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2016 DIGILAW 637 (HP)

Bidhi Chand v. Jagdish Chand

2016-05-02

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This Regular Second Appeal is directed against the judgment and decree dated 22.2.2005 rendered by the learned District Judge, Hamirpur in Civil Appeal No. 17 of 2003. 2. “Key facts” necessary for the adjudication of this appeal are that the respondent-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) filed a suit for declaration etc. against the appellant-defendant, namely, Bidhi Chand and others and proforma defendants. According to the averments made in the plaint, plaintiff alongwith proforma defendant Nos.8 to 12, as per the cause title of the civil suit, was owner in possession to the extent of their share of the land in question. No exchange was made by him, proforma defendants or their forefathers with defendant Nos. 1 to 7. No land situated in Tikka Balla was taken in exchange. There was no such Tikka in Tehsil Barsar. The revenue entries showing the names of defendant Nos. 1 to 7 as non-occupancy tenants of the land in question in lieu of the exchange of land located in Tikka Balla, Tappa Dhatwal without payment of rent were wrong and illegal. He alongwith proforma defendants were not bound by the said entries. He alongwith proforma defendant Nos. 8 to 12 was in continuous possession of the suit land since the time of their ancestors. Earlier their predecessors-in-interest were in possession of the land in dispute. Tikka Kothi was under the operation of settlement. The case was wrongly dismissed by the Naib Tehsildar (Settlement), Saloni Circle. They filed an appeal before the Assistant Settlement Officer (exercising the powers of Collector (Settlement), Dharamshala. The appeal was dismissed on 26.5.1998 wrongly and illegally. Plaintiff and proforma defendant Nos. 8 to 12 preferred an appeal before the Commissioner, Mandi Division, which is still pending. Tikka Kothi was also under the operation of consolidation. Plaintiff and proforma defendants filed a petition under section 54 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 with respect to the vague and false revenue entry in the revenue papers before the Director Consolidation. The Director Consolidation advised them to approach the civil court. Cause of action arose after the decision of the Settlement Collector dated 26.5.1998 as defendant Nos. 1 to 7 started causing interference and threatened to take possession of the suit property. 3. The suit was contested by defendant Nos. 1 to 7 filing written statement. The Director Consolidation advised them to approach the civil court. Cause of action arose after the decision of the Settlement Collector dated 26.5.1998 as defendant Nos. 1 to 7 started causing interference and threatened to take possession of the suit property. 3. The suit was contested by defendant Nos. 1 to 7 filing written statement. Preliminary objections were taken. It was specifically pleaded that disputed property was in their exclusive possession from the years 1951-52. They were cultivating and managing the land in question and paying the land revenue. Plaintiff or proforma defendants were not in possession of any part of the disputed land. The revenue record was correct. Plaintiff cannot challenge the entries existing in their favour after a period of 48 years. There is complete ouster of the plaintiff and his predecessors-in-interest. Defendants were in open, continuous and hostile possession of the suit land from the year 1951-52 and have become owners of the land by way of adverse possession. Order passed by the various authorities cannot be questioned in the civil court. The civil court cannot go into the propriety or correctness of the orders passed by the consolidation authorities. 4. Issues were framed by the learned Sub Judge 1st Class, Barsar on 27.4.2000. He dismissed the suit on 14.1.2003. Plaintiff filed an appeal before the learned District Judge, Hamirpur against the judgment and decree dated 14.1.2003. He allowed the same on 22.2.2005. It is in these circumstances one of the defendants Bidhi Chand has filed the present Regular Second Appeal. It was admitted on the following substantial questions of law on 2.5.2005: 1. Whether the findings of the learned first appellate court that the suit was within the period of limitation is contrary to the evidence on record? 2. Whether the learned first appellate court erred in holding that the appellant-respondents were in adverse possession of the suit property dehors the evidence on record? 5. Mr. J.L. Bhardwaj, learned counsel for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that the suit was barred by limitation. He then contended that his client has proved adverse possession since 1951-1952. 6. Mr. Ajay Sharma, learned counsel appearing on behalf of respondent No.1 has supported the judgment and decree dated 22.2.2005. 7. I have heard the learned counsel for the parties and have gone through the records carefully. 8. He then contended that his client has proved adverse possession since 1951-1952. 6. Mr. Ajay Sharma, learned counsel appearing on behalf of respondent No.1 has supported the judgment and decree dated 22.2.2005. 7. I have heard the learned counsel for the parties and have gone through the records carefully. 8. Since both the substantial questions of law are interlinked and interconnected, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. PW-1 Jagdish Chand has deposed that he and his mother were co-owners in possession of the suit land. Defendants have no concern with it. They never remained in possession of the suit property. No exchange took place with defendant Nos. 1 to 7. Defendants were never inducted as tenants over the land in question. No rent was ever paid by the defendants. Wrong entry was made by the revenue people. There was no Tikka Balla in Tehsil Barsar. Prior to them, their forefathers were in possession. In May, 1998, defendants threatened to forcibly occupy the land in suit and the suit was instituted. In his cross-examination, he has denied that sub name of Tikka Khilawat is Tikka Balla. The consolidation was carried out in village Kothi 10-12 years ago. He preferred an appeal before the Director. 10. PW-2 Kesar Chand was serving as Patwari, Halqua Bara, Tehsil Barsar. He proved the certificate Ex.PW-2/A issued by him to the effect that there was no Tikka Balla in Patwar Circle, Bara. The certificate was countersigned by Sh. B.K. Sharma, Naib Tehsildar, Dhatwal (Bijhari). 11. PW-3 Jagdish Chand remained posted as Patwari (Settlement), Tikka Kothi. He has proved the report dated 12.6.1997 Ex.PW-3/A. This report was sent by him to the Field Kanungo. 12. PW-4 Hans Raj and PW-5 Dharam Pal have also supported the case of plaintiff. In his examination-in-Chief, PW-4 Hans Raj has deposed that defendants started interfering in the land in dispute on 26.5.1988. He has denied that Tikka Khilawat was also known as Tikka Balla. 13. Defendant Bidhi Chand has appeared as DW-1. He has deposed that the suit land was in their possession from the year 1951-52. They were getting the suit land cultivated through Gian Chand son of Roshan Lal. Plaintiff was living in village Balla which was located 15-20 kilometers away from the suit property. 14. DW-2 Bakshi Ram was Ex-Pradhan of Sathwin Panchayat. He has deposed that the suit land was in their possession from the year 1951-52. They were getting the suit land cultivated through Gian Chand son of Roshan Lal. Plaintiff was living in village Balla which was located 15-20 kilometers away from the suit property. 14. DW-2 Bakshi Ram was Ex-Pradhan of Sathwin Panchayat. He has deposed that Tikka Khilawat was in his Panchayat. One Sath of Tikka Khilawat was known as Balla. There was no village/Tikka Balla. He was known to the plaintiff. 15. DW-3 Gian Chand has supported the version of defendants. 16. DW-4 Shambhu Ram was Kanungo. He has deposed that Tikka Kothi was a part of his area. He has proved Ex.DW-4/A copy of spot inspection report dated 11.7.1997 prepared by him. He recorded the statements of the parties on the spot. 17. Ram Chand has been examined in rebuttal. He has deposed that defendants did not own any land in Tikka Khilawat. No exchange was effected. There was no village or Sath known as Balla in Tikka Khilawat. 18. According to Jamabandi for the year 1944-45 Ex. P-2 of Tikka Kothi, Sarba Ram, father of the plaintiff etc. are shown as owners of the land measuring 8-16 kanals. The possession of one Wajira son of Moti was recorded over the said land as a tenant. In Jamabandi for the year 1952-53 Ex.P-3 and Ex.D-1, Sarba, father of the plaintiff etc. are shown as owners of 8-16 kanals of land in possession of Guja. Predecessor-in-interest of the contesting defendants was shown over the whole land as a tenant. The entry in the column of rent reads “Bebjah Tabadla Kham Hamra Araji Vakya Tikka Balla Mauza Dhatwal dksbZ yxku vnk ugha gksrk gS These entries were reiterated in the jamabandis for the years 1956-57, 1960-61 and 1965-66. In the Jamabandi for the year 1971-72, Sarba etc. are shown as owners of the land and defendants are shown as tenants. To the same effect are the entries in Jamabandi for the years 1981-82. In copy of Missal Hakiat Istemal for the year 1986-87 relating to village Kothi, plaintiff and proforma defendants are shown as owners of the land in suit. Possession of the defendants was shown as of tenants. To the same effect are the entries in Jamabandi for the years 1981-82. In copy of Missal Hakiat Istemal for the year 1986-87 relating to village Kothi, plaintiff and proforma defendants are shown as owners of the land in suit. Possession of the defendants was shown as of tenants. The entry in column No. 9 reads “Bebjah Tbadla Kham Va Hamra Araji Tikka Balla Mauza Dhatwal dksbZ yxku vnk ugha gksrk gS In Jamabandi for the year 1970-71 Ex.P-13, possession of the defendants has been shown over the disputed property as tenants. In Jamabandi for the year 1991-92 Ex.D-9, plaintiff and proforma defendants are shown owners of the land in dispute. Possession of the defendants has been shown as tenants. 19. The core issue involved in this lis is that whether defendant Nos. 1 to 7 had any land in Tikka Balla and they had exchanged this land of Tikka Balla with the plaintiff. Defendants have not taken plea of having changed and giving them land in Tikka Balla. DW-1 Bidhi Chand has admitted in his cross-examination that their predecessor-in-interest might have given land in exchange of plaintiff etc. They were paying rent. However, this plea has not been taken in the written statement. PW-2 Kesar Chand has proved certificate Ex.PW-2/A. It is specifically stated in Ex.PW-2/A that there was no Tikka Balla in Patwar circler, Bara. The certificate was countersigned by Sh. B.K. Sharma, Naib Tehsildar, Dhatwal (Bijhari). It is also evident from the revenue record that defendants did not own any land in Tikka Khilawat. Defendants have merely been shown as non-occupancy tenant without payment of rent in lieu of exchange in Tikka Balla. It is merely a paper entry. There is no Tikka Balla. Defendants did not own any land in Tikka Khilawat. Thus, plea taken by the defendants that they have taken the land in exchange from the plaintiff or they have been inducted as tenants by the plaintiff is not proved by leading tangible evidence. Plaintiffs have led sufficient evidence to prove that plaintiff and proforma defendants were owners in possession of the suit land. The plea taken by the defendants qua adverse possession has not been proved. The ingredients of adverse possession ought to have been proved by the defendants. None of the defendants in witness has proved when their possession became adverse to the title of true owner. The plea taken by the defendants qua adverse possession has not been proved. The ingredients of adverse possession ought to have been proved by the defendants. None of the defendants in witness has proved when their possession became adverse to the title of true owner. Mere long standing possession is not adverse. Person claiming adverse possession must prove when he came in possession and what was the nature of possession to the knowledge of the true owner. There has to be animus possession and not bona fide belief that the property belongs to him. 20. As far as the question of limitation is concerned, plaintiff has led evidence that he came to know about the revenue entries during settlement. These are still in existence. He obtained the revenue record and thereafter filed the suit. Thus, it cannot be termed that the suit was barred by limitation. The first appellate court has correctly appreciated the oral as well as documentary evidence and there is no need to interfere with the well reasoned judgment. 21. Now, as far as the plea of adverse possession is concerned, suffice it to say that issue No.9 was not pressed by the defendants before the trial court. Moreover, defendants have failed to prove the plea of adverse possession raised by them by leading tangible evidence. 22. The substantial questions of law are answered accordingly. 23. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending applications, if any, also stands disposed of. No costs.