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2017 DIGILAW 1023 (HP)

Raj Kumar v. Gian Singh

2017-09-05

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. By way of instant Regular Second Appeal under Section 100 of the Code of Civil Procedure, challenge has been laid to judgment and decree dated 24.5.2007 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 23- J/XIII/2004, affirming judgment and decree dated 16.12.2003 passed by learned Civil Judge (Junior Division), Jawali, District Kangra, Himachal Pradesh in Civil Suit No. 122 of 1997, where by suit having been filed by the appellant-plaintiff (here in after, ‘plaintiff’) for possession, came to be dismissed. 2. Necessary facts, as emerge from the record are that the plaintiff filed a suit for possession of land comprised in Khata No. 203, Khatauni No. 257, Khasra No. 165, measuring 0-04- 62 Hectares, as described in the copy of Jamabandi for the year 1993-94, situate in Muhal Jagnoli, Mauza Junat, Tehsil Fatehpur, District Kangra, Himachal Pradesh (here in after, ‘suit land’). Plaintiff averred in the plaint, that he alongwith others was in possession of the suit land previously but, during settlement operations, defendant, in connivance with the revenue officials) procured entry in the column of possession and thereafter, forcibly took possession of the suit land in the first week of April, 1985, without the consent of the plaintiff and other cosharers, as such, his possession over the suit land was illegal, wrongful and that of a ‘trespasser’. Plaintiff also alleged in the plaint that the defendant has got no right, title or interest over the suit land in any manner and since the defendant failed to accede to the requests of the plaintiff to admit the possession of the plaintiff and other cosharers as owner, and to vacate illegal possession over suit land, he was compelled to file suit. 3. Defendant, by way of written statement, resisted afore said claim of the plaintiff taking specific objection with regard to maintainability, estoppel, non-joinder of necessary parties, cause of action and limitation etc. On merits, defendant specifically pleaded that he was entitled to become owner of suit land, in terms of agreement to sell dated 11.8.1980, which was executed by the father of the plaintiff. On merits, defendant specifically pleaded that he was entitled to become owner of suit land, in terms of agreement to sell dated 11.8.1980, which was executed by the father of the plaintiff. Defendant while specifically denying the averments made by the plaintiff, contended before the learned Court below that the suit land was agreed to be sold in favour of defendant vide agreement to sell dated 11.8.1980 and total amount of sale consideration was received by the parties and possession was delivered to the defendant. Defendant also alleged in the written statement that the plaintiff has not approached the Court with clean hands and suppressed material facts from the Court and intentionally not disclosed factum with regard to agreement to sell inter se parties. Defendant further stated before the court below that since he had paid full and final consideration in terms of agreement to sell dated 11.8.1980, plaintiff may be asked to execute the sale deed in favour of the defendant as agreed vide terms and conditions contained in the agreement. 4. By way of replication, plaintiff reasserted his claim and specifically denied the averments made in the written statement. It may be noticed here that, in the replication, plaintiff, for the first time, pleaded that no agreement to sell was ever executed by any of the owners of the suit land on 11.8.1980, as alleged by the defendant. Plaintiff, specifically pleaded in the replication that defendant is not legally entitled to get the sale deed executed in his favour from the owners of land as per agreement. Plaintiff further claimed in the replication that the defendant failed to get the sale deed executed in his favour despite the fact that one of the party to the agreement to sell, namely Shri Udham Singh, was ready and willing to perform his part of agreement. Plaintiff further pleaded that the money received by Udham Singh was returned to the defendant and thereafter, defendant again entered into agreement with Shri Udham Singh, for management of land of his share on 20.11.1981, wherein, he had agreed to vacate land as and when required by the owners. Plaintiff further claimed in the replication that construction on the suit property by the defendant was raised with the material supplied by said Udham Singh and possession, if any, of defendant is that of a trespasser, without any right, title or interest. Plaintiff further claimed in the replication that construction on the suit property by the defendant was raised with the material supplied by said Udham Singh and possession, if any, of defendant is that of a trespasser, without any right, title or interest. On the basis of the aforesaid pleadings, learned trial Court, framed following issues: “1. Whether the plaintiff along with other co-sharers is owner of the suit land, and the defendant forcibly took possession of the suit land in the first week of April, 1985 and raised structure of house over a part of the suit land, as alleged? OPP. 2. Whether the suit is not maintainable in the present form, as alleged? OPD 3. Whether the plaintiff is estopped by shi act and conduct to file the present suit, as alleged? OPD 4. Whether the suit is bad for non-joinder of the necessary parties, as alleged? OPd 5. Whether the defendant is owner of the suit land by way of agreement dated 11.8.80, as alleged? OPD 6. Whether the plaintiff has no cause of action against the defendant, as alleged? OPD 7. Whether the suit is barred by limitation, as alleged? OPD. 8. Relief.” 5. Learned trial Court, subsequently, vide judgment and decree dated 16.12.2003, dismissed the suit of the plaintiff. Plaintiff being aggrieved and dissatisfied with the judgment and decree passed by learned trial Court, preferred an appeal under Section 96 of the Code of Civil Procedure in the Court of learned District Judge, Kangra at Dharamshala, which came to be registered as Civil Appeal No. 23-J/XIII/2004. However, the fact remains that aforesaid appeal was dismissed, as a result of which, judgment and decree dated 16.12.2003 passed by learned trial Court, came to be upheld. In the aforesaid background, present Regular Second Appeal came to be filed by the plaintiff before this Court, praying therein for setting aside judgments and decrees passed by learned Courts below. 6. This Court, vide order dated 13.8.2009, admitted the instant Regular Second Appeal, on the following substantial question of law: “Whether the findings of the Court below are result of complete misreading, misinterpretation of the evidence and material on record and against settled position of law?” 7. I have heard the learned counsel for the parties and gone through the record carefully. 8. I have heard the learned counsel for the parties and gone through the record carefully. 8. During proceedings of the case, this Court had an occasion to peruse the pleadings and evidence adduced on record by the respective parties vis-à-vis impugned judgments and decrees passed by the Courts below, perusal whereof, certainly does not persuade this Court to agree with the contentions/submissions having been made by the Ms. Ruma Kaushik, learned counsel representing the plaintiff that the learned Courts below misread, misinterpreted and misconstrued the evidence adduced on record by the plaintiff, while dismissing the suit of the plaintiff for possession, rather, this Court, after having carefully perused the evidence led on record by the respective parties, has no hesitation to conclude that both the learned Courts below have dealt with each and every aspect of the matter meticulously and there appears to be no scope of interference especially in view of concurrent findings of facts and law recorded by learned Courts below. 9. Interestingly, in the instant case, plaintiff while filing suit for possession never disclosed factum with regard to execution of agreement to sell qua the suit land. Defendant, in his written statement, while refuting claim put forth by the plaintiff in the plaint, specifically pleaded that agreement to sell was executed by the owner of the suit land on 11.8.1980 and full amount of consideration i.e. Rs.3,000/- was paid to the original owner and in lieu of that, possession qua the suit land was delivered to the defendant. It is for the first time, that the plaintiff in the replication accepted that agreement to sell dated 11.8.1980 was executed in favour of the defendant by one Shri Udham Singh, i.e. father of the plaintiff, but since one of the party to the agreement to sell, i.e. defendant, was not ready and willing to perform his part of agreement, sale deed could not be executed. Plaintiff specifically admitted in the replication that money was received by Udham Singh, who happened to be father of plaintiff, but same was subsequently returned. Plaintiff specifically admitted in the replication that money was received by Udham Singh, who happened to be father of plaintiff, but same was subsequently returned. Afore said specific plea with regard to execution of agreement to sell as made by plaintiff, in the replication, certainly amounts to admission on the part of the plaintiff with regard to specific averment contained in the written statement that suit land was agreed to be sold in terms of agreement to sell dated 11.8.1980, for a total sale consideration of Rs.3,000/-. Factum with regard to payment of consideration as referred above, also stands acknowledged in the replication filed by the plaintiff. In the replication, plaintiff came out with altogether new plea that defendant had entered into agreement with his father Udham Singh, for the management of land of his share on 20.11.1981, Ext. PA and thereby he had agreed to vacate the land as and when required by the owners but, unfortunately, aforesaid document was never produced at the time of filing of the plaint rather, that was produced at the time of evidence, as such, Courts below have rightly not placed any reliance upon the same. 10. Plaintiff Raj Kumar, while deposing as PW-1 reiterated that the suit land remained in possession and ownership of the plaintiff and other cosharers but, aforesaid deposition is not only contrary to the averments made in the plaint, rather, same is contrary to the statements of other witnesses adduced on record by the plaintiff, who categorically stated before the court below that possession was with the defendant, for the last 15-16 years, who had constructed his house over the suit land. As per PW-1, defendant forcibly took possession of the suit land during settlement operations, but in the same breath, he stated that defendant was engaged by plaintiff and other cosharers for looking after suit land and other land, meaning thereby, if, for the sake of arguments, it is accepted that suit land was handed over to the defendant for cultivation, plea of the plaintiff that he is in possession of suit property, can not be accepted being contrary to the averments contained in the plaint as well as replication, as have been taken note above. 11. Apart from this, PW-1 specifically denied that Udham Singh, Attro Devi, Bhagwan Dass, Balwant Singh and Kamal Singh, entered into agreement to sell the land to the defendant on 11.8.1980. 11. Apart from this, PW-1 specifically denied that Udham Singh, Attro Devi, Bhagwan Dass, Balwant Singh and Kamal Singh, entered into agreement to sell the land to the defendant on 11.8.1980. He also denied that possession of suit land was delivered to the defendant after execution of agreement to sell, but, interestingly, none of the above named persons were cited as witness to prove the aforesaid factum, if any, with regard to non-execution of the agreement to sell. It appears from the judgment passed by the learned court below that Udham Singh, who had allegedly executed agreement to sell, was not capable of making statement but, there is no explanation worth the name available on record, for non-examination of other persons, namely Atro Devi, Bhagwan Dass, Balwant Singh and Kamal Singh, as such, learned Court below rightly has drawn adverse inference against plaintiff for withholding best piece of evidence. It also came in the statement of PW-1 that his father repeatedly asked respectable persons of the village to ask the defendants that why he was raising construction on suit land and at that time, it was assured by the defendant that he will reside for some time and thereafter, he will leave the place. Aforesaid version put forth by the plaintiff is not believable. If there was no agreement to sell, how the plaintiff could allow defendant to raise construction on the suit land, that too merely on the assurance that after some time, defendant will leave the place. Aforesaid statement having been made by the plaintiff clearly establishes the factum of possession of defendant over the suit land, rather, this Court, after having carefully perused evidence adduced on record by the plaintiff himself, has no hesitation to conclude that after execution of agreement to sell, dated 11.8.1980, defendant, well under the nose of the plaintiff, raised construction over the suit land, which was never objected to by the plaintiff or other cosharers. 12. PW-2 Piar Singh also stated that agreement to sell, Ext. P1 was executed at Fatehpur before the Executive Magistrate and agreement was scribed by one Ramesh Chand. As per this witness, defendant Udham Singh had signed agreement. In his cross-examination, he feigned ignorance with regard to Khasra numbers, which were made part of the agreement/Ikrarnama. 12. PW-2 Piar Singh also stated that agreement to sell, Ext. P1 was executed at Fatehpur before the Executive Magistrate and agreement was scribed by one Ramesh Chand. As per this witness, defendant Udham Singh had signed agreement. In his cross-examination, he feigned ignorance with regard to Khasra numbers, which were made part of the agreement/Ikrarnama. In his cross-examination, he admitted that Gian Singh, (defendant), constructed his house 15-16 years ago and neither Raj Kumar nor his father or brothers, ever objected to the construction raised by the defendant in their presence. He also feigned ignorance to the fact that right from the year 1980 till that date, defendant is in possession of the suit land. 13. DW-1 Dharam Singh deposed before the Court below that he purchased the suit land from Udham Singh and since sale consideration of Rs.3,000/- was paid, he was delivered possession of suit land in 1980 and thereafter, he constructed his two-rooms house by spending Rs.50,000/-. He also stated in the statement before the court below that when he was raising construction, neither Udham Singh nor the family members of plaintiff objected to the construction. He also stated that plaintiff never objected to the possession of the defendant right from the year 1980 till the date of filing of suit i.e. 1997. It has specifically come in his statement that he repeatedly requested Udham Singh to get the sale deed executed but every time, he was assured that sale deed would be executed at right time. Cross-examination conducted on this witness nowhere suggests that plaintiff was able to shatter his testimony, rather, careful perusal of cross-examination conducted on this witness, clearly suggests that the defendant stuck to his statement, which he had made during his examination-in-chief. In his cross-examination, he denied that during the settlement operations in the year 1985, he forcibly occupied suit land. 14. Defendant also produced one Dharam Singh (DW-2), who also supported the version put forth by DW-1 that agreement to sell was executed in 1980, whereby Udham Singh and other cosharers agreed to sell 3 Kanal of land for a sum of Rs. 3,000/- to Gian Singh. Aforesaid witness identified signatures on Ext. D1. 14. Defendant also produced one Dharam Singh (DW-2), who also supported the version put forth by DW-1 that agreement to sell was executed in 1980, whereby Udham Singh and other cosharers agreed to sell 3 Kanal of land for a sum of Rs. 3,000/- to Gian Singh. Aforesaid witness identified signatures on Ext. D1. Kartar, who was another marginal witness of the said agreement though in his cross-examination feigned ignorance to the fact that whether name of Kamal Singh was written in the agreement or not, but admitted that money was not handed over to Udham Singh in his presence. Aforesaid admission, if any, on the part of Kartar Singh, may not be relevant in view of candid admission made on the part of defendant with regard to receipt of money. 15. True it is, that plaintiff, in his statement, stated that money was returned to defendant, but aforesaid statement of plaintiff with regard to refund of money proves factum of payment, if any, by the defendant to his father, namely Udham Singh. Apart from statement of plaintiff, none of the plaintiff’s witnesses stated anything specific with regard to refund of money. 16. This Court, after having carefully perused evidence, be it ocular or documentary, adduced on record by the parties, sees substantial force in the arguments of Mr. R.K. Sharma, Senior Advocate that defendant was put into possession of the suit land pursuant to the agreement to sell, Ext. D1 and thereafter construction over the suit land was raised by the defendant with the consent of the plaintiff, who never objected to the construction. Similarly, this Court was unable to lay its hand on any document suggestive of the fact that steps, if any, were taken by the plaintiff or his father, after 1980 till 1997, calling up the defendant to vacate the suit land. It stands duly proved on record that construction was raised on the suit land in 1980, but there is no evidence, be it ocular or documentary, adduced on record that notice, if any, was ever issued by the plaintiff to the defendant during aforesaid period, calling upon the defendant to hand over possession of the suit land. 17. Undisputedly, perusal of documentary evidence i.e. copy of Jamabandi for the year 1993-94, Ext. P2, copy of Misal Hakiat Istemal for the year 1989-90, Ext. P3, Copy of Misal-Hakiat-Bandobast, for the year 1994-95, Ext. 17. Undisputedly, perusal of documentary evidence i.e. copy of Jamabandi for the year 1993-94, Ext. P2, copy of Misal Hakiat Istemal for the year 1989-90, Ext. P3, Copy of Misal-Hakiat-Bandobast, for the year 1994-95, Ext. P4 and copy of Jamabandi for the year 1975-76, Ext. P5 suggests that plaintiff is owner of suit land, but perusal of Exts. P2 to P4, reflect defendant to be Kabiz/in possession over the suit land. If the stand taken by the defendant in the written statement, is perused/analyzed, it is none of the case of the defendant that he has become owner of the suit land, rather, his consistent stand is that Udham Singh, father of the plaintiff, had executed agreement to sell, qua suit land and he was put into possession by him, after receiving full and final payment of consideration amount i.e. Rs.3,000/-. Defendant, in his written statement, categorically pleaded that the plaintiff be asked to execute the sale deed in terms of agreement to sell, executed by the father of the plaintiff. 18. Before deciding the appeal, this Court also deems it necessary to deal with the specific objection raised by the learned counsel representing the respondent with regard to maintainability and jurisdiction of this Court, while examining correctness of the concurrent findings of facts recorded by the Courts below. Mr. R.K. Sharma, learned Senior Advocate, while inviting the attention of this Court to the judgment passed by Hon’ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264 , contended that the present appeal deserves to be dismissed. The Hon’ble Supreme Court in the aforesaid judgment has held as under: “16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’ right cannot be granted. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’ right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.” (p.269) 19. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-appreciating the evidence available on record, but as emerges from the case referred above, there is no complete bar for this Court to upset the concurrent findings of the Courts below, if the same appears to be perverse. However, in the instant case, findings returned by the learned Courts below, appear to be based upon proper appreciation of evidence as well as law, and as such, by no stretch of imagination, findings of the learned Courts below can be termed to be perverse, as such, this Court sees no reason to interfere with the concurrent findings of facts recorded by Courts below. 20. Hence, this Court sees no illegality or infirmity in the findings of the learned Courts below, that possession of defendant is permissive and not that of an encroacher. Admittedly, plaintiff was not a party to the agreement to sell, Ext. D1 and defendant has also not raised plea of extinction of plaintiff’s right. Plaintiff was a cosharer along with others, who have executed agreement to sell in favour of the defendant. Admittedly, plaintiff was not a party to the agreement to sell, Ext. D1 and defendant has also not raised plea of extinction of plaintiff’s right. Plaintiff was a cosharer along with others, who have executed agreement to sell in favour of the defendant. Defendant being in settled possession of suit land, only remedy available to the plaintiff was to file a suit for joint possession or partition of land, which has not been done by the plaintiff, rather he preferred to file suit for possession, that too without arraying other co-sharers as defendants in the suit, thus, the learned trial Court, rightly dismissed the suit for possession filed by the plaintiff. 21. In view of detailed discussion made herein above, this Court sees no valid reason to interfere with judgments and decrees passed by learned Courts below, which otherwise appear to be based upon correct appreciation of evidence adduced on record by the respective parties. This Court, is not persuaded to accept the contention of learned counsel representing the plaintiff that learned Courts below, while dismissing the suit of the plaintiff, misread, misinterpreted or misconstrued the evidence, as such, substantial question of law is answered accordingly. 22. In view of detailed discussion made herein above, this Court finds no merit in the appeal, which is accordingly dismissed. Judgment and decrees passed by both the learned Courts below are upheld. 23. Pending applications, if any, are disposed of. Interim directions, if any, are also vacated.