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2014 DIGILAW 941 (HP)

Barfu v. Dalip Singh

2014-07-21

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge The defendant is the appellant, who is aggrieved by the judgment and decree dated 15.6.2002 passed by learned Additional District Judge, Shimla, Camp at Rohru, H.P. in Civil Appeal No. 102-S/13 of 2001 whereby he affirmed the judgment and decree dated 30.7.2001 passed by learned Sub Judge, 1st Class, Court No.2, Rohru, District Shimla, H.P. in Civil Suit No. 40-1 of 2000. 2. The plaintiff/respondent filed a suit for permanent injunction with respect to land comprised in Khata Khatauni No. 251/469, Khasra No. 935 measuring 0-01-08 hectare situated in Chak Sunda-Bhonra, Tehsil Chirgaon, District Shimla, H.P. (hereinafter referred to as the suit land) with a prayer to restrain the defendant from interfering in the suit land in any manner. The plaintiff claims himself to be owner and in possession of the suit land and the defendant who is having no right, title or interest in the suit land is unnecessarily interfering and is threatening to dispossess the plaintiff from the same. Hence, he filed the suit for injunction. 3. The suit filed by the plaintiff was contested by the defendant by filing written statement in which preliminary objections of maintainability, concealment of material facts and valuation were taken. On merits, it was alleged that the plaintiff is neither the owner nor in possession of the same and previously it was owned and possessed by his ancestors. It was alleged that the defendant has planted apple, apricot plants being the age of more than 16 years on the suit land. The leaves of rubinia plants planted by the defendant are being used by him as fodder for his animals for the past many years. A cow shed has also been constructed by the defendant over a part of the suit land since long. Adjacent to this land, the defendant is having his other land. The revenue record showing Supjiew as owner in possession of the suit land and also the plaintiff as purchaser is wrong. The plaintiff also filed an application for recording his possession over the suit land before the Tehsildar, Chirgaon. There is no question of interference as the defendant is already in possession of the suit land. In alternative, the defendant claims to have become owner of the suit land by way of adverse possession. 4. The plaintiff also filed an application for recording his possession over the suit land before the Tehsildar, Chirgaon. There is no question of interference as the defendant is already in possession of the suit land. In alternative, the defendant claims to have become owner of the suit land by way of adverse possession. 4. By way of replication, the plaintiff reaffirmed the averments made in the plaint and denied those made by the defendant in the written statement. On 20.11.2000 the learned trial Court framed the following issues: 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP 2. Whether the defendant has become owner of the suit land by way of adverse possession as alleged? OPD 3. Relief. 5. After recording the evidence, the learned trial Court decreed the suit of the plaintiff by passing a decree for injunction restraining the defendant from interfering in any manner whatsoever over the suit land. 6. Aggrieved by the judgment and decree dated 30.7.2001 passed by the learned trial Court, the appellant/defendant preferred an appeal before the learned lower Appellate Court, who vide its judgment and decree dated 15.6.2002 dismissed the appeal of the appellant/defendant. Hence, it is the appellant/defendant, who has come up before this Court by way of second appeal. 7. On 27.11.2002, the appeal was admitted on the following substantial questions of law: 1. Whether a mere suit for permanent prohibitory injunction is maintainable if the plaintiff is out of possession? 2. Whether in a case where there is a genuine boundary dispute between the parties and whether without obtaining any demarcation report or establishing the identity of the suit land a person is entitled to a decree for permanent prohibitory injunction merely on the basis of entries in the revenue records which were challenged and disputed by the appellant? 3. Whether in the present case the Courts below have discarded and ignored the relevant and admissible evidence of the appellant and have further grossly misread and misconstrued the law and evidence resulting into palpably illegal and erroneous judgment and decree and if so to what effect? 8. I have heard learned counsel for the parties and have also gone through the records carefully. 9. Since all the substantial questions of law can be said to be inter-connected, I proceed to dispose of the same through common reasoning. 10. 8. I have heard learned counsel for the parties and have also gone through the records carefully. 9. Since all the substantial questions of law can be said to be inter-connected, I proceed to dispose of the same through common reasoning. 10. It is not disputed that the plaintiff/respondent had filed a suit for permanent injunction on the basis of title which title is established from the perusal of jamabandi for the year 1998-99 Ex.PA wherein the plaintiff is recorded as owner of Khasra No. 935 measuring 0-01-08 bighas. It is also not in dispute that the suit land was previously owned by Supjiew and the same was sold to the plaintiff which is evidenced by mutation No. 935 dated 3.2.1993 Ex.RW-1/A. 11. The delivery of possession is to be presumed when the mutation is sanctioned in terms of the provisions of H.P.Land Record Manual read with para-19, Chapter-VII of the H.P. Land Revenue Act which clearly stipulates and provides that attestation of mutation can be postponed till the possession of the property is delivered. Thus, the delivery of possession is pre-condition and mandate for attestation of mutation. Therefore, it can be safely concluded that the plaintiff was delivered the possession of the suit land when the same was sold to him by the original owner. 12. Even if the evidence is evaluated, the plaintiff while appearing as PW-1 has clearly deposed that he is owner in possession of the suit land and has planted apple trees over the same. He further deposed that the defendant was trying to interfere with his possession. Though the plaintiff has been cross-examined at length but nothing useful has been elucidated or extracted so as to impeach his testimony. Apart therefrom, the defendant Barfu, who examined himself as DW-1, has admitted in the cross-examination that he was not aware of the purchase of the suit land by the plaintiff. He has not denied that previously the suit land was owned by Supjiew and the plaintiff had purchased the same from him. 13. The learned Courts below on the basis of the evidence came definite conclusion that the defendant could not prove his possession which finding is a pure finding of fact and cannot be interfered with by this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure. 13. The learned Courts below on the basis of the evidence came definite conclusion that the defendant could not prove his possession which finding is a pure finding of fact and cannot be interfered with by this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure. Therefore, once the plaintiff is found in possession, the suit filed by him for permanent prohibitory injunction was definitely maintainable, 14. Mr. Ajay Kumar, learned senior counsel for the appellant has strenuously contended that this was a genuine boundary dispute between the parties and, therefore, demarcation ought to have been got conducted and the suit could not have been decreed solely on the basis of the entries in the revenue record which had been challenged and disputed by the appellant. 15. I am afraid that though this argument appears attractive but the same is not supported by either the pleadings or the evidence available on the record. It has been proved on record that the plaintiff was in possession of the suit land rather there is no material brought on the record so as to prove that there was a boundary dispute much less a genuine boundary dispute as claimed by the appellant. Moreover, this point was not even raised before the learned lower Appellate Court and, therefore, the appellant cannot claim adjudication of such claim before this Court. 16. In so far as the plea of the appellant with respect to the relevant and admissible evidence having been ignored by the learned Courts below is concerned, I find no force in the said submission because not only the learned trial Court but even the learned lower Appellate Court has painstakingly discussed the entire evidence threadbare which finding under no circumstance can be termed to be perverse. It also cannot be held that the learned Courts below have in any manner ignored the relevant and admissible evidence or have misread or misconstrued the law. 17. It is settled law that after 1976 amendment carried out in the Code of Civil Procedure, the scope of Section 100 has been drastically curtailed and narrowed down. This Court would have jurisdiction to interfere under Section 100 CPC only in a case where substantial questions of law are involved. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. This Court would have jurisdiction to interfere under Section 100 CPC only in a case where substantial questions of law are involved. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. 18. The rational behind allowing a second appeal on a question of law is, that there ought to be some tribunal having jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on questions of law. (See: Koppisetty Venkat Ratnam (D) through L.Rs v. Pamarti Venkayamma, (2009) 2 SCC 244 ). 19. Further, there cannot be any doubt whatsoever that a substantial question of law is different from a question of law and in the present case it can be safely concluded that the findings rendered by the learned Courts below are pure findings of fact which can not be said to be perverse or based on misreading or misconstruction of any important document or the law on the subject. All the substantial questions of law are answered accordingly. 20. In view of above discussion, the appeal is without merit and is accordingly dismissed, leaving the parties to bear their own costs.