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2015 DIGILAW 588 (HP)

Sunehru Devi (Now deceased) v. Pohlo Ram

2015-05-25

SURESHWAR THAKUR

body2015
Judgment Sureshwar Thakur, J. 1. The instant appeal is directed against the judgment and decree, rendered on 4.6.2002, in Civil Appeal No. 125 of 1995 by the learned District Judge, Bilaspur, H.P., whereby, the learned First Appellate Court had partly allowed the appeal filed by the appellant/plaintiff whereby the suit for permanent injunction seeking to restrain the defendants from interfering in the suit land till such time he is evicted in due course was decreed. However, the plaintiff’s suit for the alternative relief of possession and for declaration was dismissed. 2. The facts giving rise to the present case are that the plaintiff had filed a suit for permanent prohibitory injunction and also in the alternative for possession with the averments that the plaintiff is in possession of the land measuring 2 biswas comprised in Khasra No. 118 min, Khewat Khatoni No. 5/8 situated in village Bhatoli, Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P. as Gair Morusee (non occupancy tenant). The plaintiff has constructed the work shed ‘Reniali’ for the work of Iron smith over the suit land. On 19.6.1989 the defendant No.1 forcibly came into the suit land and dismantled the walls of the workshop and also thrown the material which was kept over the suit land. 3. Written statement-cum-counter claim filed on behalf of the defendants. The preliminary objection of maintainability, misjoinder and non joinder of necessary parties, locus standi, estoppel and cause of action were taken. On merits, it is stated that the defendants are in possession of the suit land and they are recorded owners of the suit land. The entries showing the plaintiff as Gair Maurusee (Bila Lagan Babaja Khidmat Pessa) over the suit land are wrong, illegal and contrary to the spot. By way of counter claim, it is contended that the defendants are owners in possession of the suit land and the revenue entries showing the plaintiff as non occupancy tenant over the suit land are totally wrong. It is alleged that the plaintiff has got these wrong entries incorporated in his name in the revenue record in connivance with the revenue staff. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is in possession of the suit land as non occupancy tenants? OPP. 2. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is in possession of the suit land as non occupancy tenants? OPP. 2. Whether the defendants are interfering in the possession of the plaintiff over the suit land? OPP. 3. Whether the plaintiff is entitled to the possession of the suit land if dispossessed from the suit land during the pendency of the suit by dismantling the construction? OPP. 4. Whether the plaintiff has no locus standi to file the present suit, as alleged, OPD. 5. Whether the plaintiff is estopped to file the present suit by his own acts, conducts, omissions and commissions? OPD. 6. Whether the suit is not properly valued? OPD. 7. Whether the plaintiff has no cause of action? OPD. 8. Whether the defendants are in possession of the suit land, as alleged? OPD. 9. A. Whether the plaintiff has become owner of the suit land by way of adverse possession? OPP. B. Whether the defendants are owners in possession of the suit land, as alleged? OPD. 10. Whether the defendants are entitled to a decree of declaration? OPD. 11. Relief. 5. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court had dismissed the suit of the plaintiff and the learned District Judge, Bilaspur, had partly allowed the appeal. 6. Now the defendants/appellants have instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court, in, its impugned judgment and decree. When the appeal came up for admission on 29.11.2002, this Court, admitted the appeal on, the hereinafter extracted substantial questions of law:- 1. Whether a party can be permitted to take two diametrically opposite and inconsistent stands and claim to be tenant on one hand and also be allowed to plead that the said part has become owner by way of adverse possession? 2. Whether a suit for permanent injunction can be filed by a party against the true owner when it is not in possession of the land? Substantial questions of law No. 1 and 2. 7. The plaintiff had constructed a work shed (Raniali) on the suit land for carrying therein the avocation of an iron smith. The aforesaid ‘Reniali’ raised by the plaintiff over the suit land stood dismantled by defendant No.1 on 19.6.1989. Substantial questions of law No. 1 and 2. 7. The plaintiff had constructed a work shed (Raniali) on the suit land for carrying therein the avocation of an iron smith. The aforesaid ‘Reniali’ raised by the plaintiff over the suit land stood dismantled by defendant No.1 on 19.6.1989. The plaintiff has claimed a decree for permanent injunction restraining the defendant from interfering over/upon the suit land, in any manner. Besides a decree is claimed against the defendants qua theirs being directed to restore the possession of the suit land to him in the event of his during the pendency of the suit being dispossessed by the defendants. The core relief claimed or asserted by the plaintiff against the defendants was hence primarily of a decree of permanent prohibitory injunction restraining the defendants from interfering in the suit land, besides in the alternative a decree for possession of the suit land in case during the pendency of the suit the plaintiff stands dispossessed by the defendants. Therefore, the graveman of the controversy is anvilled upon the apposite pleadings and apt evidentiary facts unearthing the factum whether the plaintiff has been able to establish the factum of his being in possession of the suit land, for his then being entitled to a decree for injunction besides his having proved the factum of his having been dispossessed from the suit land during the pendency of the suit by an act of the defendants so as to claim the relief or a decree of possession of the suit land. Obviously, for a decree of injunction being rendered in favour of the plaintiff, the indispensable tenet to be satiated by evidence, is of the plaintiff being in settled possession of the suit land. Besides, for an alternative decree of possession being renderable in favour of the plaintiff, the plaintiff was enjoined to establish that viz-a-viz the defendants he has a superior and better title to the suit land hence even if he stands dispossessed from the suit land, he has a right to reclaim or recover its possession. Besides, for an alternative decree of possession being renderable in favour of the plaintiff, the plaintiff was enjoined to establish that viz-a-viz the defendants he has a superior and better title to the suit land hence even if he stands dispossessed from the suit land, he has a right to reclaim or recover its possession. The factum of the plaintiff being not in possession of the suit land is borne out by an admission of the plaintiff comprised in his examination in chief wherein he has deposed that the defendants dismantled his ‘Raniali’ besides there is another admission in his cross-examination, of the Reniali/workshop, wherein he performed his avocation as an iron smith, no longer existing at the site, rather it having been dismantled five years prior to the recording of his deposition, on oath. In aftermath, the admissions aforesaid forcefully convey the fact of no ‘Reniali’ or workshop wherein the plaintiff performed his avocation as an iron smith existing at the site. Besides, there is a revelation in Ext.PA, which is an order imposing fine upon the defendant Sunehru Devi by the Gram Panchayat concerned on its receiving a complaint from the plaintiff attributing therein an inculpatory act to the defendant-Sunehru Devi comprised in hers dismantling the ‘Reniali’ of the plaintiff existing on the suit property, of hence the defendant Sunehru Devi having been fined for hers having committed an offence under Section 427 of the IPC. However, there is no portrayal therein of the defendant Sunehru Devi having been ordered to restore the possession of the suit land to the plaintiff. Nor there is any evidence adduced by the plaintiff that his possession of the suit land comprised in the existence of an iron shed thereon, which stands dismantled, having been reclaimed by him by his reoccupying the suit land hence warranting this Court to render a decree of injunction, as prayed for. Consequently, when there is abysmal want of evidence, rather when the aforesaid evidence is communicative of the plaintiff by his omitting to reclaim it or his having not reclaimed it, hence his having abandoned possession over the suit land, the refusal by the learned trial Court of a decree of injunction in favour of the plaintiff was legally apt as well as tenable. The first Appellate Court while reversing the decree of the learned trial Court whereby the latter Court dismissed the suit of the plaintiff appears to have formed a conclusion qua the fact of the plaintiff being in possession of the suit land merely on conjectures and surmises, besides on the mere existence of a stray suggestion having been put to PW-2 during his cross-examination by the defendants connoting the factum of acquiescence of the defendants to the permissive possession of the plaintiff over the suit land. The conclusions aforesaid arrived at, by the learned First Appellate Court on mere conjectures and surmises qua the possession of the plaintiff stand to be discountenanced more especially when the said conclusion warrants its being dislodged/displaced, by the existence of potent admissions in the deposition of the plaintiff besides other material as referred to hereinabove, portraying the fact of the plaintiff being extantly not in possession of the suit land, hence when the factum of proven possession over/upon the suit land of the plaintiff would alone entitle him to a decree of permanent prohibitory injunction, its want, necessitated its refusal as tenably done by the learned trial Court and which decree has been untenably accorded by the learned First Appellate Court. 8. The claim of the plaintiff to recover possession of the suit land necessitated adduction of apposite potent evidence and its also carrying probative sinew besides its manifesting the fact that even if he stood dispossessed from the suit land, he had a right to reclaim its possession from the defendants, as he had acquired title to it by adverse possession, as averred in the plaint. Besides a decree for possession was renderable in his favour, in the event of the factum recorded in the apposite jamabandies displaying him to be a gair marusee tenant qua the suit land, enjoying sanctity, as such, empowering him to assert acquisition of title thereon by operation of law. However, the learned trial Court had dispelled the factum of the plaintiff having lent or adduced strong and potent proof qua his having become owner of the suit land by adverse possession. However, the learned trial Court had dispelled the factum of the plaintiff having lent or adduced strong and potent proof qua his having become owner of the suit land by adverse possession. The pre dominant reason which prevailed upon the learned trial Court for dispelling the factum of the plaintiff having proven the predominant factum of his having become owner of the suit land by adverse possession was harbored upon omission of a communication in his deposition with precision qua the commencement of his possession over the suit land with an animus possidendi, comprised in his act of his having constructed a work shop thereupon. Omission of a communication with precision qua the exact time of his having commenced possession of the suit land with the requisite animus possidendi gives latitude to the inference that his deposition is nebulous, shaky and infirm for fostering thereupon an apt conclusion qua the precise time when he entered possession upon the suit land with an animus possidendi so as to, as a corollary reckon therefrom the elapse of the statutorily ordained period of time for rendering him capacitated to be construable to be owner thereof by prescription. 9. The learned trial Court had struck an issue qua the factum of the validity of entries in the revenue record depicting the plaintiff as a gair marusee tenant. The findings returned on the said issue by the learned trial Court were against the plaintiff. The plaintiff had asserted acquisition of title to the suit land by way of adverse possession, as also with his being, in the apposite revenue entries qua the suit land comprised in Ext.P-1, P-2, P-4, P-6 and Ext.P-7 displayed therein to be a non occupancy tenant qua the suit land, rendered him empowered to foist a claim qua his having become owner of the suit land by operation of law. 10. Significantly, the tenacity of the revenue entries of the aforesaid apart, his plea of his having become owner of the suit land on the strength of the revenue entries personifying him and depicting him to be a gair marusee tenant under the defendants/landowners rendering him legally fit to claim vestment of title by operation of law and the alternative plea of his having become owner of the suit land by way of adverse possession, are mutually antithetical besides inconsistent pleas. Both erode and whittle down the effect of the other. Both erode and whittle down the effect of the other. Predominantly, the factum of occurrence of an entry in the relevant revenue record displaying the plaintiff to be a gair marusee tenant qua the suit land under the land owners, whereupon he anvilled a claim of his having become its owner by operation of law, is necessarily built upon a bilateral contract inter se the landlords and the tenant or the entries aforesaid pre suppose the germination of or coming into existence of a valid relationship of landlord and tenant interse the contesting parties. While canvassing the said plea there is an apparent acquiescence by the plaintiff, of the defendants landlords being the owners of the suit land and his possession under them being in his capacity as a tenant. However, he in derogation to his admitted and accepted status as a tenant under the defendants landlords qua the suit land has proceeded to assert his having acquired title over/upon the suit land by way of prescription arising from efflux of time. Obviously, then he erodes the effect of besides benumbs the effect of the entries in the revenue record portraying him to be a gair marusee tenant qua the suit property under the defendants/landlords. 11. Also concomitantly he while canvassing an assertion of his having acquired title to the suit land by way of adverse possession afflicts it with the malady of its starkly contradicting his primarily plea of his while being recorded as a gair marusee tenant qua the suit land under the defendants/landlords, its ownership stands by operation of law vested in his favour. Both pleas being mutually destructive erode and whittle down the effect of the other. They render the plaintiff incapacitated and disempowered to sustain and establish each of the alternative yet mutually destructive and erosive pleas. Both pleas being mutually destructive erode and whittle down the effect of the other. They render the plaintiff incapacitated and disempowered to sustain and establish each of the alternative yet mutually destructive and erosive pleas. Apart therefrom, dehors the plaintiff having canvassed mutually destructive pleas which mutually emasculate each other, the factum of existence of entries in the jamabandis apposite to the suit land connoting the plaintiff to be a gair marusee tenant over the suit land under the defendants land owners, too would gain succor and would attract truth only in the event of it having been established by cogent evidence that the entries in Ext.P-1, P- 2, P-4, P-6 and Ext.P-7 aforesaid in succession to the reflection in Ext.P-5 wherein the predecessor-in-interest of the defendants is recorded owner in possession of the suit land stood incorporated in substitution to the preceding entries comprised in Ext.P-5, only in pursuance to orders rendered by the competent revenue authorities. 12. However, in the face of no evidence having been adduced qua orders having been rendered by the competent revenue authority for effectuating substitution of entries in Ext.P-5 by entries in Ext.P-1, P-2, P-4, P-6 and Ext.P-7, renders the entries in the Jamabandies prepared subsequent to Ext.P-5 to be hence recorded or incorporated without the authority of law and as such construable to be nonest. Consequently, the presumption of truth hence attracted or enjoyed by revenue entries comprised in Ext.P-1, P-2, P-4, P-6 and Ext.P-7 displaying the plaintiff to be gair marusee tenant over the suit land stands whittled down. In sequel, there is no right in the plaintiff to canvass that his being recorded as a gair marusee tenant therein he has a right in law to claim or assert vestment of title in the suit land in him by operation of law. Moreover, there is no evidence portraying the factum of the entries comprised in Ext.P-1, P-2, P-4, P-6 and Ext.P-7 having been preceded by rendition of an order for attesting mutation in favour of the plaintiff as a gair marusee tenant qua the suit land. Absence of the above evidence not only dispels the factum portrayed therein of the plaintiff being a gair marusee tenant qua the suit land under the defendants/land owners, besides efficaciously rebuts the truth, if any, carried by them. 13. Absence of the above evidence not only dispels the factum portrayed therein of the plaintiff being a gair marusee tenant qua the suit land under the defendants/land owners, besides efficaciously rebuts the truth, if any, carried by them. 13. In sequel, the entries in Ext.P-1, P-2, P-4, P-6 and Ext.P-7 then hold no force, also Ext.P-3 which is a Roznamcha Bakiati prepared by the halqa Patwari, which is also not demonstrated to be founded upon an order of the revenue authority nor has been demonstrated to be preceded by a detailed inquiry in which the defendants also participated hence rendering its recitals while being unilaterally incorporated therein in infraction of the principles of natural justice, to be hence nonest and void. In aftermath, even when the plaintiff has been unable to establish the factum of the revenue entries depicting him to be a gair marusee tenant qua the suit land under the defendants to be acquiring any truth of veracity, rather the presumption attracted/attached thereto for the reasons aforesaid facing rebuttal, as such, he is incapacitated to either claim the factum of his being a gair marusee tenant under the defendants qua the suit land, besides he is disempowered to claim vestment of title in him qua the suit land by statutory operation. Naturally then when he has been unable to establish title to the suit land as also when he stands dispossessed from the suit land, he cannot claim a decree for possession qua the suit land. The learned First Appellate Court while, overcoming the effect of the admission in the testimony of the plaintiff personifying the factum of his being no longer in possession of the suit land and thereupon having reversed the judgment and decree of the learned trial Court, comprised in it having relied upon a mere stray suggestion having been put to PW-2 conveying the factum of acquiescence of the defendants to the permissive possession of the plaintiff over the suit land has committed a grave illegality. Obviously then it has proceeded to untenably render a decree of injunction in favour of the plaintiff by imputing unnecessary leverage to the aforesaid factum whereas for reasons assigned hereinabove its effect does stand wholly benumbed and smothered. Obviously then it has proceeded to untenably render a decree of injunction in favour of the plaintiff by imputing unnecessary leverage to the aforesaid factum whereas for reasons assigned hereinabove its effect does stand wholly benumbed and smothered. Besides, the aforesaid discussion unfolds the factum of not only the plaintiff being not entitled to the decree of injunction in the face of his being unable to establish the factum of his being in possession of the suit land the preeminent sine qua non for rendition of a decree of injunction in his favour. Moreover, in the face of his having not established the factum of his having no lawful title to the suit land for entitling him to claim recovery or restoration of the possession of the suit land, rather with it having been forcefully established that the entry in Ext.P-5 while having been substituted by unwarranted entries in the subsequent jamabandies holds the field, wholly dis-empowers him to also claim possession as well as ownership of the suit land. Now with Ext.P-5 reflecting the predecessor in interest of the defendants as owner they hence stand entitled to the suit land. The judgment and decree of the learned trial Court is maintained and affirmed and the judgment of the learned First Appellate Court is set-aside. Consequently, the suit of the plaintiff is dismissed and the substantial questions of law are answered in favour of the defendants/appellants. Records be sent back forthwith. No costs.