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2016 DIGILAW 925 (HP)

Piar Chand v. Rakesh Kumar

2016-05-25

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Kangra at Dharamshala, H.P. dated 4.9.2010, passed in RBT Civil Appeal No. 57G/X/III/2010/2006. 2. Key facts, necessary for the adjudication of this regular second appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs) have filed a suit against the appellants-defendants (hereinafter referred to as the defendants) for vacant possession of the suit land, as detailed in the plaint. According to the averments made in the plaint, prior to the consolidation, Kh. number of the suit land was 1757 which was converted into new Kh. No. 1801. The defendants’ predecessor Nikku Ram filed a Civil Suit No. 4 of 1985 before the Sub Judge, Dehra for declaration on the basis of tenancy and in the alternative adverse possession was also pleaded. The suit of the predecessor of the defendants was dismissed on 6.4.1985. The predecessor of the defendants was not held to be tenant and no right of adverse possession accrued to the predecessor of the defendants. The defendants preferred an appeal against the judgment and decree dated 6.4.1985 before the learned Addl. District Judge (I), Kangra bearing No. 66 of 1985. The learned Addl. District Judge (I), Kangra vide judgment dated 22.4.1989 partly allowed the appeal and held that the predecessor of the defendants was trespasser. Thereafter, the plaintiffs filed RSA No. 292/1989 against the judgment and decree of the learned first appellate Court dated 22.4.1989 before this Court. This Court upheld the judgment and decree passed by the learned first appellate Court. The defendants have forcibly raised the tin posh shed with pucca bricks over the suit property. 3. The suit was contested by the defendants. In the written statement, the defendants have raised the plea of adverse possession. According to them, they were in possession of the suit land and prior to them, their father Nikku Ram was in peaceful, continuous and uninterrupted possession of the suit land to the knowledge of the plaintiffs and other co-sharers. The construction has been raised on Kh. Nos. 1802, 1803 and 1800 being possessed by the defendants. The structure is in Kh. Nos. 1803 and 1804 and not on the suit property. According to them, they were in peaceful, open and hostile possession of the suit property for the last more than 70 years. 4. The construction has been raised on Kh. Nos. 1802, 1803 and 1800 being possessed by the defendants. The structure is in Kh. Nos. 1803 and 1804 and not on the suit property. According to them, they were in peaceful, open and hostile possession of the suit property for the last more than 70 years. 4. Replication was filed by the plaintiffs. The learned Civil Judge, (Sr. Divn.), Dehra, Distt. Kangra, H.P., framed the issues on 13.11.2002. The suit was decreed on 31.5.2006 by the learned Civil Judge, (Sr. Divn.), Dehra, Distt. Kangra, H.P. Feeling aggrieved, the defendants preferred an appeal before the learned District Judge, Kangra at Dharamshala. The learned District Judge, Kangra at Dharamshala, dismissed the same on 4.9.2010. Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law on 7.12.2010: “1. Whether both the ld. Courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them in its right perspective thereby vitiating the impugned judgments and decrees? 2. Whether earlier litigation being with respect to tenancy, impugned judgments & decrees are vitiated in non-suiting the appellants owing to earlier litigation, whereas plea in the present lis of the appellants is of adverse possession? 3. Whether impugned judgments and decrees are vitiated owing to misreading and mis-appreciating of the evidence in the shape of PW-1 to PW-4 and documents, exhibit P1 to P1/G and D1 to D17 thereby vitiating the impugned judgments & decrees?” 6. Mr. Ajay Sharma, Advocate, on the basis of substantial questions of law framed, has vehemently argued that both the Courts below have not correctly appreciated the oral as well as documentary evidence. He then contended that his clients have proved the adverse possession. He lastly contended that revenue records have also not been correctly appreciated by the learned Courts below. On the other hand, Mr. Sanjay Prashar, Advocate, has supported the judgments and decrees of both the Courts below. 7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 8. Anil Kumar, PW-1 has led his evidence by filing affidavit. According to the averments contained in the affidavit, plaintiffs are owners of the suit land. The father of the defendants had filed a civil suit and pleaded the right of tenancy and adverse possession. 8. Anil Kumar, PW-1 has led his evidence by filing affidavit. According to the averments contained in the affidavit, plaintiffs are owners of the suit land. The father of the defendants had filed a civil suit and pleaded the right of tenancy and adverse possession. The civil suit was dismissed by the learned trial Court. The appeal was filed and the same was partly allowed. The possession of predecessor-in-interest of the defendants was held as trespasser. It was also held that the predecessor-in-interest of the defendants will be dispossessed from the suit property in accordance with law. The Regular Second Appeal was filed by the plaintiffs before the High Court and the High Court affirmed the judgment and decree passed by the learned Addl. District Judge (I), Kangra at Dharamshala. The defendants were trespassers and the plaintiffs have requested the defendants to vacate the possession but the defendants did not accept the request of the plaintiffs. 9. Suresh Kumar, PW-2 also corroborated the statement of Anil Kumar, PW-1. He also led his evidence by filing affidavit. It is averred in the affidavit that the defendants are trespassers over the suit land. However, during the pendency of the suit, they have raised tin posh shed over the suit property. The Local Commissioner also visited the spot. The plaintiffs have proprietary rights over the suit property. 10. V.P. Singh, PW-3 has also led his evidence by filing affidavit. He was appointed as Local Commissioner by the Court. He has visited the spot and submitted the report Ext. PW-3/A. In his cross-examination, he deposed that he did not conduct the demarcation of the suit property and also he did not call Halqua Patwari. He further stated that when he visited the spot, he was not in possession of Shajra. 11. Piar Chand, DW-1 has led his evidence by filing affidavit. According to him, the suit property was in possession of his father late Nikku Ram since time immemorial. The possession was in the knowledge of the owners. The right of adverse possession has accrued in favour of the defendants qua the suit property and they were in the continuous and peaceful possession. In his cross-examination, he admitted that the defendants did not purchase the suit property from the owners at any point of time. He admitted that he remained as tenant over the suit property. The right of adverse possession has accrued in favour of the defendants qua the suit property and they were in the continuous and peaceful possession. In his cross-examination, he admitted that the defendants did not purchase the suit property from the owners at any point of time. He admitted that he remained as tenant over the suit property. He also admitted that the plaintiffs and other persons are proprietors of the suit property. He also admitted that civil suit was filed against the plaintiffs. It was dismissed by the trial Court. Thereafter, the appeal was filed. He also admitted that in the former suit tenancy rights and the right of adverse possession were declined by the Civil Court. The defendants were found as trespassers. The order passed by the first appellate Court was upheld by the High Court in Regular Second Appeal. He denied the suggestion that tin posh shed was constructed on 26.12.2001 over the suit property. 12. Sushil Kumar, DW-2 also has led his evidence by filing affidavit. According to him, he was Lambardar since 1986. He stated that Nikku Ram was in possession over the suit property and after his death, defendants came in possession as his LRs. It is further averred that defendants became owners over the suit property. In his cross-examination, he admitted that he did not know the status of the defendants over the suit property. 13. Mohinder Singh, DW-3 also has led his evidence by filing affidavit. It is averred in the affidavit that Nikku Ram was in possession of the suit property and after his death, his LRs are owners of the suit property. The plaintiffs did not remain in possession over the suit property. 14. Rakesh Kumar, PW-4 was examined in rebuttal. According to the averments made in the affidavit filed by him, the plaintiffs were owners of the suit property and defendants have no title over the same. The issue of adverse possession was earlier decided by the Courts. The defendants were found to be trespassers on the suit property. The defendants have raised tin posh shed on the suit property. 15. Mr. Ajay Sharma, Advocate, has vehemently argued that his clients were tenants over the suit property and in the alternative, they have become owners by way of adverse possession. The defendants were found to be trespassers on the suit property. The defendants have raised tin posh shed on the suit property. 15. Mr. Ajay Sharma, Advocate, has vehemently argued that his clients were tenants over the suit property and in the alternative, they have become owners by way of adverse possession. The plea of tenancy and adverse possession has already been conclusively decided by the learned Sub Judge in Civil Suit No. 4 of 1985 vide judgment dated 6.4.1985. The plea was also not accepted by the learned first appellate Court in civil appeal bearing No. 66 of 1985. The regular second appeal No. 292 of 1989 was also dismissed by this Court vide judgment dated 14.12.1985. The defendants were found trespassers over the suit land and they were ordered to be evicted in accordance with law. Moreover, according to the written statement defendants have pleaded that they were in possession of the suit property for the last more than 70 years. Piar Chand LR of late Nikku who appeared in the witness box on 18.7.1983 in Civil Suit No. 4 of 1980 testified that his father had been in possession of the suit land since 55-60 years in the year 1983. It is reiterated that the learned Addl. District Judge (I), Kangra at Dharamshala in Civil Appeal bearing No. 66 of 1985 has given findings against the defendants qua adverse possession. The defendants have not preferred any appeal against the judgment and decree dated 22.4.1989 vide Exts. P-7 and P-8 in this Court. Rather, it was the plaintiffs who have filed RSA No. 292 of 1989 in this Court. Moreover, Piar Chand, DW-1 in his cross-examination, has admitted that the defendants were found as trespassers over the suit property. He also admitted that the defendants did not purchase the suit property from the owners at any point of time. Sushil Kumar, DW-2 was even not aware as to who was the owner of the suit land. He has feigned ignorance as to in what capacity defendants were in possession of the suit land. Mohinder Singh, DW-3 stated in his cross-examination that defendant No. 1 had constructed a shop over the suit property about 10-12 years back. Thus, it is conclusively proved that the defendants have raised the construction on the suit land. 16. The plaintiffs have also proved revenue record i.e. Ext. Mohinder Singh, DW-3 stated in his cross-examination that defendant No. 1 had constructed a shop over the suit property about 10-12 years back. Thus, it is conclusively proved that the defendants have raised the construction on the suit land. 16. The plaintiffs have also proved revenue record i.e. Ext. P-1, P2, P-3, copies of Jamabandis and Missal Haquiat Bandobast. The report of Local Commissioner has duly been proved by V.P. Singh, PW-3. The Courts below have correctly appreciated the oral as well as documentary evidence available on record. The plea of adverse possession raised by defendants is also hit by principles of res judicata since the issues of tenancy and adverse possession have already been rejected by the learned Courts below in Civil Suit No. 4 of 1985 and civil appeal bearing No. 66 of 1985 and by this Court in RSA No. 292/1989. 17. The possession of the defendants over the suit land was merely that of trespasser. There is no merit in the contention of Mr. Ajay Sharma, Advocate that previously, the plea of tenancy was raised and now the plea of adverse possession has been raised. It is reiterated at the cost of repetition that these questions have already been dealt with by the Courts, as noticed hereinabove. The substantial questions of law are answered accordingly. 18. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending applications, if any.