occasion to the defendant to have taken forcible possession of the suit land without issuing any notice to Mohan Lal, the so called vendor or calling upon him thereby to execute the sale deed. Where was the occasion to the defendant to have taken forcible possession of the suit land without issuing any notice to Mohan Lal, the so called vendor or calling upon him thereby to execute the sale deed. The plea of adverse possession is stated to be neither factually nor legally sustainable. It has, therefore, been urged that the suit has rightly been decreed. The appeal, the defendant preferred being devoid of any merits has rightly been dismissed by the learned lower Appellate Court. 12. The plea of adverse possession is not at all proved as none of the ingredients of the plea of adverse possession at all established on record. In this behalf, it is worthwhile to mention here that as per the settled legal position, a party coming to the Court with the plea of adverse possession is required to prove satisfactorily on record that his/her possession over the property in dispute is continuous, visible, open as of right, notorious as an owner and hostile to the true owner. It is held by the Hon’ble Apex Court in State of Rajasthan versus Harphool Singh (dead) through his LRs, (2000) 5 Supreme Court Cases 652 that concrete proof of open hostile and continuous possession is required in order to substantiate a claim of perfection of title by adverse possession. The relevant portion of this judgment is reproduced here as under: “When the property was a vacant land before the alleged construction was put up, to show open and hostile possession which could alone in law constitute possession adverse to the State in this case some concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession. Even if the plaintiff’s allegations and claims, as projected in the plaint, are accepted in toto, the period of so called adverse possession would fall short by five years of the required period. There is no scrap of paper or concrete material to prove any such possession of the plaintiff’s father nor was there any specific findings supported by any evidence in this regard.” 13. There is no scrap of paper or concrete material to prove any such possession of the plaintiff’s father nor was there any specific findings supported by any evidence in this regard.” 13. A co-ordinate Bench of this Court in Gajinder Singh and others versus Narotam Singh and others, 1996 (1) SLJ 420 has held that in order to prove the plea of adverse possession, the possession must be peaceful, open and continuous and also required to be adequate in continuity and in publicity. Additionally, such possession must be actual, visible, exclusive, hostile and continuous for over the statutory period. It has also been held in this judgment that in order to succeed in the plea so raised, the party is required to prove as to on what date, he/she came into possession and what was the period of such adverse possession. 14. His name, for the first time, came to be reflected under the column of possession in the ‘misal Hakiyat bandobast zadid’ for the year 1986-87. He seems to have taken undue advantage of such entries in the revenue record entered unlawfully somewhere after the year 1986-87. The suit having been instituted on 3.5.1993, therefore, the statutory period of 12 years enabling him to claim title in the suit land by way of adverse possession was not over on that day. The oral evidence, he produced is neither cogent nor reliable particularly, when in the jamabandi for the year 198384 Ext. P-B, it is the plaintiffs who have been shown to be owner in possession of the suit land. Had the defendant been entered in the suit land in the year 1978, his name would have been reflected in the jamabandi Ext. P-B. He even failed to produce any evidence in the form of ‘Khasra Girdawari’ to show that it is he, who was in cultivating possession of the suit land. Therefore, such evidence available on record lead to the only conclusion that the Court below has decreed the suit and dismissed the appeal preferred by the defendant rightly. 15. Whether the learned lower Appellate Court has taken into consideration the written statement originally filed to the suit and decided the appeal on the basis thereof, need reappraisal of the given facts and circumstances and also the evidence available on record. 15. Whether the learned lower Appellate Court has taken into consideration the written statement originally filed to the suit and decided the appeal on the basis thereof, need reappraisal of the given facts and circumstances and also the evidence available on record. I am afraid that any such ground is available to the defendant for the reason that learned lower Appellate Court has not based its findings on the averments in the written statement filed originally and rather made reference during the discussion of the evidence that plea of acquisition of the suit land by the defendant by way of oral sale and taking possession thereof forcibly, a fact well within his knowledge should have been raised in the original written statement. No doubt, learned lower Appellate Court has no occasion to have made observations that the counsel engaged by the defendant having good standing at Bar should have taken due care and caution while drafting the written statement. The observations so made are, therefore, without any jurisdiction. The same, however, not affects the merits of the case even the trial Court while decreeing the suit has appreciated the pleadings of the parties and also the evidence available on record in its right perspective for the reason that defendant himself admits that the suit land was in the ownership and possession of the plaintiffs. When he purchased the same from Mohan Lal, one of the plaintiffs by way of oral sale on payment of Rs.5,000/- towards part payment of the sale consideration, he failed to produce any cogent and reliable evidence. There is no legal and acceptable evidence to show that he dispossessed the plaintiffs from the suit land in the year 1978 forcibly, on the failure of the vendor said Shri Mohan Lal to execute the sale deed. He had no occasion to dispossess the plaintiffs forcibly from the suit land without issuing notice to the vendor Mohan Lal, showing his intention to occupy the suit land forcibly, in case he did not execute the sale deed. He never served said Shri Mohan Lal with any such notice. He even had not availed the remedy of filing the suit for specific performance of contract, had the suit land been sold to him by Shri Mohan Lal. Even now he is at liberty to institute such suit, in case in a position to make out a case in this behalf. He even had not availed the remedy of filing the suit for specific performance of contract, had the suit land been sold to him by Shri Mohan Lal. Even now he is at liberty to institute such suit, in case in a position to make out a case in this behalf. Even if the observations made by learned lower Appellate Court that the defendant should have raised the plea of he having acquired the suit land by way of oral sale and dispossessed the plaintiffs therefrom forcibly in the year 1978 are excluded from the record, there is ample evidence to show that the suit has rightly been decreed, whereas, the appeal he preferred dismissed in accordance with law. Therefore, the first substantial question of law is accordingly answered in favour of the plaintiffs. 16. Now, if coming to the question that learned lower Appellate Court has rightly taken into consideration Ext. P-A, the statement, the defendant made before the Gram Panchayat or not, it would be improper to conclude that no illegality or irregularity has been committed by placing reliance on this document, which as a matter of fact, has been tendered in evidence by learned counsel representing the plaintiffs in his statement recorded on 16.6.1996 by learned trial Court. PW-2 Dharam Dass, Secretary, Gram Panchayat, Jahu, Rampur Bushahr has proved the copy of statement Ext. P-A to be true and correct as per the original record. Therefore, it cannot be said that Ext. P-A, the statement of the defendant recorded by the Gram Panchayat is not proved in accordance with law. The Court below, therefore, has not committed any illegality or irregularity by placing reliance on the same. This document reveals that the defendant in Ext. P-A has stated that the suit land was mortgaged to him for a sum of Rs.3,500/-. The present, therefore, is a case of taking mutually destructive pleas i.e. (i) acquisition of the suit land by the defendant by way of oral sale, (ii) having acquired title therein by way of adverse possession and; (iii) that the suit land was mortgaged with him for Rs.3,500/-. Such pleas are not available to him and it leads to the only conclusion that he has laid false claim over the suit land. Such pleas are not available to him and it leads to the only conclusion that he has laid false claim over the suit land. I find the present a case where no question of law what to speak of the substantial questions of law, as formulated in the appeal, arises for determination. 17. In view of what has been stated hereinabove, the Court below has not committed any illegality or irregularity while dismissing the appeal nor the impugned judgment and decree can be said to be perverse or vitiated on account of any infirmity. The same rather deserves to be upheld. 18. In view of the above, this appeal fails and the same is accordingly dismissed. Parties are left to bear their own costs.