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2015 DIGILAW 1828 (HP)

MALTI DEVI v. JIA LAL

2015-12-09

SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. 1. These regular second appeals stand filed under Section 100 of Code of Civil Procedure. Concurrent findings of fact stand challenged by the appellants. 2. On 28.04.2003 Jia Lal, Babu Ram, Smt. Dashoda Devi, Smt. Palko and Charanjeet Singh (plaintiffs-respondents in RSA No. 482 of 2015) filed a suit being Civil Suit No. 102/1 of 2003, titled as Jia Lal & others v. Nathu Ram through his LRs. for permanent injunction against Nathu Ram (predecessor in interest of the present appellants). These plaintiffs, being owners in possession of the suit land sought injunction against the defendants/successors in interest from interfering with the same. 3. Defendant Nathu Ram resisted the suit claiming to be owner in possession of the suit land and having perfected his title by way of adverse possession. In the said suit trial Court framed the following issues:- 1. Whether the plaintiffs are co-owners in possession of the suit land, as alleged? OPP 2. Whether the defendants are interfering in suit land in an illegal manner? OPP 3. Whether the plaintiffs are estopped to file the suit due to their act and conduct? OPD 4. Whether the suit is not maintainable? OPD 5. Whether the defendants have become owners in possession of suit land by way of adverse possession? OPD. 6. Relief. 4. Based on their right of title, by way of adverse possession, defendant Nathu Ram filed a separate suit for declaration and injunction. This was so done on 20.05.2003. The said suit was registered as Civil Suit No. 131/1 of 2007/03, titled as Nathu Ram, now deceased through his LRs v. Jia Lal & others, wherein following issues were framed:- 1. Whether the plaintiff has become owner of Khasra No.31, measuring 4-16 bighas and Khasra No.85/73/34 measuring 8-9 bighas to the extent of 2-15 bighas by way of adverse possession, as alleged? OPP 2. If issue No.1 proved in affirmative, whether revenue entries to the contrary are wrong and illegal, as alleged? OPP 3. Whether plaintiff has been possessing landed property to the extent of 11/12 shares as tenant under Mandir Thakur Dwara, as alleged? OPP 4. If issue No.3 is proved in affirmative, whether the plaintiff has become owner of this land by operation of law? OPP 5. Whether defendants are interfering in the suit land in an illegal manner? OPP 6. Relief. 5. OPP 4. If issue No.3 is proved in affirmative, whether the plaintiff has become owner of this land by operation of law? OPP 5. Whether defendants are interfering in the suit land in an illegal manner? OPP 6. Relief. 5. Accepting the plaintiffs' contentions, vide judgment dated 02.07.2012, passed in Civil Suit No. 102/1 of 2003, titled as Jia Lal & others v. Nathu Ram, now deceased through his LRs, Civil Judge (Senior Division), Solan, District Solan, H.P., decreed the suit in the following terms:- "Judged in the light of my findings returned on the forgoing issues above, the suit of the plaintiffs succeeds and the same is hereby decreed restraining the defendants from interfering over the suit land in any manners, cutting and removing valuable trees or changing the nature of the suit land i.e. land measuring 18 bighas 16 biswas comprising Khata/Khatauni No.1min/13 Khasra No.21 and Khasra No.85/73/34, situated in Mauja Dharoli, Paragana Bharoli Kalan Tehsil and District Solan (HP) in favour of plaintiffs against the defendants with costs. Decree sheet be drawn up accordingly. File after due completion be consigned to record room. Announced and signed in the open Court on this 2nd day of July, 2012." 6. Resultantly vide judgment and decree dated 02.07.2012, passed in Civil Suit No.131/1 of 2007/03, titled as Nathu Ram, now deceased through his LRs v. Jia Lal & others, trial Court dismissed the said subsequent suit with costs. 7. Appeals filed by the legal heirs of Nathu Ram stand dismissed by the lower Appellate Court vide separate judgments dated 15.05.2015 (being Civil Appeal No. 7-S/13 of 2013, titled as Malti Devi & others v. Jia Lal & others and Civil Appeal No. 8-S/13 of 2013, titled as Shyam Lal & others v. Jia Lal & others), which are subject matters of challenge in these appeals. 8. Having heard learned counsel for the parties as also perused the record, so made available, Court is of the considered view that no question of law, much less substantial question, arises for consideration in the present appeals. 9. Plaintiffs of the first suit, by proving revenue record (Ex.P-1 and Ex.P-2), jamabandis from the year 1998 onwards, proved themselves to be owners in possession of the suit land. Significantly revenue record does not reflect Nathu Ram to be either in possession or owner thereof. They are not even reflected as co-owners. 10. 9. Plaintiffs of the first suit, by proving revenue record (Ex.P-1 and Ex.P-2), jamabandis from the year 1998 onwards, proved themselves to be owners in possession of the suit land. Significantly revenue record does not reflect Nathu Ram to be either in possession or owner thereof. They are not even reflected as co-owners. 10. To establish the ownership by way of adverse possession, based on the settled principles of law, Nathu Ram had to prove his possession, hostile to that of the true owners. In the instant case animus dessidendi cannot be said to have been proven, even prima facie shown on record. Possession even permissive would not confer any right of title. The onus to establish and prove the burden of ownership, on the issues framed by the trial Court, heavily rested upon Nathu Ram/successor in interest, which cannot be said to have been discharged on record. 11. I see no infirmity, illegality or impropriety with the concurrent findings returned by the Courts below. It cannot be said that findings returned by the Courts below are a result of incorrect and incomplete appreciation of facts and material placed on record by the parties as also settled position of law. 12. The present appeals are accordingly dismissed. Pending applications, if any, also stand disposed of accordingly.