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2015 DIGILAW 1811 (HP)

Sonam Angroop v. Khub Ram

2015-12-07

DHARAM CHAND CHAUDHARY

body2015
JUDGMENT : Dharam Chand Chaudhary, J. Aggrieved by the judgment and decree dated 5.5.2004 passed by learned District Judge, Kullu in Civil Appeal No. 17/2004, the appellant (hereinafter referred to as the ‘defendant’) has filed the present appeal for quashing and setting aside the same. 2. The bone of contention in the present lis is a piece of land measuring 0-00-96 hectares bearing Khasra No. 1216, Khewat No. 115, Khatauni No. 146 situated in Phati Bari, Kothi Baragarh, Tehsil Manali, District Kullu as recorded in Misal Hakiyat for the year 2000-01 Ext. P-2/DW-1/D. The suit land was granted in ‘Nautor’ to one Sh. Ram Nath, as is apparent from the order of mutation dated 17.03.1985 Ext. DW-1/A. He died intastate and the suit land as such was inherited by his legal heirs Smt. Mohni Devi and Smt. Maya Devi, daughters, whereas Sh. Bhope Chand, son in equal shares. The mutation of inheritance No. 1128 was attested and sanctioned in their names, as is apparent from entries below remarks column in the Jamabandi for the year 1992-93, Ext. DW-1/E. The suit land was sold by aforesaid Mohni Devi, Maya Devi and Bhope Chand to the respondents (hereinafter referred to as the ‘plaintiffs’). The plaintiffs came to be recorded as owners in possession of the suit land, as is apparent from the entries in the Misal Hakiyat for the year 2000-01 Ext. P- 2/DW-1/D. Later on the defendant allegedly started causing interference in the suit land. He threatened the plaintiffs to take possession of the suit land forcibly and raise some construction thereon. They requested him to desist from such unlawful activities but of no avail, hence the suit for the decree of permanent prohibitory injunction restraining thereby the defendant from causing any interference over the suit land or taking possession thereof forcibly. In the alternative, a decree for possession of the suit land in the event of defendant succeeds in dispossessing the plaintiffs therefrom during the pendency of the suit, was also sought. 3. The defendant in the written statement has raised preliminary objections such as the suit is not maintainable, barred by limitation, plaintiffs are estopped from filing the suit, they have no locus standi to file and maintain the same and that they have not approached the Court with clean hands, hence not entitled to the relief of injunction discretionary in nature. The defendant in the written statement has raised preliminary objections such as the suit is not maintainable, barred by limitation, plaintiffs are estopped from filing the suit, they have no locus standi to file and maintain the same and that they have not approached the Court with clean hands, hence not entitled to the relief of injunction discretionary in nature. Also that the suit is not properly valued for the purpose of jurisdiction. The suit land has not been properly identified and that the defendant being in open, peaceful and continuous possession of the suit land since 1952 has acquired title by way of adverse possession. 4. On merits, it is reiterated that the suit land has not been properly identified. It is denied that the plaintiffs are owners in possession thereof, however, it is admitted that the suit land though was granted as ‘Nautor’ to one Ram Nath, however, neither said Sh. Ram Nath nor his legal heirs ever occupied the same nor were competent to alienate or dispose of the same to any third person. It is also submitted that neither deceased Ram Nath nor his legal heirs and for that matter even the present plaintiffs had never cultivated the suit land. The same is stated to be in possession of the defendant. 5. On the pleadings of the parties learned trial Court has framed the following issues:- 1. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed for? OPP. 2. Whether the plaintiffs are enttield for the alternative relief of mandatory injunction as prayed for? OPP 3. Whether the plaintiffs are not in possession of the suit land, if so, its effect? OPD. 4. Whether the suit is time bar as alleged? OPD. 5. Whether the plaintiffs are estopped to file the present suit by their act, conduct and deed as alleged? OPD. 6. Whether the plaintiffs have no locus-standi to file the present suit and the suit is not maintainable as alleged? OPD. 7. Whether the suit is not properly valued for the purposes of court fee and jurisdiction as alleged? OPD. 8. Relief. 6. After holding full trial, the suit was dismissed. In appeal learned lower appellate Court has framed Issue No. 7-A and remanded the case to learned trial Court. OPD. 7. Whether the suit is not properly valued for the purposes of court fee and jurisdiction as alleged? OPD. 8. Relief. 6. After holding full trial, the suit was dismissed. In appeal learned lower appellate Court has framed Issue No. 7-A and remanded the case to learned trial Court. The additional issue reads as follows:- 7-A. If issue No. 1 is proved in affirmative whether the plaintiff in the alternative is entitled for the relief of possession, as alleged? OPP. 7. Learned trial Court also framed one more additional issue No. 7-B which reads as follow:- 7-B. Whether the defendant became owner by way of adverse possession as alleged? OPD. 8. The parties were allowed to produce evidence and on completion of the record, learned trial Court while deciding issues No. 1, 2, 4, 7 and 7-B in negative had decided issue No. 3 in affirmative. Consequently, the plaintiffs were held to be in possession of the suit land and found to have been forcibly dispossessed from the suit land recently. Therefore, while discarding the plea of adverse possession raised by the defendant has decreed the suit for possession of the suit land while answering issue No. 7-A in favour of the plaintiffs. 9. The judgment and decree dated 22.12.2003 passed by learned trial in the suit, was further assailed before learned lower appellate Court and the appeal filed by the defendant has also been dismissed vide judgment and decree under challenge in the present appeal. 10. The legality and validity of the impugned judgment and decree has been questioned on the grounds inter-alia that the findings recorded by both Courts below are contrary to the entries in the revenue record qua the suit land. Also that there is no link evidence to show that it is the suit land alone which was granted in ‘Nautor’ to Sh. Ram Nath. On the other hand, the defendant has been held to be in possession of the suit land. Therefore, the plaintiffs have no right, title or interest thereon, as such, the suit should have been dismissed. The plea of adverse possession raised by the defendant is stated to be erroneously brushed aside. The suit could have not been decreed as the identification of the suit land is not at all proved. Therefore, the plaintiffs have no right, title or interest thereon, as such, the suit should have been dismissed. The plea of adverse possession raised by the defendant is stated to be erroneously brushed aside. The suit could have not been decreed as the identification of the suit land is not at all proved. The suit land was not a part of the land granted in ‘Nautor’ by the State Government to deceased Ram Nath. 11. The appeal has been admitted on the following substantial question of law:- Whether on account of mis-appreciation of the pleadings, misreading and misconstruction of the oral as well as documentary evidence available on record, the findings recorded by both Courts below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable? 12. Learned counsel representing the defendant while taking this Court to the judgment and decree under challenge has strenuously contended that when as per the findings recorded by learned trial Court it was not possible to ascertain as to which of the party is in possession of the suit land, decree for possession could have not been passed in favour of the plaintiffs. Also that the identification of the suit land is not at all established. The increase in its area also remained unexplained. Though, the plaintiffs have denied the existence of four billo trees and one ‘Aroo’ (apricot) tree over the suit land, however, the suggestion given to defendant in his cross-examination that such trees have not been planted over the suit land and rather grown up there, belies their stand that no such trees were in existence over the suit land. Therefore, according to learned counsel, in view of self-contradictory and unreliable evidence produced by the plaintiffs, no decree could have been passed. On the strength of ratio of the judgment of the Hon’ble Supreme Court in State of Rajasthan versus Harphool Singh (Dead) through is LRs (2000) 5 SCC 652 , it has been urged that the High Court in Regular Second Appeal can interfere with the concurrent findings also, in case the evidence available on record has been mis-interpreted and mis-understood by both Courts below. 13. 13. On the other hand, learned counsel representing the plaintiffs has strenuously contended that both Courts below while appreciating the evidence available on record in its right perspective have rightly decreed the suit and the concurrent findings so recorded cannot be reversed in second appeal. 14. The aforesaid substantial question of law arises for determination in the present lis or not has to be seen in the light of the evidence available on record. 15. Now, if coming to the law laid down by the Apex Court in Harphool Singh’s case supra, there can’t be any quarrel qua the same for the reason that High Court in Regular Second Appeal can always interfere with the concurrent findings recorded by both Courts below on misconstruction and misreading of the evidence available on record. 16. The present, however, is not a case where the Courts below can be said to have mis-appreciated or misconstrued the evidence available on record for the reason that as per the case of the defendant himself, suit land measuring 0-2-0 bigha bearing Khasra No. 960(old) was granted ‘Nautor’ by the State Government to deceased Ram Nath. He has himself produced on record copy of Jamabandi for the year 1987-88, Ext. DW- 1/A. As per his own case, said Sh. Ram Nath died and he was succeeded by his daughters and son. The mutation of inheritance No. 1128, as is apparent from the entries below remarks column of Ext. DW-1/E was attested and sanctioned in their favour, therefore, they became owners in possession of the suit land. Further entries below remarks column of Ext. DW-1/E reveal that aforesaid legal heirs of deceased Ram Nath had sold the land further to S/Sh. Khub Ram and Ludar Chand (plaintiffs herein) and mutation No. 1256 was attested and sanctioned in their favour on 31.12.1998. As per the entries in Misal Hakiyat Bandobast Jadeed for the year 2000-01 Ext. P-2/DW-1/D during the settlement, the old Khasra No. 960 of the suit land was allotted new Khasra number 1216 and while under the old Khasra number its area was in biswas i.e. two biswas, under the new Khasra number it has been reflected in hectares. As per the entries in Misal Hakiyat Bandobast Jadeed for the year 2000-01 Ext. P-2/DW-1/D during the settlement, the old Khasra No. 960 of the suit land was allotted new Khasra number 1216 and while under the old Khasra number its area was in biswas i.e. two biswas, under the new Khasra number it has been reflected in hectares. Therefore, when land measuring 2 biswas under old Khasra number 960 was allotted as ‘Nautor’ to deceased Ram Nath and this Khasra number during settlement was denoted by new Khasra number 1216, it cannot be said by any stretch of imagination from the evidence on record that the identity of the suit land has not been established. True it is that area of the suit land is increased few biswansi i.e. 08 biswansi. Such increase has resulted on account of settlement operation carried out in the area where the suit land is situated. Otherwise also, the increase being in biswansi is negligible and the same not render the identity of the suit land doubtful, particularly when the Misal Hakiyat Bandobast Jadid produced by the defendant himself reveals that the old Khasra Number of the suit land i.e. 960 was denoted by new Khasra No. 1216. Therefore, the identity of the suit land is fully established and on this score, the defendant has failed to make out any case seeking intervention of this Court in the present appeal. 17. Now, if coming to the plea of adverse possession raised by the defendant in written statement, before coming to the evidence qua this aspect of the matter he produced it is deemed appropriate to discuss here as to under what circumstances the plea of adverse possession can be said to have been proved in legal parlance. The apex Court in Harphool Singh’s case supra has held 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 apex Court in Harphool Singh’s case supra has held 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 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 5 years of the required period. There is no scrap of proper or concrete material to prove any such possession of the plaintiff’s father nor was there any specific finding supported by any evidenced, in this regard.” 18. The apex Court in Karnataka Board of Wakf versus Government of India and others 2004(4) Scale, 856 has further held as under:- “10. Now we will turn to the aspect of adverse possession in the context of the present case. Appellants averred that the plea of the respondent based on title of the suit property and the plea of adverse possession area mutually exclusive. Thus findings of the High Court that the title of Government of India over the suit property by way of adverse possession is assailed. 11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person take possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’, that is, peaceful, open and adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’, that is, peaceful, open and adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owners and be actual, visible, exclusive, hostile and continued over the statutory period. (see: S.M. Karim v. Bibi Sakinal AIR 1964 SC 1254 , Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567 ). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” 19. Our own High Court has also held so in Ashok Kumar versus Hardyal and others, 1995(1) Sim.L.C 79. The relevant portion of this judgment is also re-produced as under:- “Needless to say, adverse possession should have the characteristic of adequacy, continuity and exclusiveness. There is again no dispute to the proposition that the onus to establish these characteristics is on the person claiming adverse possession. In order to appreciate the evidence in this particular behalf, the entire evidence brought on record has to be scrutinized inasmuch as, at this stage of trial, the onus of proving such an issue looses all significance and the real controversy between the parties has to be determined on the basis of the entire evidence on record.” 20. Similar is the ratio of the judgment of our own High Court in Inder Dass versus State of Himachal Pradesh 1995(1) S.L.J 699. Similar is the ratio of the judgment of our own High Court in Inder Dass versus State of Himachal Pradesh 1995(1) S.L.J 699. The relevant portion of this judgment is re-produced as under:- “The elements which convert the peaceful possession into adverse possession are that it is actual, open, notorious, exclusive and continuous for a period of twelve years in case of private property and for a period of thirty years in the case of Government property.” 21. Our own High Court in Gajinder Singh and others versus Narotam Singh and others, 1996(1) S.L.J 428 has again 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. The relevant portion of this judgment is also re-produced as under:- “There is no dispute to the proportion that adverse possession is that possession which is peaceful, open and continuous and this possession is required to be adequate in continuity and in publicity. Not only that, it must be actual, visible, exclusive, hostile and continuous for over the statutory period. The hostile character of the possession can be inferred by the animus of the person setting up adverse possession. Before a party can succeed in establishing his title on the basis of adverse possession, he must show on what day he came into possession and what was the period of such adverse possession. Thus there must be clear assertion of hostile title. This possession must be to the knowledge of the owner.” 22. Mere long possession is not enough to prove the plea of adverse possession. It is held so by our own High Court in Tilak Raj versus Bhagat Ram and another, 1997 (1) Sim.L.C. 281. 23. Thus there must be clear assertion of hostile title. This possession must be to the knowledge of the owner.” 22. Mere long possession is not enough to prove the plea of adverse possession. It is held so by our own High Court in Tilak Raj versus Bhagat Ram and another, 1997 (1) Sim.L.C. 281. 23. In another judgment, Badri Prakash versus Krishan Gopal 2004(Suppl.) Current Law Journal (HP) 399, this Court has again held as under:- “Howsoever long may have been the possession unless overt acts, with hostile animus are also simultaneously established, mere long possession by itself does not establish adverse possession. A person claiming adverse possession, a litigant like defendant against its real/true owner, he has to establish it beyond any shadow of doubt, because there is no right, much less equity in his favour.” 24. Similar is the ratio of the judgment in Om Parkash versus Kulbhushan and others, 2002(2) S.L.J. 1806 as in this case the statement of the defendant that he is in possession for more than 31 years has been held to be absolutely meaningless because as per the ratio of the judgment there must be specific point of time from where limitation for calculation of the period prescribed for adverse possession starts. Not only this, the party raising the plea of adverse possession has also to show the overt acts committed by him holding out himself to be owner of the property in question to the knowledge and exclusion to the true owner. 25. Now, if coming to the defendant’s case in the preliminary objections, his stand is that he is in open and continuous possession over the suit land since the year 1952. Now, if coming to the evidence available on record, though he is in possession of the suit land since the year 1952, however, he has constructed the house thereon in the year 1975. There is no evidence that house has been constructed by him over the suit land in the year 1975. True it is that in the Jamabandi Ext. DW-1/A and also copy of register Ext. DW-1/B (sic.), the suit land has been recorded as ‘Gair Mumkin Abadi’, however, as per Misal Hakiyat Bandobast Jadid for the year 2000-01 the same has been recorded as ‘Banjar Kadim’. The defendant also admits that the suit land is vacant on the spot. True it is that in the Jamabandi Ext. DW-1/A and also copy of register Ext. DW-1/B (sic.), the suit land has been recorded as ‘Gair Mumkin Abadi’, however, as per Misal Hakiyat Bandobast Jadid for the year 2000-01 the same has been recorded as ‘Banjar Kadim’. The defendant also admits that the suit land is vacant on the spot. He has not stated anything that he has constructed house thereon. Therefore, even if he is in possession of the suit land since the year 1952, the same cannot be said to be adverse as he has miserably failed to prove that from what point of time, the limitation for calculation of the period prescribed for adverse possession starts. Not only this, the party raising the plea of adverse possession has also to prove the overt acts attributed to him holding him to be owner of the property in question openly and in exclusion of the true owners. Mere assertions in the written statement that he is in open, peaceful and continuous possession of the suit land since the year 1952 and while in the witness box that though he is in possession of the suit land right from the year 1952, however, constructed a house thereon in the year 1975 are not sufficient to prove the plea of adverse possession. 26. If coming to the statement of DW-2, as per his version, the defendant has recently stacked stones over the suit land and pegging his cattle over the land in question for the last 25 years. This is not the case of the defendant that he has stacked the stones or has been pegging his cattle in the suit land. Above all, DW-2 seems to have no knowledge about the location of the suit land and he has deposed about own land of the defendant. This alone is the evidence produced by the defendant, which in my opinion, is not sufficient to prove the plea of adverse possession. True it is that he has been held to be in possession of the suit land, however, the findings so recorded cannot be relied upon to arrive at a conclusion that he has acquired title in the suit land by way of adverse possession. 27. True it is that he has been held to be in possession of the suit land, however, the findings so recorded cannot be relied upon to arrive at a conclusion that he has acquired title in the suit land by way of adverse possession. 27. On the other hand, the evidence available on record reveals that he tried to take forcible possession of the suit land near and around the institution of the suit and as such, the plaintiffs’ case is nearer to the factual position. Therefore, both Courts below have not committed any illegality or irregularity while arriving at a conclusion that the defendant has failed to prove the plea of he having acquired title over the suit land by way of adverse possession with the help of cogent and reliable evidence. Since he has no right, title or interest in the suit land and has illegally dispossessed the plaintiffs therefrom, therefore, the decree of possession of the suit land has rightly been passed in favour of the plaintiffs and against the defendant. Substantial question of law is accordingly answered. 28. In view of what has been said hereinabove, no legal question what to speak of substantial question of law arise for determination in the present appeal. Consequently, the judgment and decree under challenge is affirmed and the appeal dismissed, however, with no orders so as to costs.