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2015 DIGILAW 1263 (HP)

Mamta Devi v. Mohan Singh

2015-09-08

SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. This regular second appeal stands filed under the provisions of Section 100 of the Code of Civil Procedure. Concurrent findings of fact stand challenged by the plaintiff's successor in interest. 2. Parties have been litigating since the year 2001 over six biswas of land. Original plaintiff Rama Nand claims that in his absence and without his permission, defendant Mohan Singh encroached upon his land and constructed twenty two feet long stone wall. Consequently plaintiff claims decree for injunction, directing the defendant to remove the wall and hand over possession of the land to him. 3. On the other hand, defendant claims to have brought the suit land from the erstwhile owner Puran Chand on 29.4.1989 and immediately thereafter constructed a boundary wall. In the alternative, plea of adverse possession also stands taken. 4. Based on the respective pleadings of the parties, trial Court framed the following issues:- "1. Whether the plaintiffs are owner in possession of the suit land? OPP 2. Whether the plaintiffs are entitled for decree of possession of the portion encroached by the defendant? OPP 3. Whether the plaintiffs are entitled for the decree of mandatory injunction as prayed for? OPP 4. Whether this suit is not maintainable? OPD 5. Whether plaintiffs are estopped by their act and conduct from filing this suit? OPD 6. Whether this suit is not within limitation? OPD 7. Whether the defendant has become owner of the suit land by virtue of adverse possession? OPD 8. Whether the sale deed vide which Puran Chand has sold the land to plaintiff is null and void? OPD 9. Relief." 5. Trial Court found that revenue record and order dated 10.6.1998 passed by the Assistant Collector 1st Grade, conclusively did not establish the original plaintiff to be owner of the land in question. Also defendant's plea of having perfected title by way of adverse possession was legally untenable. Consequently, trial Court dismissed the suit in terms of judgment and decree dated 26.6.2003, passed in Civil Suit No. 52-1 of 2001, titled as Sh. Rama Nand (since deceased, through LRs) v. Sh. Mohan Singh. 6. The lower appellate Court vide judgment and decree dated 21.11.2003, passed in Civil Appeal No. 28 of 2003, titled as Smt. Mamta Devi & others v. Sh. Rama Nand (since deceased, through LRs) v. Sh. Mohan Singh. 6. The lower appellate Court vide judgment and decree dated 21.11.2003, passed in Civil Appeal No. 28 of 2003, titled as Smt. Mamta Devi & others v. Sh. Mohan Singh, dismissed the appeal filed by the plaintiff's successors-in-interest, holding the land to be jointly owned by the parties and as such in the absence of any proceedings of partition of land, having taken place amongst the co-sharers, relief as prayed for cannot be granted. Hence the present appeal. 7. Having heard learned counsel for the parties as also perused the record, one is of the considered view that no ground for interference is made out in the present appeal. 8. During the pendency of present appeal, appellants, successors in interest of the plaintiff, filed an application under Order 41 Rule 27 CPC (being CMP No. 899 of 2004) seeking leave to place on record and prove, sale deed dated 19.1.2001 executed by Puran Chand in favour of Rama Nand. By leading additional evidence they want to prove the same. Noticeably plaintiff had filed a similar application before the lower appellate Court, which stood dismissed vide separate order dated 21.11.2003. It is not the appellants' case that factum of execution of sale deed was not in their knowledge or that the document was not available or for that matter they were not afforded adequate opportunity of hearing for leading additional evidence to either place or prove such document by the trial Court. As such at such a belated stage, appellants cannot be permitted to fill in the lacuna. There is nothing on record to establish that despite exercise of due diligence either by the plaintiff or the appellants could not produce the document earlier. It is not the case of the plaintiff that the court refused to admit evidence or despite exercise of due diligence such evidence was not available or that the evidence is necessary for any substantial cause and/or enable the court to pronounce judgment. Hence the application is dismissed. 9. It is not the case of the plaintiff that the court refused to admit evidence or despite exercise of due diligence such evidence was not available or that the evidence is necessary for any substantial cause and/or enable the court to pronounce judgment. Hence the application is dismissed. 9. One another application (being CMP No. 900 of 2004) stands filed by the appellants under the provisions of Order VI Rule 17 CPC seeking amendment of the plaint to the effect that they having stepped into the shoes of their predecessor in interest are entitled to recover possession of the suit land, irrespective of the fact that the defendant's act of trespass was prior to execution of registration of sale deed. The application only merits rejection as the amendment would only change the nature of the suit and the controversy involved inter se the parties. It is not the pleaded case of the appellants that in spite of due diligence no such plea could be raised before the commencement of trial. Lacuna cannot be allowed to be filled up at such a belated stage. As such, the application is dismissed. 10. The appeal stands admitted on the following substantial questions of law:- "1. Whether the principle of law, that the possession of one co-sharer is possession of all, was applicable in the present case and the relief claimed by the appellants/plaintiffs could be refused on the basis of the said principal? 2. Whether the learned Appellate Court below was competent to give relief to the respondent/defendant on the plea not raised in the pleading by defendant?" 11. It is not in dispute that the land in question was owned by Puran Chand and Sukh Dass. Puran Chand exchanged his share in suit land with Anarkali who in turn sold her share to Rama Nand (plaintiff) on 19.1.2001. Sukh Dass also sold his share (220 Sq. Mts) to defendant Mohan Singh. The extent of total land owned by Anarkali as depicted in the order dated 3.8.1998 (Ext. PW-1/L) passed by the Settlement Collector and revenue record i.e. jamabandies (Ext. PW-1/C and 1/D) is 465 Sq. Mts. Apparently khasra No. 543/2/2/1 has been renumbered as khasra Nos. 1043/1, 1043/2, 1044/1 and 1044/2. 12. It is a settled principle of law that mere entries in revenue record would not confer any title. PW-1/L) passed by the Settlement Collector and revenue record i.e. jamabandies (Ext. PW-1/C and 1/D) is 465 Sq. Mts. Apparently khasra No. 543/2/2/1 has been renumbered as khasra Nos. 1043/1, 1043/2, 1044/1 and 1044/2. 12. It is a settled principle of law that mere entries in revenue record would not confer any title. In the instant case plaintiff did not produce the sale deed establishing the extent of his ownership in the land owned and possessed by Anarkali. Also as to whether the suit land was sold by Anarkali to him cannot be said to have been established in the absence of sale deed proved on record. In this view of the matter, findings returned by the lower appellate Court, holding the parties to be co-owners over original khasra No. 543, cannot be held to be illegal or erroneous. 13. There is nothing on record to establish that the suit land stood partitioned between Puran Chand and Sukh Dass. Original owners may have sold particular parcel of land and may have put the vendee in possession thereof, but however this fact alone would not establish absolute ownership of the vendee. What was sold was undivided share in the land which was never partitioned. 14. The fact that plaintiff stood dispossessed by the defendant or that the defendant encroached upon the suit land also cannot be said to have been established on record. Courts below, concurrently have repelled such plea which finding of fact cannot be said to be perverse or erroneous. Noticeably defendant's plea of adverse possession is only in the alternative. In any event it cannot be held that defendant is estopped from pleading his ownership over the suit land. Equities qua possession, excess or otherwise, can be settled during partition proceedings. 15. The case of the appellants needs to be rejected also for another reason. Plaintiff claims his title on the basis of sale deed dated 19.1.2001 executed by Puran Chand. However plaint presented on 14.9.2001 records cause of action in the following manner: "6. That cause of action accrued (sic) to the plaintiff against the defendant during the month of April 1999 when the defendant illegally and forcibly took the illegal possession of the suit land by way of constructing the stone wall. However plaint presented on 14.9.2001 records cause of action in the following manner: "6. That cause of action accrued (sic) to the plaintiff against the defendant during the month of April 1999 when the defendant illegally and forcibly took the illegal possession of the suit land by way of constructing the stone wall. And the same is continued till today." Now, if prior to the execution of the sale deed, defendant was already in possession of the suit land, then obviously plaintiff's plea of having been dispossessed in the month of June, 2001, so stated in para -4 of the plaint, stands contradicted. Plaintiff cannot be allowed to take mutually destructive and contradictory pleas. 16. In the written statement defendant did not take any plea of joint ownership. However, absence thereof, cannot be taken as a bar, precluding the Court from deciding the lis in accordance with law, more so, on the basis of correct and complete appreciation of testimonies of the witnesses examined by the parties and the material placed on record by them. It cannot be said that the lower appellate Court transgressed its jurisdiction or misdirected its attention in not dealing with the issues involved in the appeal, warranting interference by this Court. 17. Findings of joint possession so returned by the lower appellate Court in paragraphs - 20 and 21 of the judgment cannot be said to be perverse warranting interference. 18. Learned counsel for the parties have referred to the following judicial pronouncements, which is only reflective of their industry. Careful perusal only reveals that in the given facts and circumstances, are of no assistance to the plaintiff: Deva (Dead) thr. Lrs. Vs. Sajjan Kumar (Dead) by Lrs., (2003) 7 SCC 481 ; Annakili Vs. A. Vedanayagam and Others, AIR 2008 SC 346 ; Amrit Lal v. Shiv Narain Gupta (2010) 15 SCC 510 ; Noor Sk. Bhikan Vs. State of Maharashtra and Others, (2011) 7 SCC 589 ; J. Samuel and Others Vs. Gattu Mahesh and Others, (2012) 2 SCC 300 ; Union of India (UOI) Vs. Ibrahim Uddin and Another, (2012) 8 SCC 148 ; Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and Others, (2013) 9 SCC 485 ; Hari Datt and Others Vs. Sapuran Dass, (1987) ShimLC 179 ; Devi Chand v. Raj Dulari, 1992 (2) Sim.L.C. 248; Inder Dass Vs. Ibrahim Uddin and Another, (2012) 8 SCC 148 ; Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and Others, (2013) 9 SCC 485 ; Hari Datt and Others Vs. Sapuran Dass, (1987) ShimLC 179 ; Devi Chand v. Raj Dulari, 1992 (2) Sim.L.C. 248; Inder Dass Vs. State of Himachal Pradesh and Others, (1994) 2 ShimLC 395 ; Tilak Raj Vs. Bhagat Ram and Another, (1997) 1 ShimLC 281 ; Tulsi Vs. Besar, AIR 2002 HP 12 ; Jagdish Chand Vs. Ambika Devi, (2014) 2 ShimLC 774 . 19. Findings arrived at by the courts below cannot be said to illegal, erroneous or perverse, not based on correct and complete appreciation of material on record, warranting any interference by this Court. 20. Consequently, there is no reason or ground sufficient enough to interfere with concurrent findings of fact recorded by the Courts below. Judgments passed by the Courts below cannot be said to be perverse or that evidence led by the parties was not correctly and completely appreciated. As such, substantial questions of law are answered accordingly and the present appeal dismissed. Pending applications, if any, also stands disposed of accordingly.