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2015 DIGILAW 560 (HP)

Kehar Singh v. Ramesh Chand (dead)

2015-05-21

SANJAY KAROL

body2015
Sanjay Karol, J. Defendants-appellants Kehar Singh and Simro Devi have filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 5.12.2003, passed by the learned Additional District Judge (2), Kangra at Dharamshala, in Civil Appeal No.57-P/2000, titled as Kehar Singh and another v. Ramesh Chand, whereby judgment and decree dated 24.2.2000, passed by the Sub Judge 1st Class, Court No.2, Palampur, Himachal Pradesh, in Civil Suit No.257/97, titled as Ramesh Chand v. Kehar Singh and another, stands affirmed. 2. Plaintiff Ramesh Chand (now deceased and represented through LRs) sold part of his land to defendant Kehar Singh and his wife. Alleging interference from the defendants, with respect to the remaining land, so owned and possessed by him, plaintiff filed a suit for permanent prohibitory injunction. The suit was resisted by the defendants, pleading the land to be the one so mentioned and sold in terms of the sale deed. 3. Vide judgment and decree dated 7.8.1997 (Ex.PY), passed in an earlier suit, trial Court, finding the defendants to be in possession of the suit land, dismissed the suit, reserving right to the plaintiff to recover possession in accordance with law. Significantly, the defendants were held to be in possession, without any right, title or interest. 4. Pursuant to passing of the aforesaid judgment and decree, on 16.10.1997, plaintiff filed suit for possession of the land, subject matter of earlier suit, also claiming damages for unauthorized use and occupation. Defendants pleaded ownership, justifying their possession on the basis of sale deed. 5. Based on the pleadings of the parties, trial Court framed the following issues: 1. Whether the plaintiff is entitled for the decree of possession of suit land, as prayed for? OPP 2. Whether the plaintiff is entitled for the damages to the sum of Rs.1000/- as prayed for? OPP 3. Whether the plaintiff is estopped by his act and conduct from filing the suit? OPD 4. Whether the suit is not within time? OPD 5. Whether the defendant No.1 has become owner of the suit land by way of adverse possession? OPD 6. Whether the plaintiff has no cause of action? OPD 7. Relief. 6. OPP 3. Whether the plaintiff is estopped by his act and conduct from filing the suit? OPD 4. Whether the suit is not within time? OPD 5. Whether the defendant No.1 has become owner of the suit land by way of adverse possession? OPD 6. Whether the plaintiff has no cause of action? OPD 7. Relief. 6. Trial Court decreed the suit in the following terms: ”In view of the findings on aforesaid issues, the suit of the plaintiff is decreed partly to the effect that plain tiff is entitled for the relief of possession of land of khata No.4, khatoni NO.4, khasra No.269, measuring 0-37-01 Hects. And khata No.3 min, khatoni No.3 Min, khasra No.258 land measuring 0-04-16 Hects. Situated at Mohal Panapar Kholi, Mauza Panapar, Sub Teh. Bheera, Tehsil Palampur, Distt. Kangar (H.P.) and suit for damages/ compensation is dismissed. The parties are left to bear their own costs. Decree Sheet be drawn accordingly. The file after its due completion be consigned to record room.” 7. Findings of fact, judgment and decree, so passed by the trial Court, stand affirmed by the lower appellate Court. 8. Present appeal stands admitted on the following substantial questions of law: 1. Whether learned Additional District Judge, being the final court of fact, erred in ignoring the report of local commissioner appointed with the consent of the parties during the pendency of the first appeal especially when no objection to the report was filed on record by either party? 2. Whether defendant No.1 being a bonafide purchaser of the land for consideration is not entitled to possession of suit land in spite of the fact that on the identification of the plaintiff, he continues to be in possession of the land since the date of its purchase in the year, 1984 and has also carried out substantial improvements over the same since thereafter? 9. Having heard learned counsel for the parties, I am of the considered view that no case for interference is made out. 10. It cannot be disputed that the subject matter of both the suits is same and similar. In the judgment and decree passed in the earlier suit, which undisputedly has attained finality, there are findings of the defendants being in unauthorized occupation over the suit land. Plea of having perfected title by way of adverse possession stood repelled by the trial Court. In the judgment and decree passed in the earlier suit, which undisputedly has attained finality, there are findings of the defendants being in unauthorized occupation over the suit land. Plea of having perfected title by way of adverse possession stood repelled by the trial Court. Findings with regard to Issue No.7, so framed therein, were never assailed by the defendants. In this view of the matter, report of the Local Commissioner, who was also not examined before the lower appellate Court, pales into insignificance. 11. Trial Court, even in the present proceedings, has decided Issue No.5, pertaining to the title so perfected by way of adverse possession, against the defendants. 12. Plea taken by the defendants is in fact contradictory. They cannot be allowed to blow hot and cold, in the same breath. They can either plead and claim ownership on the strength of sale deed or adverse possession. Any which way, findings returned by the Courts below, which are based on complete, careful and correct appreciation of the evidence, cannot be said to be erroneous or perverse. 13. It is not the defendants’ case that pursuant to sale deed, so executed in their favour, they were never put in possession of any land. In the first suit, plaintiff pleaded interference on the part of the defendants and sought injunction. Only when the Court found the defendants to be in an unauthorized possession, liberty was reserved to the plaintiff to take recourse to appropriate remedy, in accordance with law. Defendants did not file any counterclaim or initiate any proceedings against the plaintiff. 14. Significantly, defendants have not placed on record or proved the sale deed, exhibiting the land sold to them. On the contrary, in Court, in his cross-examination, defendant No.1 admits that land comprising Khasra Numbers (269 and 258), subject matter of the suits, was never sold to him. All that he states is that the plaintiff had handed over these very khasra numbers to him. In view of a specific finding to the contrary, in the earlier suit, stand taken by the defendants is not factually correct, just, proper or legally sustainable. 15. The Apex Court in Deity Pattabhiramaswamy v. S. Hanymayya and others, AIR 1959 SC 57 , has deprecated the practice, so adopted by the High Courts indisposing of second appeals as if they were to be decided as first appeals. 16. 15. The Apex Court in Deity Pattabhiramaswamy v. S. Hanymayya and others, AIR 1959 SC 57 , has deprecated the practice, so adopted by the High Courts indisposing of second appeals as if they were to be decided as first appeals. 16. Contention, so raised by Mr. Ashwani Sharma, learned counsel for the appellant, that the appeal be decided, by balancing the equities, only needs to be repelled, in view of clear mandate of the Hon’ble Supreme Court of India, in Madamanchi Ramappa and another v. Muthaluru Bojjappa, AIR 1963 SC 1633 , wherein it is held as under: “Where the Supreme Court is satisfied that in dealing with a second appeal the High Court has either unwillingly and in a casual manner or deliberately contravened the limits prescribed by S. 100 Civil P.C., by interfering with concurrent findings on simple questions of fact on ground of insufficiency of evidence, it becomes the duty of the Supreme Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the expression provisions of S. 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.” 17. As such, it cannot be held that findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. Substantial questions of law are answered accordingly. For all the aforesaid reasons, the appeal is dismissed and disposed of, so also the pending application(s), if any.