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2015 DIGILAW 1509 (HP)

Mulkh Raj v. Mast Ram

2015-10-14

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Kangra at Dharamshala, H.P. dated 6.10.2003, passed in Civil Appeal No. 54-G/XIII-02. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs), have instituted suit for declaration qua ownership and in the alternative for possession against the appellants-defendants (hereinafter referred to as the defendants). The subject matter of the suit is land comprised in Khata No. 21, Khatauni No. 35, Kh. No. 148 to 151, measuring 0-42-99 hectares and Khata No. 22, Khatauni No. 36, Kh. No. 202, 203, 206, 206/1, 208 and 213, measuring 0-51-89 hectares, situated in Mohal Jakhot, Mauza Bharoli, Tehsil Dehra, Distt. Kangra, H.P., as per jamabandi for the year 1990-91 (hereinafter referred to as the suit land). The suit land was initially owned and possessed by one Sh. Dallu son of Shibu who had two sons namely, Kihru and Jalsi. The plaintiffs are successors-in-interest of Jalsi and defendant No. 1 Mulkh Raj, is successor-in-interest of Kihru. The plaintiffs consequently filed a suit against the defendants. It was decided by the learned District Judge, Kangra on 29.8.1969. The plaintiffs were in possession of the suit land prior to the death of Dallu and after the decision of the Court in the year 1969, they continued in possession of this land asserting their right of ownership openly, peacefully, continuously and as such they claimed adverse possession. During the year 1971, Sh. Kihru, predecessor-in-interest of defendant No. 1 Mulkh Raj filed civil suit for possession of suit land against the plaintiffs. It was dismissed by the Senior Sub Judge, Kangra on 27.10.1980. However, after dismissal of suit, possession of the suit land remained with the plaintiffs. The predecessor-in-interest of the defendant No. 1 Mulkh Raj attempted to take possession of the suit land from the plaintiffs but was not allowed to take possession and they have right of ownership for the last 25 years and as such they have become owner of the suit land by way of adverse possession. 3. The suit was contested by the defendants. The defendants controverted the claim of the plaintiffs that they were coming in possession of the suit land prior to the death of Dallu and have become owners of the suit land by way of adverse possession. 3. The suit was contested by the defendants. The defendants controverted the claim of the plaintiffs that they were coming in possession of the suit land prior to the death of Dallu and have become owners of the suit land by way of adverse possession. According to them, Dallu had executed Will dated 26.9.1962 in favour of Khiru, predecessor-interest of defendant No. 1 on the basis of which he succeeded to the estate of Dallu in the year 1963. Thereafter, Jalsi predecessor-in-interest of plaintiffs filed suit for possession of ½ share of the land of Dallu on the ground that the Will was not valid. It was decided by the learned Senior Sub Judge, Kangra. It was challenged in appeal by Khiru before the learned District Judge, Kangra and the learned District Judge, Kangra vide judgment dated 29.8.1969 modified the decree whereby the land granted to the plaintiffs was reduced from 14 kanals 4 marlas to 14 kanals. It was denied that mutation No. 66 was obtained by defendants in connivance with the revenue officials. According to them, it was at the instance of the plaintiffs that this mutation was got sanctioned in accordance with the decision in appeal dated 29.8.1969. 4. The replication was filed by the plaintiffs. The learned Sub Judge 1st Class (I), Dehra framed the issues and the suit was dismissed vide judgment dated 23.4.2002. The plaintiffs, feeling aggrieved, preferred an appeal against the judgment and decree dated 23.4.2002. The learned District Judge, Kangra at Dharamshala, allowed the same on 6.10.2003. Hence, this regular second appeal. 5. The regular second appeal was admitted on the following substantial questions of law on 7.5.2004: “1. Whether the plea of adverse possession was available to the plaintiff in the face of the findings in Civil Suit No. 226 of 1971 and order of the Assistant Collector dated 16th of October, 1990? 2. Whether the plaintiff can be permitted to take the plea of adverse possession in view of the fact that parties were co-sharers and partition proceedings were initiated within 12 years? 3. Whether the findings of the First Appellate Court are perverse based on misreading of oral and documentary evidence?” 6. Mr. 2. Whether the plaintiff can be permitted to take the plea of adverse possession in view of the fact that parties were co-sharers and partition proceedings were initiated within 12 years? 3. Whether the findings of the First Appellate Court are perverse based on misreading of oral and documentary evidence?” 6. Mr. Rajneesh K. Lall, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that the plea of adverse possession was not available to the plaintiffs in view of the findings in Civil Suit No. 226 of 1971 and the order of the Assistant Collector dated 16th October, 1990. He has supported the judgment and decree passed by the learned Sub Judge 1st Class (I), Dehra. On the other hand, Mr. Ashok Tyagi, Advocate has supported the judgment and decree passed by the learned first appellate Court dated 6.10.2003. 7. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully. 8. It is not in dispute that Dallu was common ancestor of the parties. He was owner-in-possession of the suit land. Kihru was predecessor-in-interest of defendant No. 1 and Jalsi predecessor-in-interest of plaintiffs. Dallu had executed Will dated 26.9.1962 in favour of Kihru and the same was challenged by the plaintiffs by way of Civil Suit No. 57/64. The suit was decided in favour of the plaintiffs on 14.10.1966. The decree was challenged by Kihru before the learned District Judge, Kangra. The matter was compromised on 29.8.1969. The copy of order is Ext. P-9. The plaintiffs were held entitled to 14 kanals of land in place of 14 kanals 4 marlas. Kihru also filed Civil Suit No. 226 of 1971. The learned Sub Judge, vide judgment dated 27.10.1980 Ext. D-5, dismissed the suit on merits. Kihru has admitted that he was in possession of the suit land. The decree was not assailed by Kihru Ram. 9. In jamabandi for the year 1985-86 Ext. P-4, jamabandi for the year 1977-78 Ext. P-5, jamabandi for the year 1975-76 Ext. P-6, jamabandi for the year 1968-69 Ext. P-7, the possession of the suit land continued to be recorded of that of the plaintiffs as non-occupancy tenants under Kihru. 10. The statement of PW-1 Prem Dass was corroborated by PW-2 Devi Singh. He testified that the suit land was continuously possessed and cultivated by plaintiffs since 30-35 years. P-6, jamabandi for the year 1968-69 Ext. P-7, the possession of the suit land continued to be recorded of that of the plaintiffs as non-occupancy tenants under Kihru. 10. The statement of PW-1 Prem Dass was corroborated by PW-2 Devi Singh. He testified that the suit land was continuously possessed and cultivated by plaintiffs since 30-35 years. Sh. Kihru in the year 1969 had requested him to get the suit land vacated from the plaintiffs and he alongwith Har Chand Singh asked the plaintiffs to give possession to Kihru but they refused. 11. DW-1 Mulakh Raj son of Kihru deposed that the plaintiffs are only entitled to get 14 kanals of land. He denied the suggestion that since 1969 plaintiffs are proclaiming themselves to be exclusive owner of 32 kanals 5 marlas of land or that plaintiffs have become owners of 18 kanals 5 marlas of land qua which his father had filed a suit. 12. The learned District Judge, Kangra returned findings to the effect that the possession of the plaintiffs was never interrupted despite the compromise decree before the Addl. District Judge, Dharamshala. According to him, due to long, continuous and recorded possession of more than 12 years, the plaintiffs have acquired title to the suit property by way of adverse possession. The plaintiffs have filed suit for declaration of ownership and also in the alternative for possession based on adverse possession. 13. Their lordships of the Hon’ble Supreme Court in the case of Gurdwara Sahib vrs. Gram Panchayat Village Sirthala and another, reported in (2014) 1 SCC 669 , have held that even if the plaintiff was found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Their lordships have held as follows: “8. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.” 14. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.” 14. Accordingly, in view of the definitive law laid down by the Hon’ble Supreme Court in the judgment cited hereinabove, it is held that the declarative suit filed at the instance of the plaintiffs was not maintainable on the basis of adverse possession. The learned first appellate Court has erred in law by reversing the findings rendered by the learned Sub Judge 1st Class (I), Dehra dated 23.4.2002 by declaring the plaintiffs to be owners-in-possession of the suit land by way of adverse possession. 15. Consequently, the regular second appeal is allowed. The judgment and decree passed by the learned District Judge, Kangra at Dharamshala dated 6.10.2003 is set aside. The judgment rendered by learned Sub Judge 1st Class (I), Dehra, Distt. Kangra dated 23.4.2002 is restored. No costs.