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2016 DIGILAW 2544 (HP)

Rattan Chand (since dead) through LRs v. Julfi Ram

2016-12-02

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the impugned rendition recorded by the learned first appellate Court whereby the latter Court reversed the pronouncement made by the learned trial Court dismissing the suit for injunction preferred there-before by the plaintiff. 2. The facts necessary for rendering a decision on the instant appeal are that the plaintiff is owner in possession of the land comprised in Khata No.13 min, Khatauni No.13 min, Khasra No.279, measuring 0-10-57 hectares as per missal hakiat for the year 2000-2001, situated in Tika Grond, Mauza Kanger, Tehsil Barsar, District Hamirpur, H.P. (herein-after referred to as ‘the suit land’). The defendants have no right, title or interest in the suit land. They are strangers. On 17.5.2002 when the plaintiff was ploughing the suit land, the defendants appeared there and objected to it. They threatened that they will take forcible possession of the suit land and not allow him to plough the same. They also threatened to cut valuable trees from it due to which the plaintiff has filed the instant suit for permanent prohibitory injunction restraining the defendants from interfering in the possession of the plaintiff over the suit land. 3. The suit of the plaintiff was resisted and contested by the defendants. In their written-statement they have taken preliminary objection inter alia of cause of action, maintainability, estoppel and the plaintiff having no locus standi to file the present suit. On merits it is alleged by the defendants that the total area of the suit land is 0-10-57 hectare and out of this land the defendant No.1 has purchased the land measuring 0-0768 hectares vide agreement of 14.11.1984 and since 14.11.1984 he is in continuous possession of the land purchased by him i.e. 2 kenals out of the suit land and now he has become owner of this 2 kanal of land by way of adverse possession. It is further alleged that after the agreement in question the father of the plaintiff had fixed a boundary on the spot with the help of a Patwari. On this ground it is alleged that the suit of the plaintiff is not maintainable in the present form. 4. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- (i) Whether the plaintiff is the owner in possession of the suit land as alleged? On this ground it is alleged that the suit of the plaintiff is not maintainable in the present form. 4. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- (i) Whether the plaintiff is the owner in possession of the suit land as alleged? OPP (ii) Whether the plaintiff is entitled to the injunction prayed for? OPP (iii) Whether the plaintiff is entitled to a decree for possession as claimed? OPP (iv) Whether the suit is not maintainable in the present form? OPD (v) Whether the plaintiff is estopped from filing the suit by his act and conduct? OPD (vi) Whether the plaintiff has the locus-standi to sue? OPP (vii) Whether the plaintiff has a cause of action? OPP (viii) Whether the defendants are entitled to special costs u/s 35A CPC as claimed, if so, their quantum? OPD (ix) Whether the defendant No.1 has become owner of the suit land by way of adverse possession as alleged. If so, its effect? OPD. (x) Whether the suit has not been properly valued for the purpose of the court fee and jurisdiction ? OPD (xi) Whether the defendant No.1 purchased the land vide agreement dated 14.11.84 as alleged. If so, its effect? OPD (xii) Relief. 5. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff whereas the learned First Appellate Court proceeded to allow the appeal preferred before it by the plaintiff. 6. Now the appellants/defendants have instituted the instant Regular Second Appeal before this Court, assailing the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 21.3.2005, this Court admitted the appeal on the hereinafter extracted substantial questions of law:- 1. Whether the findings recorded by the learned lower Appellate Court are absolutely perverse and based on complete misreading of the judgment and decree passed by the learned trial Court? 2. Whether the suit filed by the plaintiff was time barred? 3. Whether defendant/appellant was entitled to protect his possession under Section 53-A of the Transfer of Property Act more especially when the agreement dated 14/11/1984 had been duly proved on record an don the basis of this agreement the defendant/appellant had been put in possession over the suit land. 4. Whether the suit filed by the plaintiff was time barred? 3. Whether defendant/appellant was entitled to protect his possession under Section 53-A of the Transfer of Property Act more especially when the agreement dated 14/11/1984 had been duly proved on record an don the basis of this agreement the defendant/appellant had been put in possession over the suit land. 4. Whether the findings recorded by the learned Appellate Court are otherwise perverse being based on complete misreading and mis-appreciation of the pleadings and exhibited documents on record? Substantial questions of law: 7. Ex.DW-2/A stood executed on 14.11.1984 qua the suit land inter-se father of the then minor plaintiff with the defendants. Thereunder the suit land stood agreed to be alienated to defendant No.1. Ex.DW-2/A also there within holds a recital qua the suit property standing agreed to be sold for a sale consideration of Rs.2,000/- by the father of the then minor plaintiff vis-à-vis the defendant No.1 also it holds recitals qua the sale consideration standing received thereat on behalf of the then minor thereat by the latter’s father. A recital stands also encapsulated therein qua the father of the plaintiff undertaking therein qua on the plaintiff attaining majority the latter executing a sale deed qua the suit land besides it holds a recital qua his holding responsibility qua Julfi Ram on attaining majority his executing a sale deed with the defendant No.1 qua the suit land. In addition recitals stand embodied therein qua on the plaintiff refusing to execute the sale deed with defendant No.1 qua the suit land thereupon the father of the plaintiff undertaking to alienate vis-à-vis defendant No.1 3 kenals of land held in his ownership. The factum of formidable proof emanating qua occurrence of signatures of the father of the plaintiff and of the defendants on the relevant agreement to sell the suit land embodied in Ex.DW-2/A stands unflinchingly evinced besides unearthed from the relevant apposite material. The factum of formidable proof emanating qua occurrence of signatures of the father of the plaintiff and of the defendants on the relevant agreement to sell the suit land embodied in Ex.DW-2/A stands unflinchingly evinced besides unearthed from the relevant apposite material. However proof of occurrence thereon of signatures respectively of the father of the plaintiff and of the defendants would not ipso-facto beget an inference of devolution of interest of the minor in the suit property standing validly bestowed upon the defendant conspicuously when at the time contemporaneous to its execution the plaintiff thereat was a minor whereupon emanation stood enjoined to sprout of the relevant evidence holding vivid portrayals therein qua the father of the plaintiff while executing qua the suit property Ex.DW-2/A with the defendants his not thereby harming or jeopardizing the interest of the minor in the suit property rather in his executing DW-2/A with the defendants his ensuring qua thereupon the welfare besides the benefit of the minor standing facilitated. However the aforesaid evidence is amiss. In aftermath lack of the aforesaid evidence constrains a conclusion qua dehors proof standing adduced qua occurrence of signatures thereon of the father of the plaintiff and of the defendants not ipso facto proving the imperative factum of the father of the then minor plaintiff in his executing DW- 2/A with the defendants his ensuring qua thereupon the benefit besides interest of the then minor plaintiff in the suit property standing facilitated. Significantly this Court while standing seized of DW-2/A which stood executed at a stage when the plaintiff was a minor stands enjoined to in the capacity of parens patriae vis-à-vis the then minor plaintiff ensure the paramount factum qua its execution not standing gripped with any vice of the minor’s interest in the suit property at the relevant stage of its execution standing neither compromised nor adversely affected whereas for reasons aforesaid unflinching evidence for sustaining the aforesaid factum being amiss, prods this Court to reinforcingly with accentuated vigor conclude qua Ex.DW-2/A standing stained with a colour of invalidity whereupon no bestowment of title occurred thereunder vis-à-vis the defendant. 8. Be that as it may even if assumingly dehors the aforesaid inference as stands erected by this Court the defendants for repulsing the apposite endeavor of the plaintiff was enjoined to prove the factum of his holding possession upon the suit property. 8. Be that as it may even if assumingly dehors the aforesaid inference as stands erected by this Court the defendants for repulsing the apposite endeavor of the plaintiff was enjoined to prove the factum of his holding possession upon the suit property. Even though the defendant No.1 canvasses that in pursuance to Ex.DW-2/A his holding possession of the suit property whereupon he concerts to canvass qua his holding entitlement to receive the benefit of section 53(A) of the transfer of the property Act, espousal whereof for the reasons afore-stated stands blunted yet dehors the vigor of his espousal qua the aforesaid facet getting smothered, nonetheless he stood enjoined to prove by emphatic evidence qua his holding possession of the suit property. However the relevant documentary evidence comprised in copy of missal hakiat bandobast borne on Ex.P- 1, Exhibit whereof pertains to the suit land rather holds visible reflections qua the plaintiff holding possession of the suit property, reflections whereof when hold a presumption of truth hence enjoined the defendants to by adducing cogent evidence dislodge the aforesaid presumption. The defendants in making the aforesaid concert have merely relied upon oral evidence besides relying upon an acquiescence made by the plaintiff in his cross-examination qua his sighting the defendants ploughing the suit land. However therefrom it is unbefitting to conclude qua the presumption of truth carried by the apposite reflections occurring in the apposite revenue record standing dislodged especially when the plaintiff while making the aforesaid acquiescence has omitted to make therein a precise communication qua the defendants ploughing the suit land whereas for the aforesaid acquiescence to give capitalization to the espousal of the defendants qua thereupon theirs standing concluded to hold possession of the suit land an acquiescence holding a precise embodiment therein qua the defendants ploughing the suit land stood enjoined to emanate from the plaintiff whereas his deposing nebulously qua the aforesaid facet constrains an inference qua the nebulously worded acquiescence made by the plaintiff qua his sighting the defendants to plough land being un-relatable to the suit land rather it being relatable to some other land whereupon with hence the presumption of truth enjoyed by the apposite revenue records remained un-eroded rendering reliance thereupon for making a conclusion qua the plaintiff holding possession of the suit land being a tenable ensuing sequel therefrom. 9. 9. Accordingly, there is no merit in the instant appeal and the same is dismissed. Substantial questions of law answered in favour of the plaintiff accordingly. Impugned judgment is maintained and affirmed. All pending applications shall also stand disposed of. No costs. The records be sent back forthwith.