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2015 DIGILAW 1869 (HP)

NIRMALA DEVI v. NATHU RAM

2015-12-11

DHARAM CHAND CHAUDHARY

body2015
JUDGMENT : Dharam Chand Chaudhary, J. 1. Challenge herein is to the judgment and decree dated 1.6.2004, passed by learned District Judge, Kinnaur Civil Division at Rampur Bushahr, in Civil Appeal No. 37 of 2003. The lower appellate Court has affirmed the judgment and decree dated 1.9.2003, passed by learned Sub Judge 1st Class, Rampur Bushahr, in Civil Suit No. 65-1 of 2001 and dismissed the appeal. The present as such is a case of concurrent findings recorded by both Courts below on appreciation of the given facts and circumstances and also the evidence available on record. 2. The defendant is in second appeal, as the complaint is that the respondent/plaintiff has sold land measuring 5 bighas including the suit land to her and her husband late Shri Ram Rattan. On the other hand, the case of the respondent/plaintiff is that he has only sold 4-14 bighas of land bearing Khasra No. 1845/1692/420/1 to the defendant and her husband late Shri Ram Rattan. The suit land is entered in Khata/Khatauni No. 107/518, Khasra No. 39 (new), measuring 0-02-41 hectares corresponding to old Khasra No. 1845/1692/420/2, measuring 6 biswas. The same is in his ownership and possession. The defendant allegedly managed the entry of possession qua the suit land during the recent settlement having taken place three months prior to institution of the suit and thereafter started collecting construction material thereon. She started construction work and erected a pillar over the suit land. He requested her to desist from such illegal acts, but of no avail. Therefore, decree for possession of the suit land by demolition of the construction raised thereon was sought by filing the present suit in the trial Court. 3. The defendant, besides preliminary objections, has carved out a case that she had purchased 5 bighas of land in a sum of Rs. 4,500/- from the respondent/plaintiff. Agreement Ext. DW6/A came to be executed between them. A sum of Rs. 3,000/- was paid to the plaintiff at the time of execution of the agreement, whereas Rs. 1,000/- on 1.5.1978 vide receipt mark 'Y'. Therefore, it has been pleaded that the plaintiff has no right, title and interest in the suit land. 4,500/- from the respondent/plaintiff. Agreement Ext. DW6/A came to be executed between them. A sum of Rs. 3,000/- was paid to the plaintiff at the time of execution of the agreement, whereas Rs. 1,000/- on 1.5.1978 vide receipt mark 'Y'. Therefore, it has been pleaded that the plaintiff has no right, title and interest in the suit land. It is denied that she started collecting the construction material over the suit land and rather according to her; she had constructed the house over the land she purchased from the plaintiff much prior to filing of the suit. She has disputed the locus-standi of the plaintiff to ask her to desist from raising any construction over the suit land, as according to her, she otherwise has perfected her title by way of adverse possession being in open, continuous and uninterrupted possession of the suit land right from 15.2.1978 till date. On such pleadings of the parties, learned trial Court has framed the following issues: "1. Whether the plaintiff is entitled for the decree of possession of the suit land? OPP. 2. Whether the plaintiff is entitled for decree of mandatory injunction of the suit land? OPP. 3. Whether the suit is barred under Section 53-A of T.P.A Act? OPD. 4. Whether the defendant is in possession of the suit land since 15.2.1978 and became the owner of the suit land by way of adverse possession? OPD. 5. Whether the defendant's husband had purchased the suit land by registered sale deed No. 60/79? OPD. 6. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD. 7. Whether the plaintiff has no cause of action? OPD. 8. Relief." 4. On appreciation of the evidence available on record, learned trial Court has returned the findings on issues No. 3 and 4 in negative, i.e., against the defendant because the suit was neither found to be barred under Section 53A of the Transfer of Property Act (in short 'the Act') nor the defendant having acquired title in the suit land by way of adverse possession. Consequently, while answering issues No. 1 and 2, the plaintiff was held entitled to the decree of possession of the suit land by demolition of the construction the defendant raised and as per the findings recorded on issue No. 5, her husband was not found to have purchased the suit land vide registered sale deed Ext. PW-1/A. Issues No. 6 and 7 qua valuation of the suit for the purposes of court fees and jurisdiction and cause of action, however, were answered against the defendant. 5. The defendant aggrieved by the judgment and decree passed by learned trial Court had questioned the legality and validity thereof before learned lower appellate Court. As noticed at the outside, learned lower appellate Court, however, has dismissed the appeal and affirmed the judgment and decree passed by learned trial Court. 6. The legality and validity of the judgment and decree passed by learned lower appellate Court has been assailed before this Court on the grounds inter alia that the plaintiff having filed the suit land on the basis of title was required to prove his actual or constructive possession over the suit land, he, however, failed to do so and the Courts below lost sight of this fact. On the other hand, the evidence reveals that the defendant is in possession of the suit land. The admission in the plaint that the defendant is in possession of the suit land, has been ignored by both Courts below. The entries to this effect came to be recorded in the Jamabandi for the year 1986. The plea of limitation raised in the written statement has not been appreciated in right perspective by both Courts below and rather stated to have lost sight of the fact that balance sale consideration Rs. 500/- was to be paid to the respondent/plaintiff at the time of attestation of the mutation. The judgment and decree under challenge has, therefore, been sought to be quashed and set aside. 7. The appeal has been admitted on the following substantial question of law: "Whether on account of misappreciation of the pleadings and misreading 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 the main appeal being perverse and vitiated is not legally sustainable?" 8. Having gone through the evidence available on record and taking into consideration the rival submissions it would not be improper to conclude that learned lower appellate Court has not only appreciated the given facts and circumstances of this case in its right perspective, but also the evidence consisting of oral as well as documentary and as such it can not be said that the judgment and decree impugned is vitiated on account of misreading, misappreciation and misconstruction of the evidence available on record and as such legally unsustainable. 9. The conclusion so drawn by this Court finds support from the admitted case of the parties qua the plaintiff having sold only land measuring 4-14 bighas to the defendant vide sale deed Ext. PW-1/A. No doubt, in the agreement to sell there is a reference qua the sale of 5 bighas by the plaintiff to the defendant in a sum of Rs. 4,500/- and out of which Rs. 3,000/- was paid on the day of execution of this document itself, whereas the remaining amount of Rs. 1,500/- was to be paid to the plaintiff at the time of execution of the sale deed. However, if the sale deed is seen, the area sold thereby is 4-14 bighas, whereas the sale consideration Rs. 2,500/-. It is the sale deed a contemporaneous piece of evidence qua the sale of any property. Otherwise also, the sale deed later in point of time is required to be taken into consideration to arrive at a conclusion as to how much land was sold by the plaintiff to the defendant. The agreement Ext. DW-6/A qua of sale of 5 bighas of land in a sum of Rs. 4,500/-, even if believed to be true, was not at all acted upon because the sale deed pertains to 4-14 Bighas of land and the sale consideration Rs. 4,500/-. It appears that after execution of the agreement the parties had some understanding amongst themselves and as a result thereof the plaintiff has sold land measuring 4-14 bighas only to the defendant in a sum of Rs. 2,500/-. Otherwise also, there is no iota of evidence to show that the entire sale consideration, as per agreement Ext. DW-6/A, was paid to the plaintiff because as per this document a sum of Rs. 2,500/-. Otherwise also, there is no iota of evidence to show that the entire sale consideration, as per agreement Ext. DW-6/A, was paid to the plaintiff because as per this document a sum of Rs. 3,000/- was paid on the date of its execution and as per the stand of the defendant in the written statement only Rs. 1,000/- was paid to the plaintiff on 1.5.1978. Even if the defendant's claim to this effect is believed to be true, what happened to remaining sale consideration, i.e., Rs. 500/-, no explanation is forth coming. There is no iota of evidence that Rs. 500/- was agreed to be paid to the plaintiff at the time of attestation and sanction of mutation because nothing to this effect either finds mention in the agreement Ext. DW-6/A or the sale deed Ext. PW-1/A. Even mutation Ext. PW-1/B on the basis of the sale deed Ext. PW-1/A has also been attested and sanctioned qua the land measuring 4-14 bighas. 10. If coming to the revenue entries qua the suit land, its old khasra number as per entries in Bandobast Jadid is 1859/1845/1692/420 and new khasra No. 39. It is so shown in the Aks Shajra Kistwar Babdobast Jadid, Ext. PW-1/D. The plaintiff has been shown as owner of the suit land, whereas the defendant in possession thereof. The settlement, as per the averments in the plaint, had taken place three months prior to the institution of the suit. The suit has been instituted on 11.12.2001. The defendant has not produced any evidence to prove otherwise that the settlement did not take place three months prior to the institution of the suit. There is also no iota of evidence to show that she is in possession of the suit land right from 15.12.1978. She while in the witness box has categorically stated that she had raised construction of her house over the land she purchased well before institution of the suit vide sale deed Ext. PW-1/A from the plaintiff. The admission that she had constructed a RCC pillar in December, 2001 nearby to her house leads to the only conclusion that she has herself supported the plaintiff's case qua raising of construction of pillar by her over the suit land despite of his protest. 11. PW-1/A from the plaintiff. The admission that she had constructed a RCC pillar in December, 2001 nearby to her house leads to the only conclusion that she has herself supported the plaintiff's case qua raising of construction of pillar by her over the suit land despite of his protest. 11. If coming to the plea of adverse possession, it has rightly been held by both Courts below that in view of the protection as envisaged under Section 53A of the Act the defendant could have not raised the plea of acquiring title in the suit land by way of adverse possession. 12. The protection under Section 53-A of the Act is also not available to the defendant for the reason that the present is not a case where on execution of the agreement she was put to possession of the land before the execution of the sale deed and the land ultimately was sold to someone else. The present rather is a case where the agreement Ext. DW-6/A is never acted upon and to the contrary the plaintiff has sold land measuring 4-14 bighas to the defendant and the possession was also delivered to her. Therefore, the plea that her possession over the suit land is protected under Section 53A of the Act is not available to her. 13. An application under Order 41 Rule 27 of the Code of Civil Procedure (CMP No. 795 of 2004) has also been filed and listed for consideration alongwith the appeal. The appellant/defendant has sought to produce by way of leading additional evidence the copy of Jamabandi for the year 1986 to show that she was recorded in possession of the suit land. The evidence sought to be produced is not required for deciding the fate of this appeal for the reason that there is no dispute qua the defendant having entered in possession of the suit land, rather it is the own case of the plaintiff that she had managed the entries in the revenue record during the recent settlement and on the basis thereof started causing interference over the suit land. Above all, the entries in the revenue record by way of copy of Missal Hakiat Bandobast Jadid, Ext. PW-1/C, having come on record show that the defendant has been recorded in possession of the suit land, but such entries as per plaintiff's case have been managed by her. Above all, the entries in the revenue record by way of copy of Missal Hakiat Bandobast Jadid, Ext. PW-1/C, having come on record show that the defendant has been recorded in possession of the suit land, but such entries as per plaintiff's case have been managed by her. Therefore, there being no merit in the application, the same is dismissed. 14. The reappraisal of the evidence available on record and also the law applicable lead to the only conclusion that both Courts below have rightly passed the decree for possession of the suit land by way of demolition of the structure raised by the defendant over the same. Therefore, no legal question muchless to speak of substantial question of law arises in this appeal warranting interference with the judgment and decree under challenge. The judgment and decree under challenge rather being legally and factually sustainable, deserves to be upheld. The question of law as formulated is answered accordingly. 15. In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed. No order so as to costs.