Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 694 (HP)

J. P. Chatrath v. Khem Chand Chauhan

2015-06-15

TARLOK SINGH CHAUHAN

body2015
Judgment : Tarlok Singh Chauhan, J. Both these revision petitions arise out of common order dated 5.5.2003 whereby the learned Court below dismissed the application filed by the petitioner/plaintiff under Order 1 Rule 10 C.P.C. giving rise to Civil Revision No. 194 of 2003 and simultaneously dismissed another application preferred by the petitioner under Order 6 Rule 17 CPC giving rise to Civil Revision No. 195 of 2003. 2. The plaintiff filed a suit for declaration that he is owner in possession of the suit land comprised in Khasra Nos. 1698/399 and 1687/362 after having purchased the same from Smt. Parkashwati. He further claimed that he is in adverse possession of an area measuring 22 sq. metres which is adjoining the aforesaid land and comprised in Khasra No. 395/1. 3. The learned trial Court decreed the suit partly to the extent that the plaintiff was declared as owner in possession of the land purchased by him i.e. Khasra Nos. 1698/399 measuring 75 sq. metres and Khasra No. 1687/362 measuring 206 sq. metres. Insofar as the claim regarding adjoining land of 22 sq. metres as comprised in Khasra No. 395/1 is concerned, the same was dismissed. 4. In the application filed under Order 1 Rule 10 CPC, being Civil Misc. Application No. 25 of 2003, it was averred that the sales made in favour of respondents No. 2 and 3 were made through an attorney of a dead person and in Civil Suit No. 222/1 of 93 titled ‘Avinash Chand vs. Khema Ram’ decided on 26.9.1993, the sale deeds had been declared to be null and void. This fact came to the knowledge of the plaintiff during the pendency of the suit. Since the sale deeds in favour of respondents/ defendants No. 2 and 3 were declared null and void, they are not owners of the suit land and as the land now belongs to respondents No.4 to 9, they are required to be impleaded as respondents. The land referred to in this application is the one comprised in Khasra No. 395/1 i.e. land over which the plaintiff is claiming adverse possession. 5. The land referred to in this application is the one comprised in Khasra No. 395/1 i.e. land over which the plaintiff is claiming adverse possession. 5. Simultaneously, the plaintiff moved another application under Order 6 Rule 17 CPC for amendment of the plaint whereby he intended to add para 14-A, which reads thus: “That Khasra No. 395 was transferred in the name defendants as claimed by them as Khasra No. 2386/395 measuring 150 square metres, 2387/395 measuring 22 square metres in the name of Smt. Madhu Thapa and 2388/395 measuring 154 sq.metres in the name of Khevan Ram per separate Tarteemas as carved out per old sale deeds declared as null and void as judgment dated 16.9.1993 in case No. 222/93 and which registered sale deeds are in possession of the defendants and said Tarteema will displayed further in mutation No. 1132 dated 29.12.1993 and the sale deeds dated 13.1.1994 wherein the plaintiff was not a party and in the said suit even the possession of the plaintiff qua the land in suit was not mentioned and no demarcation with respect to the said tarteema was ever got effective except the demarcation whereby 22 sq. metres was found in possession of plaintiff as Khasra No. 395/1 and which was never challenged and had become final and possession of which land since the date of purchase dated 4.12.1975 to 13.1.1994 etc. and till today is open, continuous and is as of site as owner and within the knowledge of owner Smt. Prakashwati as per successors Shri Vipin Chand, Avinash Chand and others being under fixed boundaries covered from all sides and the said possession as such having ripened into ownership, the defendants has no right, title and interest in the same. The possession at the spot of the said land was defined on 4.12.1975 at the time of registration of sale deed where the same was purchased from Smt. Prakashwati and whereby the construction was raised on the said land measuring 28 sq. meters and which presently had been found to be in excess by 22 sq. meters. The possession at the spot of the said land was defined on 4.12.1975 at the time of registration of sale deed where the same was purchased from Smt. Prakashwati and whereby the construction was raised on the said land measuring 28 sq. meters and which presently had been found to be in excess by 22 sq. meters. That the said possession been within the forwall and fencing and in actual physical possession of the plaintiff, the defendants are estopped to challenge the same and Smt. Parkashwati till her death in January, 1990 and from 4.12.1975 onwards had never challenged the same and had always treated plaintiff to be owner in possession of said land where the residential house was constructed by the plaintiff as per approved municipal plan and thus the defendants are estopped by their acts, conduct and deeds to challenge this position and have waved their right wavier comes into play on the part of the defendants. They are estopped and the plaintiff is entitled to be declared as owner on the said land. The defendants as such are liable to be restrained from interfering in the said land and from claiming and asserting any rights therein.” 6. Now, a perusal of the proposed amendment would show that the same is again confined to Khasra No. 395/1 over which the plaintiff is claiming adverse possession. 7. As observed earlier, both these applications were dismissed by the learned Court below and the said order has been assailed by way of present revision petitions. 8. Learned counsel for the petitioner has relied upon the judgments of the Hon’ble Supreme Court in Steel Authority of India Limited vs. Gupta Brother Steel Tubes Limited (2009) 10 SCC 63 and Abdul Rehman and another vs. Mohd. Ruldu and others (2012) 11 SCC 341 to contend that the amendment can be allowed at any stage. He has further relied upon the judgments of the Hon’ble Supreme Court in Amit Kumar Shaw and another vs. Farida Khatoon and another (2005) 11 SCC 403 and Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited and others (2013) 5 SCC 397 to contend that transferee pendente lite ought to be impleaded as a party. 9. He has further relied upon the judgments of the Hon’ble Supreme Court in Amit Kumar Shaw and another vs. Farida Khatoon and another (2005) 11 SCC 403 and Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited and others (2013) 5 SCC 397 to contend that transferee pendente lite ought to be impleaded as a party. 9. While on the other hand, learned counsel for the respondents has placed reliance upon the judgments of the Hon’ble Supreme Court in Salem Advocate Bar Association, Tamil Nadu vs. Union of India, AIR 2005 SC 3353 , State of Madhya Pradesh vs. Union of India and another (2011) 12 SCC 268 , J. Samuel and others vs. Gattu Mahesh and others (2012) 2 SCC 300 and S.Malla Reddy vs. Future Builders Cooperative Housing Society and Others (2013) 9 SCC 349 to contend that even Order 6 Rule 17 now provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. He has further contended that the application filed under Order 1 Rule 10 CPC is not only gross abuse of the process of law but has been filed only with the intention to delay the matter. 10. I have given my thoughtful consideration to the rival submission of learned counsel for the parties and find that neither of the applications i.e. application under Order 6 Rule 17 CPC nor the application under Order 1 Rule 10 CPC are maintainable in view of the fact that the plea of adverse possession itself is not available to the plaintiff because a suit for declaration on the basis of adverse possession cannot be maintained as this claim can only be agitated by way of defence and can only be used as a ‘shield’ and not a ‘sword’ in terms of the judgment of the Hon’ble Supreme Court in Gurdwara Sahib versus Gram Panchayat Village Sirthala and another (2014) 1 SCC 669 wherein it was held as under: “8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.” 11. Once the suit itself is not maintainable then these applications seeking impleadment and amendment automatically become redundant. Consequently, both revision petitions are dismissed with costs assessed at Rs.20,000/- each. 12. The plaintiff/petitioner has been successful in dragging on this litigation for nearly two and half decades and, therefore, it is high time that the matter is concluded at the earliest. Accordingly, the learned Court below is requested to decide the case at the earliest and in no event later than 30th September, 2015. 13. The parties through their counsel are directed to appear before the Court below on 25.6.2015. The Registry is directed to transmit the records of the case forthwith to the Court below so as to reach well before the date fixed. Both these revisions are disposed of in the aforesaid terms, so also the pending application(s), if any.