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2014 DIGILAW 789 (HP)

Bhagat Ram v. Usha Verma

2014-06-25

RAJIV SHARMA

body2014
JUDGMENT Rajiv Sharma, Judge. Since common questions of law and facts are involved in both the appeals, the same were taken up together and are being disposed of by a common judgment. 2. RSA No. 283/2010 is directed against the judgment and decree dated 26.3.2010 rendered by the District Judge, Shimla in Civil Appeal 50-S/13 of 2008/04. RSA No. 284/2010 is directed against the judgment and decree dated 26.3.2010 rendered by the District Judge, Shimla in Civil Appeal No. 10-S/13 of 2010/2004. However, in order to maintain clarity, facts of both the Regular Second Appeals have been dealt with separately. 3. Firstly, the Court would advert to the facts of RSA No. 283/2010. RSA No.283/2010 4. Respondents-plaintiffs (hereinafter referred to as the “plaintiffs” for convenience sake) filed a Civil Suit No. 35/1 of 2000 against the appellant-defendant (hereinafter referred to as the “defendant” for convenience sake) for decree of permanent prohibitory injunction restraining the defendant permanently from interfering in their possession over the suit land comprised in Khata No.41, Khatauni No.73, Khasra Nos. 725, 726, 728, 729, 731, 732, 733, 734, 735, 737 and 738 area measuring 38 bighas 8 biswas situated in village Kanda, Pargana Kaljoon, Tehsil Shimla (Rural), District Shimla. According to them, Nand Lal Verma, father of the plaintiffs was owner of the suit land. He gifted the suit land in favour of the plaintiffs and one Prathibha. Plaintiffs are owners in possession of the suit land. Defendant has no right, title or interest in it. Defendant in order to grab the suit land, filed an application before the Tehsildar, Shimla for direction to Halqua Namberdar that the land revenue of the suit land be taken from him. He also filed another application for correction of revenue entries to the effect that defendant is in actual possession of the suit land. Defendant procured an illegal and void order dated 12.8.1999 behind the back of the plaintiffs. He on the strength of the order started doing casual acts of trespass. It is in these circumstances, plaintiffs filed the civil suit. 5. The suit was contested by the defendant by filing written statement. According to the defendant, he is in actual, continuous and hostile possession of the suit land to the knowledge of the plaintiffs. He has become owner of the suit land by way of adverse possession. Revenue entries showing the plaintiffs in actual possession are wrong. 5. The suit was contested by the defendant by filing written statement. According to the defendant, he is in actual, continuous and hostile possession of the suit land to the knowledge of the plaintiffs. He has become owner of the suit land by way of adverse possession. Revenue entries showing the plaintiffs in actual possession are wrong. He has supported the order dated 12.8.1999. 6. The replication was filed by the plaintiffs. Issues were framed by the trial court on 22.6.2000. He decreed the suit on 3.3.2004. Defendant filed an appeal against the judgment and decree dated 3.3.2004 bearing Civil Appeal No.10-S/13 of 2008/04. Learned District Judge dismissed the appeal on 26.3.2010. Hence, this Regular Second Appeal against the judgment and decree dated 26.3.2010. RSA No. 284/2010 7. Respondents-plaintiffs (hereinafter referred to as the “plaintiffs” for convenience sake) filed a Civil Suit No. 40/1 of 2003/2000 in the Court of Civil Judge (Junior Division), Court No.1 against the appellant-defendant (hereinafter referred to as the “defendant” for convenience sake) for the grant of permanent prohibitory injunction restraining him from interfering in their possession over the suit land comprised in Khata No.67, Khatauni No.102, Khasra No.730 measuring 12 biswas situated in village Kanda (Mandhor), Tehsil and District Shimla. According to them, Nand Lal Verma was father of the plaintiffs. He purchased land comprising in Khata No.41, Khatauni No.73 area measuring 38 bighas alongwith rights of Abadi (now represented by Khasra No.730) vide sale deed dated 5.3.1963 in village Mandhori, Tehsil and District Shimla. The Abadi comprising Khasra No.730 is surrounded by Khasra Nos. 729, 726 and 731 of the plaintiffs. After the death of Nand Lal Verma, plaintiffs have inherited the suit land and they are in possession of the same. Defendant has no right, titled or interest in the suit land. Cause of action arose to the plaintiffs in the month of February, 2000 when the defendant colluded with Halqua Patwari and obtained forged and fictitious documents showing the defendant in possession of the suit land and got the water and electricity connections installed in the building shed. It is in these circumstances, the suit was filed by the plaintiffs for restraining him from interfering over khasra No. 730. 8. The suit was contested by the defendant. Defendant has denied that plaintiffs are in actual possession of the Abadi deh comprising Khasra No.730. It is in these circumstances, the suit was filed by the plaintiffs for restraining him from interfering over khasra No. 730. 8. The suit was contested by the defendant. Defendant has denied that plaintiffs are in actual possession of the Abadi deh comprising Khasra No.730. According to him, he was in settled possession of the suit land since the time of his ancestors. 9. The trial court framed issues on 19.5.2000. The trial court decreed the suit on 26.5.2004. Defendant preferred an appeal before the District Judge, Shimla against the judgment and decree dated 26.5.2004 bearing Civil Appeal No. 10-S/13 of 2010/2004. Learned District Judge dismissed the appeal on 26.3.2010. Hence, the present Regular Second Appeal. 10. It is pertinent to take note at this stage that both the Civil Appeal Nos.10-S/13 of 2010/2004 and Civil Appeal No.50-S/13 of 2008/04 were taken up together and were decided by the learned District Judge by a common judgment dated 26.3.2010. Defendant has filed Regular Second Appeals against the Civil Appeal Nos.10-S/13 of 2010/2004 and Civil Appeal No.50-S/13 of 2008/04 dated 26.3.2010. 11. Mr. Ajay Kumar, learned Senior Advocate, on the basis of substantial questions of law framed, has vehemently argued that both the courts below have misread and misconstrued the documents. He has also argued that an application under order 41 rule 27 of the Code of Civil Procedure has been wrongly determined and decided by the learned first appellate court. He lastly contended that the suit was not maintainable in the present form. 12. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence. 13. PW-1 Usha Verma has deposed that plaintiffs are owners in possession of the suit land. Defendant alongwith his sons and other 20-25 boys started making interference in their possession over the suit land by using iron rods, Dandas etc. She has specifically disputed that the suit land was given for cultivation by the original owner, Premi in favour of Ganu, father of defendant in the year 1960. She has denied that Ganu or defendant ever remained in possession of the suit land 14. PW-2 Devi Saran has corroborated the version of PW-1 Usha Verma. According to him, suit land was in possession of Nand Lal, predecessor-in-interest of the plaintiffs and thereafter the suit land is in possession of the plaintiffs. She has denied that Ganu or defendant ever remained in possession of the suit land 14. PW-2 Devi Saran has corroborated the version of PW-1 Usha Verma. According to him, suit land was in possession of Nand Lal, predecessor-in-interest of the plaintiffs and thereafter the suit land is in possession of the plaintiffs. Defendant has never remained in possession of the suit land. 15. PW-3 is Janki Ram. He has deposed that the suit land is in possession of the plaintiff and the same was sold to them by Kishan. He used to collect the land revenue from the plaintiffs. He has proved revenue receipt Ex.P-17. He has refuted that defendant has planted an orchard over the suit land, however, maintained that orchard has been planted by the plaintiffs. PW-4 Narain Dass has deposed that defendant never remained in possession of the suit land. He was working as Halwai at Boileauganj. He was running a Dhaba at Boileauganj. He has refuted that defendant has raised an orchard. 16. PW-5 Krishan Chand has also deposed that the plaintiffs are in possession of the suit land since 1963-64 and they have planted trees in the same. 17. PW-6 Bija Ram is the son of Chaudhary Ram. According to him, Chaudhary Ram was recorded in possession as non-occupancy tenant as per the entries incorporated in the Jamabandi for the year 1961-62. According to him, the suit land was sold by Premi, original owner, in favour of the father of the plaintiffs, Nand Lal. Plaintiffs have planted an orchard on the same. 18. Defendant has appeared as DW-3. According to him, the suit land was of his father. It was given to him by Krishnu alias Premi, original owner. Krishnu alias Premi was owner to the extent of 7/8 shares in the suit land. After 2 ½ years of 1960, his father became ill and returned back to Bilaspur. Thereafter in the year 1964, they came to know that the original owner has sold the land in favour of Nand Lal Verma. His father asked Nand Lal, predecessor-in-interest of the plaintiffs to return the land to him on the ground that he was cultivating the same. However, Nand Lal did not hand over the possession of the suit land. His father died in the year 1969. Thereafter, he started cultivating the suit land. He was in possession of the suit land. His father asked Nand Lal, predecessor-in-interest of the plaintiffs to return the land to him on the ground that he was cultivating the same. However, Nand Lal did not hand over the possession of the suit land. His father died in the year 1969. Thereafter, he started cultivating the suit land. He was in possession of the suit land. The application for making entries in the name of defendant as non-occupancy tenant was filed on 2.3.1995. In his cross-examination he has deposed that he was in illegal possession of the suit land. He has deposed that he is resident of Tehsil Ghumarwin, District Bilaspur. His Halwai shop is situated at Boileauganj and he has got land. He is owner of hotel Mejban. 19. DW-6 Kaushalya Devi has stated that defendant is in possession of the suit land for the last 35 years. She feigned ignorance whether the defendant has purchased the suit land. She also feigned ignorance of possession of the plaintiffs over the suit land. She did not know whether the orchard was planted by the plaintiffs and they are owners in possession of the suit land. 20. DW-7 Hem Singh has deposed that he has visited the land of the defendant during the settlement operation alongwith Pampu. According to him, the defendant is in possession of the suit land, for the last 30-32 years. He has deposed that Ganu Ram, father of the defendant died in the year 1979-80. He did not know by whom the suit land was possessed 20-25 years back. 21. DW-8 Pampu Ram has deposed that the suit land is in possession of the defendant for the last 20-22 years. He did not know who was the owner in possession of the suit land 20-25 years back. 22. Neither DW-3 defendant nor DW-6 Kaushalya Devi has deposed that possession of the defendant was hostile, notorious, continuous, uninterrupted and the same was in the notice or knowledge of the owners. In order to prove the plea of adverse possession, all the ingredients are required to be proved. The defendant has miserably failed to prove that he has become owner by way of adverse possession. The suit land was owned and possessed by Shri Premi to the extent of 7/8 share and Nagar Panchayat, Deh was owner in possession of 1/8th share out of the suit land. The defendant has miserably failed to prove that he has become owner by way of adverse possession. The suit land was owned and possessed by Shri Premi to the extent of 7/8 share and Nagar Panchayat, Deh was owner in possession of 1/8th share out of the suit land. Nand Lal Verma, father of the plaintiffs, on the basis of the sale deed Ext. PW-1/J dated 4.3.1963 purchased 7/8th share out of the suit land. He became owner of the suit land to the extent of 7/8th share. Nagar Panchayat, Deh remained owner of 1/8th share of the suit land. Nand Lal Verma, predecessor in interest of the plaintiffs, on the basis of sale deed Ext. PW-1/K dated 18.11.1970 executed by the Deputy Commissioner-cum-Collector in favour of Nand Lal Verma became owner of 1/8th share out of the suit land also. 23. It is evident from the revenue entries incorporated in the Jamabandis for the years 1965-66 to 1994-95, Ext. PW-1/A to PW-1/G that from the years 1965-66 to 1994-95 either Nand Lal Verma, predecessor in interest of the plaintiffs or the plaintiffs have been shown in actual possession of the suit land. It is also evident from Khasra Girdawari Ext. PW-1/L w.e.f. 20.7.1986 to 11.10.1990, Khasra Girdawari Ext. PW-1/M with effect from 8.4.1990 to 20.2.1994, Khasra Girdawari Ex. PW-1/N with effect from 18.3.1995 to 22.4.2000 that the plaintiffs have been shown as owners in possession of the suit land. Defendant by moving an application Ext. PA dated 2.3.1995 has admitted the plaintiffs as landlord and claimed himself to be non-occupancy tenant. Thus, the defendant has categorically admitted the plaintiffs to be owners of the suit land. An application preferred on 2.3.1995, was decided on 12.8.1999. He was recorded in possession without any basis over the suit land in the Jamabandi for the year 1999-2000. The plaintiffs have challenged order dated 12.8.1999 in case No. 1/95 before the Sub Divisional Collector, Shimla. The Sub Divisional Collector Shimla vide order dated 8.5.2000 has set aside the order dated 12.8.1999 and remanded the application for fresh disposal. Thereafter, the plaintiffs filed civil suit No. 35-1 of 2000 on 27.3.2000. The defendant has moved an application under Order 6 Rule 17 of the Code of Civil Procedure for the amendment of application Ext. PA dated 2.3.1995 in order to wriggle out of the admission that he be recorded as non-occupancy tenant. Thereafter, the plaintiffs filed civil suit No. 35-1 of 2000 on 27.3.2000. The defendant has moved an application under Order 6 Rule 17 of the Code of Civil Procedure for the amendment of application Ext. PA dated 2.3.1995 in order to wriggle out of the admission that he be recorded as non-occupancy tenant. He sought correction that he may be recoded in simplciter possession of the suit land. The application was allowed by the Assistant Collector on 22.9.2000. 24. Learned District Judge, has rightly come to the conclusion that by seeking amendment in the application Ext. PA defendant wanted to create evidence in his favour. Defendant has also tried to rely upon letter dated 9.7.1999 issued in his favour by the Patwari to the effect that there was an old house of the defendant in the land comprised in Khasra No. 730. However, it is evident from Ext. PW-1/Q issued by Deputy Commissioner on the basis of an enquiry conducted by Sub Divisional Collector, Shimla that certificate dated 9.7.1999 Ext. PX issued by the Patwari Halka Kanda and countersigned by the Naib Tehsildar on 17.7.1999 was found to be false. 25. Defendant has also relied upon order dated 6.9.1997, whereby Tehsildar directed the concerned Nambardar to collect revenue from the defendant and deposit the same in the Government treasury. In fact, the revenue has been deposited for the suit land vide receipts Ext. P-1 to P-20 from Kharif 1964 to Kharif 2000 by the plaintiffs. 26. Now, as far as document Ex.DZ, DZ-2, DZ-3 and DZ-4 are concerned, these have been manipulated by the defendant during the pendency of the civil suit. Defendant, on the basis of these documents, could not prove that he has become owner in possession by way of adverse possession or he had been in settled possession of the suit land. Ex.DZ was written by one of the plaintiffs, Usha Verma to the then Settlement Officer complaining therein that the defendant alongwith his son Ved Parkash used to run a Dhaba at Boileauganj and belonged to Bilaspur trespassed and interfered in their peaceful possession over the suit land. No final order was passed on Ex.DZ-1 dated 1.9.2003 since the defendant has taken specific plea of adverse possession. 27. No final order was passed on Ex.DZ-1 dated 1.9.2003 since the defendant has taken specific plea of adverse possession. 27. Now, as far as Ex.DZ-3 is concerned, one of the plaintiffs, has only requested the revenue officer not to make false entries in the revenue record in respect of the suit land. The Settlement officer, vide Ex.DZ-4 has only directed the Naib Tehsildar, Settlement, Ganahatti Circle not to record the possession of any body over the suit land. 28. Plaintiffs have conclusively proved that they are owners in possession of the suit land and the defendant has started interfering in their peaceful possession. Defendant has failed to prove that he has become owner of the suit land by way of adverse possession or he was in settled possession. 29. Now, so far as the Civil Suit No.40-1 of 2003/2000 filed by the plaintiffs is concerned, it pertained only to Khasra No.730. The suit property of Civil Suit No.40-1 of 2003/2000 lies between the suit land, which is subject matter of Civil Suit No.35-1 of 2000. Defendant in this case has also claimed himself to be owner of the suit property. According to defendant, house was constructed by his father in the year 1960. He has relied upon certificate Ex.PX issued by the Patwari. The certificate Ex.PX was found to be false as per order of the Deputy Commissioner Ex.PW-1/Q. 30. Now, as far as Ex.PZ is concerned, one of the plaintiffs, has only requested the Assistant Engineer, H.P.S.E.B., Jutogh Sub Division not to provide electricity connection to the defendant. The Deputy Commissioner, Shimla has directed the Superintending Engineer, H.P.S.E.B vide Ex. PY dated 27.3.2000 that he should ensure that all the legal formalities were completed before granting the electricity connection. Ex.PZ-1 is the only legal notice issued to the Secretary, H.P.S.E.B. on behalf of the plaintiffs for removal of electricity connection given in favour of the defendant. Defendant has tried to get water connection in the shed situated in Khasra No. 730. Statement of DW-2 Des Raj does not help the defendant. In Civil Suit No.35/1 of 2000 defendant has examined Sh. Gurdev Singh, Junior Engineer in order to prove that the installation of electricity meter in the suit property. He has testified that the meter was installed in the suit property in the name of defendant. Statement of DW-2 Des Raj does not help the defendant. In Civil Suit No.35/1 of 2000 defendant has examined Sh. Gurdev Singh, Junior Engineer in order to prove that the installation of electricity meter in the suit property. He has testified that the meter was installed in the suit property in the name of defendant. He has clarified that the electricity meter was installed in Khasra No.730 and thereafter a letter Ex.PY was issued by the Deputy Commissioner. According to Ex.PY, Ex.PX on the basis of which electricity connection was issued, was found to be false. It was restored by the order of Additional Secretary (Law) to the Government of H.P. vide Ex.PZ-2. DW-2 Desh Raj has also admitted that water connection was issued on the report of Patwari Halqua dated 9.7.1999. It was found to be false. The water connection was disconnected on 18.3.2000. One of the plaintiffs, Usha Verma has deposed that they have constructed a hut over the suit land. She has denied that defendant was residing in the suit property/Abadi Deh. PW-2 Devi Saran and PW-3 Janki Ram have deposed that the plaintiffs were in possession of the old house. The plaint has been valued correctly for the purpose of court fee. The suit filed by the plaintiffs was within limitation since the cause of action has arisen to them in the month of February, 2000. Since, the plaintiffs were in possession of the suit property, suits for permanent prohibitory injunction were maintainable. 31. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments passed by both the courts below. 32. Accordingly, in view of the analysis and discussion made hereinabove, no question of law much less to say substantial of law is involved in both the Regular Second Appeals and the same are dismissed. Pending application, if any, also stands disposed of. No costs.