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2016 DIGILAW 181 (HP)

Mastu Devi v. Chet Ram

2016-03-03

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Plaintiffs are in second appeal before this Court. They are aggrieved by the judgment and decree dated 5.9.2002, passed by learned District Judge, Mandi, in Civil Appeal No.21 of 2000. Learned District Judge on reversal of the judgment and decree passed by learned Sub Judge, 1st Class, Court No.1, Mandi, in Civil Suit No.323/1996, has allowed the appeal and did not incline to grant the declaration that the plaintiffs are owners in possession of the suit land and also that the entries in the revenue record showing the respondents, hereinafter referred to as ‘the defendants’, as co-owners in possession thereof are wrong and illegal, hence not binding upon them. The suit as such was dismissed. The plaintiffs were also not held entitled to the decree for injunction against the defendants. 2 The subject matter of dispute in the present lis is land entered in Khewat No.49, Khatauni No.85, Khasra Nos. 699, 705, 711, 707, 715, 716, 724, 726, 730, 737, 743, 747, 782, 787, 790, 792, 794, 797, 800, 805, 809, 804, 814, 816, 819, 821, 823, 825, 827, 830, 836, 838, 840, 841, 843, 848, 852, 875, 884, Kitas 39, measuring 15-1-18 Bighas and land entered in Khewat No.49, Khatauni No.87 min, Khasra No. 822, measuring 0-8-19 Bighas, situate in village Tikkri, Hadbast No.40, Illaqua Movi Seri, Tehsil Chachiot, District Mandi. 3. The plaintiffs claim themselves to be exclusive owners in possession of the suit land. The entries in the Jamabandi for the year 1991-92 Ext.PA, have been relied upon to substantiate this part of their case. The case of the plaintiffs is that they are in exclusive, open, peaceful, continuous, hostile, uninterrupted and notorious possession of the suit land since October, 1982 to the knowledge and notice of the defendants and their predecessors-in interest. Therefore, while pleading complete ouster of the defendants from the suit land, it has been claimed that they have acquired title therein by way of adverse possession. The entries in the Jamabandi for the year 1995-96 Exts. DW1/A to Ext.DW1/G, showing the defendants to be co-owners in possession of the suit land are stated to be wrong illegal, hence null and void. According to plaintiffs, the defendants taking undue advantage of such entries in the revenue record have started causing interference in the suit land. The entries in the Jamabandi for the year 1995-96 Exts. DW1/A to Ext.DW1/G, showing the defendants to be co-owners in possession of the suit land are stated to be wrong illegal, hence null and void. According to plaintiffs, the defendants taking undue advantage of such entries in the revenue record have started causing interference in the suit land. Hence, the suit for declaration to the effect that the plaintiffs have acquired title in the suit land by way of adverse possession and as such have now become absolute owners thereof. The entries to the contrary in the revenue record are wrong, illegal, incorrect and void ab initio. Additionally, a decree for permanent prohibitory injunction, restraining the defendants from causing interference with the peaceful possession of the plaintiffs over the suit land has also been sought. 4. The defendants, in preliminary, have raised objections qua jurisdiction of the Civil Court to try and entertain the suit, maintainability thereof and that the plaintiffs have no enforceable cause of action and locus-standi to file the suit. On merits, it is denied that the plaintiffs are exclusive owners in possession of the suit land since October, 1982. It is submitted that since the suit land was in possession of the plaintiffs in the capacity of co-sharers, therefore, their possession over the same was on behalf of each and every co-sharer. Now, on partition during the consolidation operation carried out in the area, where the suit land is situated, each and every cosharer has been given the possession of land allotted to him in partition. The entries in the revenue record showing the plaintiffs and defendants as joint owners of the suit land are correct, hence need not be changed. The suit has, therefore, been sought to be dismissed. 5. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiffs have become absolute owners of the suit land by virtue of adverse possession, as alleged? OPP. 2. If issue No.1 is proved, whether revenue entries contrary to this fact are liable to be corrected? OPP. 3. Whether the plaintiffs are entitled to the relief of injunction, as prayed for? OPP. 4. Whether this Court has no jurisdiction to entertain and try the suit? OPD. 5. Whether the suit is not legally competent and maintainable? OPD. 6. Whether the plaintiffs have no locusstandi to file the present suit? OPD. 7. OPP. 3. Whether the plaintiffs are entitled to the relief of injunction, as prayed for? OPP. 4. Whether this Court has no jurisdiction to entertain and try the suit? OPD. 5. Whether the suit is not legally competent and maintainable? OPD. 6. Whether the plaintiffs have no locusstandi to file the present suit? OPD. 7. Whether the plaintiffs have no enforceable cause of action to file the present suit? OPD. 8. Relief.” 6. The plaintiffs in order to prove their case have examined PW-2 Khima Ram. One of the plaintiffs, Shri Lal Chand, the legal representative of deceased plaintiff No.1Almu has also stepped into the witness box as PW-1. On behalf of the plaintiffs, copy of Khatauni Istemal for the year 1991-92 Ext.PA and copy of Jamabandi for the year 1983-84 Ext.PB were also relied upon. 7. The defendants, on the other hand, have also examined one Shri Devi Ram DW-2. Defendant No.3 Shri Mohar Singh has also stepped into the witness box as DW-1. Besides, reliance on their behalf has been placed on the copy of Jamabandi for the year 1995-96 Exts. DW1/A to Ext.DW1/G. 8. Learned trial Court on appreciation of the evidence, while answering issues No.1 to 3 in favour of the plaintiffs, has concluded that the plaintiffs have become absolute owners of the suit land by way of adverse possession. While holding that the Civil Court has jurisdiction to entertain and try the suit and that the plaintiffs have enforceable cause of action and locus-standi to file the suit, issues No. 4 to 7 were answered against the defendants. Therefore, in view of findings on issues No.1 to 3, the suit was decreed not only for the relief of declaration as sought, but injunction also. 9. The defendants aggrieved by the judgment and decree passed by learned trial Court, however, filed an appeal in the Court of learned District Judge, Mandi. Learned lower appellate Court on re-appraisal of the evidence available on record and also the given facts and circumstances of the case, has accepted the appeal and dismissed the suit as pointed out at the very outset. 10. Learned lower appellate Court on re-appraisal of the evidence available on record and also the given facts and circumstances of the case, has accepted the appeal and dismissed the suit as pointed out at the very outset. 10. It is the judgment and decree so passed by learned District Judge under challenge before this Court in the present appeal, on the grounds, inter alia, that the evidence produced by the plaintiffs has erroneously been brushed aside and the findings to the contrary recorded are based on conjectures and surmises. The evidence as has come on record by way of Jamabandies Ext.DW1/A to DW1/G is stated to be misread and misinterpreted. On the other hand, the revenue entries in Jamabandi Exts. PA and PB have erroneously been ignored. According to the plaintiffs, there was sufficient evidence on record to substantiate that they had acquired title in the suit land by way of adverse possession, however, the same has erroneously been brushed aside as pointed out at the very outset. 11. This appeal has been admitted on the following substantial questions of law: “1. Whether the learned lower appellate Court while reversing the judgment and decree of learned trial court, has rightly come to the conclusion that the appellants had failed to prove adverse possession, especially when one of the witnesses of the defendants, viz. DW2, had admitted the possession of the appellants over the disputed land for the last 15-16 years? 2. Whether the learned lower appellate Court was right in not considering the pleadings in respect of adverse possession and erred in holding that the appellants had failed to prove complete ouster of the defendants and their adverse possession over the suit land nor there were any pleadings tot hat effect? 12. Mr. Sunil Mohan Goel, learned counsel for the appellants has strenuously contended that the plaintiffs have successfully pleaded and proved that they are in possession of the suit land since the year 1982 in complete ouster of the defendants. Also that irrespective of the defendants being joint owners of the suit land, their rights, title and interest therein stood extinguished on account of the plaintiffs having remained in continuous, uninterrupted and peaceful possession thereof throughout. Therefore, learned trial Court has rightly decreed the suit. Learned lower appellate Court, has allegedly erred legally and also factually in reversing the well reasoned judgment passed by learned trial Court. Therefore, learned trial Court has rightly decreed the suit. Learned lower appellate Court, has allegedly erred legally and also factually in reversing the well reasoned judgment passed by learned trial Court. Therefore, according to Mr. Goel, judgment and decree under challenge in this appeal is not legally and factually sustainable. 13. On the other hand, Mr. G.R. Palsra, learned counsel for the defendants has urged that in view of the judgment of Hon’ble Court in Gurdwara Sahib Vs. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 , the plaintiffs cannot raise the plea of adverse possession and it is rather the defendants who can raise such plea in his defence. According to Mr. Palsra, otherwise also, the plaintiffs being joint owners in possession of the suit land cannot be allowed to claim that they are owners in possession of the suit land in exclusion of the defendants, as according to Mr. Palsra, in view of the settled legal proposition, the possession of a co-sharer in the joint land is on behalf of each and every co-sharer. While placing reliance on the entries in the Jamabandies Exts. DW1/A to DW1/E and DW1/G, Mr. Palsra has urged that the parties to the suit are in possession of the suit land to the extent of their share allotted to them in the partition having taken place during the settlement operations carried out in the area where the suit land is situated. The appeal, therefore, has been sought to be dismissed. 14. On the face of the substantial questions of law aforesaid, it is crystal clear that the same pertains to the legality and validity of the judgment under challenge to the extent the same deals with the plea of adverse possession raised by the plaintiffs, because learned lower appellate Court has disbelieved the plea so raised; firstly, for want of cogent, legal and acceptable evidence to prove that their possession over the suit land has been actual, notorious, exclusive and continuous for a period over 12 years and also as to from what point of time the period of 12 years starts running and, secondly, that the plaintiffs being in possession of the suit land in the capacity of co-sharers cannot claim their exclusive possession over the suit land, as their possession was on behalf of each and every cosharer. 15. 15. Before coming to the controversy on merits, as per the legal principles settled at this stage, the plaintiff cannot seek declaration to the effect that he has acquired title in the suit land by way of adverse possession. In case he or she is in possession of the suit land, may raise such plea in defence in the event of the suit for the decree of possession of the land in question is filed against him by the true owner. This Court draws support in this regard from the judgment of Hon’ble the Apex Court in Gurdwara Singh Vs. Gram Panchayat village Sirthala, (2014) 1 SCC 669 . It has been held in the judgment that the plea of adverse possession can not be used as a sword but only as a shield. 16. The plaintiffs, therefore, are not entitled to raise the plea of adverse possession. Even if they are entitled to raise such plea, in the considered opinion of this Court, the same is not at all proved. This Court in Shri Sonam Angroop Vs. Sh. Khub Ram and others, Latest HLJ 2016 (HP), after taking note of various judicial pronouncements by the Apex Court and also various High Courts, has held that the elements which convert the peaceful possession into adverse possession i.e., the possession is actual, open notorious, exclusive and continuous for a period of 12 years should be successfully pleaded and proved on record with the help of cogent and reliable evidence. 17. Now, if coming to the case in hand, the suit land was recorded in the joint ownership of the parties on both sides. Jamabandies for the years 1983-84 Ext.PB and 1991-92 Ext.PA, produced in evidence by the plaintiffs themselves, can be taken into consideration in this regard. No doubt in these Jamabandies, the plaintiffs have been shown in possession of the suit land. The statutory period of 12 years, however, is not complete, because the entries in these documents only establish that they were in possession of the suit land for about 8-9 years. In the pleadings also, they claim themselves to be in excusive possession of the suit land right from the year 1982. If this period is also believed to be true as per the entries in the revenue record, they were in possession thereof till 1991-1992 i.e. for about 10 years. In the pleadings also, they claim themselves to be in excusive possession of the suit land right from the year 1982. If this period is also believed to be true as per the entries in the revenue record, they were in possession thereof till 1991-1992 i.e. for about 10 years. After that the entries underwent change during the consolidation operation and the suit land was allotted to the respective shareholders. They were also delivered possession by the consolidation staff and the entries came to be recorded accordingly in the record-of-rights i.e. Jamabandies for the year 1995-96. The copies of Jamabandies Exts. DW1/A to Ext.DW1/E and Ext.DW1/G have been produced in evidence by the defendants to substantiate this aspect of the matter. 18. Therefore, the revenue record produced by the plaintiffs in evidence does not substantiate their plea of adverse possession. True it is that Shri Lal Chand, one of the plaintiffs while in the witness box as PW-1 has stated that they are in possession of the suit land since October, 1982 and similar is the version of PW-2 Shri Khima Ram, however, it is difficult to believe that till the institution of the suit it is the plaintiffs who were in possession of the suit land. 19. As per the evidence, as has come on record by way of the testimony of DW-1 Mohar Singh, one of the defendants, the suit land was partitioned during the consolidation operation carried out in the area where the same is situated and allotted to each co-sharer to the extent of his/her share and since 1995 they are in possession of their respective shares allotted to them during the consolidation operation. DW-1 also tells us that he even had filed an application before the staff carrying out settlement operations for separation of his share in the suit land and it is on that application, the suit land was partitioned. No doubt at one stage he has stated that the plaintiffs were dispossessed by the revenue staff from the suit land and its possession was delivered to him, however, in the same breath stated that whatever land was in possession of the co-sharers, the possession thereof was delivered to them by the revenue staff. No doubt at one stage he has stated that the plaintiffs were dispossessed by the revenue staff from the suit land and its possession was delivered to him, however, in the same breath stated that whatever land was in possession of the co-sharers, the possession thereof was delivered to them by the revenue staff. The fact, however, remains that his testimony establishes the partition of the suit land during the settlement operation carried out in the area and on its partition, the delivery of possession of the suit land to the respective cosharers. 20. DW-2 Devi Ram also substantiates the plea of the defendants that the suit land was partitioned during the consolidation proceedings and its possession given to the co-sharers. True it is that this witness in his cross-examination has admitted the possession of the plaintiffs over the suit land from 15-16 years, however, in view of the consolidation proceedings having taken place in the year 1995 coupled with the entries in the revenue record showing the parties on both sides in possession of the suit land, it would not be improper to conclude that the plaintiffs have failed to prove that they being in exclusive possession of the suit land for a period over 12 years, had become owners thereof. Therefore, the ratio of the judgment of Hon’ble the Apex Court in Maharajadhiraj of Burdwan, Udaychand Mahatab Chand Vs. Subodh Gopal Bose and others, AIR 1971 SC 376 is of no help to the case of the plaintiffs. Reliance has also been placed on a decision again that of Hon’ble the Apex Court in Balkrishan Vs. Satyaprakash and others, AIR 2001 SC 700 . However, the ratio of this judgment is also not applicable in this case. 21. The re-appraisal of the evidence available on record thus leads to the only conclusion that the parties to the suit are co-sharers of the suit land. The same no doubt was in possession of the plaintiffs well before the consolidation operation having taken place in the year 1995, however, there is no legal and acceptable evidence that their possession was hostile and had ripened into their title in the suit land. The present, therefore, is a case where it would not be improper to conclude that their possession over the suit land was on behalf of each and every co-sharer. The present, therefore, is a case where it would not be improper to conclude that their possession over the suit land was on behalf of each and every co-sharer. Hence, they cannot seek the declaration to the effect that they have become owners of the suit land by way of adverse possession. 22. Consequently, the plaintiffs are not entitled to seek declaration to the effect that they are in possession of the suit land and have acquired title therein by way adverse possession. Hence, they are also not entitled to the decree for injunction. Learned lower appellate Court, therefore, has rightly dismissed the suit while arriving at a conclusion that the plaintiffs have failed to prove the plea of adverse possession raised in the plaint. 23. Both substantial questions of law stand answered accordingly. 24. In view of what has been said herein above, there is no merit in this appeal and the same is accordingly dismissed. Consequently, the judgment and decree passed by learned lower appellate Court is affirmed. The parties, however, are left to bear their own costs.