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2016 DIGILAW 2393 (HP)

Chaudhari Ram since died through LRs v. Nathu Ram

2016-11-11

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J: The instant appeal stands directed against the impugned judgement and decree of the learned Additional District Judge, Ghumarwin, District Bilaspur, H.P., whereby he affirmed the rendition of the learned Senior Sub Judge, Bilaspur, District Bilaspur, Himachal Pradesh, Camp at Ghumarwin. The plaintiffs standing aggrieved by the concurrently recorded renditions of both the learned Courts below, concert through the instant appeal constituted before this Court, to beget reversal of the judgements and decrees of both the Courts below. 2. The facts necessary for rendering a decision on the instant appeal are that the plaintiff was the owner in possession of land measuring 0-2 biswas, bearing Khasra No. 95, situated in village Lethwin. In the year Sambat 2010 B.K the suit land was given on lease to defendant No.1 on payment of rent of Rs.1/- per annum. The defendant No.1 had constructed a house on the suit land. Lateron the lease was terminated in the year Sambat 2025 B.K. when the defendant No.1 executed an agreement and the plaintiff paid Rs.300/- to defendant No.1. The defendant No.1 had removed the material of house from the suit land and he permanently shifted to his native village Barota. Thus, the suit land had been coming in possession of the plaintiff since Sambat 2025 B.K. But the defendant No.1 had illegally sold the suit land vide sale deed dated 18.08.1994 in favour of defendant No.2. The defendant No.2 had threatened to interfere with possession of plaintiff and to raise construction on the suit land. Hence, the suit. 3. The suit was contested by defendants. They filed written statement, wherein they raised preliminary objections about maintainability of the suit and cause of action. On merits of the case, the defendants refuted entire case of the plaintiff. They further alleged that possession was not handed over to plaintiff nor any agreement was executed by defendant No.1 in favour of defendant No.2. The defendants refuted entire case of the plaintiff and they prayed for dismissal of the suit. 4. On the pleadings of the parties, the trial Court struck following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for relief of declaration and permanent prohibitory injunction, as prayed for? OPP. 2. Whether in the alternative the plaintiff is entitled for possession? OPP. 3. Whether the plaintiff is owner in possession of the suit land by virtue of adverse possession? Whether the plaintiff is entitled for relief of declaration and permanent prohibitory injunction, as prayed for? OPP. 2. Whether in the alternative the plaintiff is entitled for possession? OPP. 3. Whether the plaintiff is owner in possession of the suit land by virtue of adverse possession? OPP. 4. Whether the plaintiff has no cause of action? OPD. 5. Whether the suit is not maintainable in the present form? OPD. 6. Relief. 5. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff besides the learned Additional District Judge, affirmed the findings of the learned trial Court. 6. Now the plaintiffs/appellants herein has instituted before this Court the instant Regular Second Appeal wherein they assail the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 8.5.2007, this Court admitted the appeal on the hereinafter extracted substantial questions of law:- ?1. Whether both the Courts below have acted beyond their jurisdiction in applying the provisions of H.P. Tenancy and Land Reforms Act to the land which was Abadi and by no stretch of imagination was covered by provision of the said Act, to hold defendant No.1 to declare defendant No.1 to be non occupancy tenancy having acquired proprietary rights? 7. Whether both the Courts below have committed grave illegality and irregularity in misreading Ext.P1 the mutation which was not attested by a competent officer? Have not both the Courts below exceeded their jurisdiction in relying upon Ext.P1 which was illegal null and void and did not confor any provision of law and rule of procedure? 8. Whether both the Courts below have committed grave illegality in ignoring from consideration the material document Ext.PW-2/A by wrongly invoking the provisions of registration Act by holding that the document is inadmissible for want of registration, when no such objection regarding admissibility was raised during the course of the trial and when the said document was admitted in evidence? 9. Whether the lower Appellate Court has committed grave illegality and irregularity in rejecting the application filed by the plaintiff appellant for amendment of the plaint? 10. Whether both the Courts below have acted with material illegality and irregularity in presuming the title in favour of the defendant No.1 thereby holding defendant No.2 to be owner by misreading the pleadings and evidence? 11. 10. Whether both the Courts below have acted with material illegality and irregularity in presuming the title in favour of the defendant No.1 thereby holding defendant No.2 to be owner by misreading the pleadings and evidence? 11. Whether both the Courts below have acted in excess of their jurisdiction in dismissing the suit of the plaintiff to be non maintainable without properly considering the alternative plea raised by the plaintiff for recovery of possession and mis-construing and misunderstanding the plea of perfection of the title raised by the plaintiff.? Substantial questions of law. 7. In the plaintiffs' concert to obtain qua the suit land a decree of permanent prohibitory injunction from the Civil Court for thereupon the defendants standing restrained from interfering with their possession qua it, it was imperatively incumbent upon them to by clinching evidence substantiate the trite factum qua theirs extantly holding possession of the suit land. The deceased sole plaintiff in the endeavour aforesaid had relied upon Ext.PW-2/A whereunder he espuoused qua his obtaining possession of the suit land whereon he raised a construction. However, in his plaint he acquiesces qua the construction raised by him on the suit land standing demolished whereafter his cultivating it. The impact if any of Ext.PW-2/A for clinching the factum of the plaintiffs in pursuance thereto holding possession of the suit land stands effaced by the factum of its holding a recital therein qua a sum of Rs.300/- passing as consideration from the plaintiff to defendant No.1 whereupon under the provisions of Section 17 of the Indian Registration Act its registration was compulsory whereas it remained unregistered, obviously thereupon no bestowment of title qua the suit land ensued vis.a.vis the deceased sole plaintiff. Apparently hence the gravamen of the deceased sole plaintiffs' concert to thereupon assert qua his holding possession of the suit land gets belittled besides scuttled. 8. Be that as it may, the counsel for the plaintiff relies upon Ext.P-1 wherewithin reflections are held qua the plaintiff holding possession of the suit land, described therein as =Gair Mumkin Abadi', for making an espousal herebefore of his holding possession of the suit land. True it is of the apposite reflections aforesaid held in Ext.P-1 do carry a presumption of truth, presumption whereof carried by them unless belittled by cogent evidence would acquire conclusivity whereupon hence the plaintiff would succeed in establishing his holding possession of the suit land. True it is of the apposite reflections aforesaid held in Ext.P-1 do carry a presumption of truth, presumption whereof carried by them unless belittled by cogent evidence would acquire conclusivity whereupon hence the plaintiff would succeed in establishing his holding possession of the suit land. However, even if no cogent evidence in rebutting the reflections held therewithin stands adduced by the defendants yet the efficacy of the reflections held therewithin stand denuded given the plaintiff acquiescing in his pleadings qua the aforesaid structure raised by him on the suit land standing demolished whereafter he espouses qua his cultivating the suit land. In sequel, it was imperative for the deceased sole plaintiff to adduce efficacious evidence in portrayal thereof. The deceased sole plaintiff has omitted to adduce the relevant best evidence comprised in the apposite reflections borne on Khasra Girdawaris whereas with defendant No.1 executing qua the suit land a registered deed of conveyance comprised in Ext.DW-1/A with defendant No.2, in sequel whereof mutation comprised in Ext.DA stood attested, pronounces upon the factum of the defendant No.2 holding possession of the suit land. The aforesaid pronouncements emerging from the exhibits aforesaid were enjoined to be subjected to an assault thereon standing constituted by the deceased sole plaintiff yet he omitted to mount an assault qua the efficacy borne by the relevant pronouncements occurring in Ext.DW-1/A and Ext.DA. The effect of his omitting to constitute an assault upon the efficacy of Ext.DW-1/A besides of Ext.DA unveils an inference of his acquiescing to the relevant manifestations which occur therewithin in display of defendant No.2 extantly holding possession of the suit land wherefrom it is apt to conclude of his pretextually canvassing qua his holding possession of the suit land. 9. The deceased sole plaintiff had canvassed qua his perfecting his title qua the suit land by way of adverse possession. However, the aforesaid plea stands propounded by a catena of judicial verdicts to be unavailable for its standing canvassed by the plaintiff also judicial verdicts expostulate qua the aforesaid plea being unavailable for its standing raised in the affirmative by the plaintiff contrarily it being available for its standing reared in-repudiation to the apposite assertions espoused by the deceased sole plaintiff. In aftermath, the ensuing apt conclusion is of the deceased sole plaintiff standing disabled to raise the aforesaid plea besides hence merit if any in the aforesaid plea gets benumbed by the factum, for reasons aforesaid his acquiescing to defendant No.2 extantly holding possession of the suit land. 10. For reasons aforesaid this Court concludes with aplomb of the judgements and decrees of both the Courts below standing sequelled by theirs appraising the entire evidence on record in a wholesome and harmonious manner apart therefrom it is obvious that the analysis of material on record by the learned Courts below not suffering from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather they have aptly appreciated the material available on record. I find no merit in this appeal, which is accordingly dismissed and the concurrently recorded judgments and decrees of both the Courts below are maintained and affirmed. Substantial questions of law stand answered against the plaintiff. Decree sheet be prepared accordingly. All pending applications stand disposed of accordingly. No costs.