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2017 DIGILAW 1099 (HP)

Madhu Bala v. State of H. P.

2017-09-21

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The plaintiffs instituted a suit claiming therein a decree of declaration and of permanent prohibitory injunction being pronounced in respect to the suit land vis-a-vis the defendants. The learned trial Court decreed the suit of the plaintiff in respect of reliefs claimed therein. The defendant being aggrieved therefrom, instituted an appeal before the learned First Appellate Court, the latter Court partly allowed the appeal, to the extent that the declaratory decree qua the plaintiffs acquiring prescriptive title to the suit land, by elapse of the statutorily mandatory period of limitation, warranting its being quashed and set aside, however, relief of injunction was affirmed. Being aggrieved therefrom, the plaintiffs instituted the instant appeal before this Court, wherein, reversal of the verdict pronounced by the learned First Appellate Court, is strived. 2. Briefly stated the facts of the case are that the land along with a building comprising in Kh. No.997 and 998 which appear to have been carved out of old Kh. No.326, measuring 67.45 sq. meters, situate in revenue village Sarahan Kalan, Tehsil Pachad, District Sirmaur, H.P. It is averred that earlier Kh. No.326 measuring 19 biswas was recorded in the ownership of His Highness Sirmaur. It was in possession of Mahkama District Board as per copy of Misal Hakiyat, 1987-88 Samvat. Thereafter, by an oral sale, Rulia Ram purchased the suit property. He having died was succeeded by his legal representatives Bagwati and Parvati, being daughters. During his life time, Ruila Ram partitioned his purchased suit property in two parcels. Thereafter, Parwati gifted the suit property in favour of Devinder Parkash on 20.05.1957. Devinder Parkash having died, the plaintiffs are his successor-ininterest being widow and minor son respectively. Plaintiffs' further case is that on 14.8.1978, the predecessors-in-interest of the plaintiffs denied the title of the defendant and declared that they are owners in possession of the suit property. The plaintiffs thus claim their title on the basis of gift and in the alternative by adverse possession. The plaintiffs also averred that the encroachment proceedings passed by Settlement Officer, Shimla against them are illegal. The revenue entries in favour of the appellant are wrong and illegal. The plaintiffs thus claim their title on the basis of gift and in the alternative by adverse possession. The plaintiffs also averred that the encroachment proceedings passed by Settlement Officer, Shimla against them are illegal. The revenue entries in favour of the appellant are wrong and illegal. As such, they preferred the present suit for declaration seeking to impugn the revenue entries as also order of the Settlement Officer, Shimla dated 6.4.2002 and also for permanent injunction seeking to restrain the defendant from dispossessing the plaintiffs from the suit property. 3. The defendants contested the suit and filed written statement it has taken preliminary objection inter alia maintainability, jurisdiction, estoppel and want of notice. The sale of the suit property by Rulia Ram as also the gift deed by Parwati in favour of Devinder Parkash, predecessor-in-interest of the plaintiffs are denied in toto. It is also denied that the plaintiffs have become owners either on the basis of title or by way of adverse possession. The defendant's case is that, in fact, the predecessor-in-interest of the plaintiffs encroached upon the suit land, therefore, the ejectment proceedings against him were initiated and finalised. 4. The plaintiffs/appellants herein filed replication to the written statement of the defendant/respondent, wherein, they denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the suit land was earlier in the ownership of Sarkar Daulatmandar i.e. His Highness Sirmaur and possession of Mehkama District Board, as alleged? OPP 2. Whether Shri Rulia Ram, the predecessorin-interest of plaintiff has purchased the suit land through oral sale from his Highness Sirmaur, as alleged, if so, its effect? OPP. 3. Whether Smt. Parwati D/o Sh. Rulia Ram had gifted the property in favour of Devinder Parkash, as alleged? OPP. 4. Whether the plaintiffs are entitled to the alternative of adverse possession, as alleged? OPP. 5. Whether the revenue entry in favour of defendant as owner in possession of suit land is illegal, as alleged? OPP 6. Whether order passed by Settlement Collector, Shimla dated 6.4.2002 is illegal, void and without jurisdiction, as alleged? OPP 7. Whether the plaintiffs are entitled to the relief of permanent injunction, as alleged? OPP. 8. Whether the suit is not maintainable? OPD. 9. OPP 6. Whether order passed by Settlement Collector, Shimla dated 6.4.2002 is illegal, void and without jurisdiction, as alleged? OPP 7. Whether the plaintiffs are entitled to the relief of permanent injunction, as alleged? OPP. 8. Whether the suit is not maintainable? OPD. 9. Whether this Court has no jurisdiction to try the present suit, as alleged? OPD. 10. Whether the plaintiffs are estopped to file the present suit by their own act and conduct, as alleged? OPD. 11. Whether the suit is bad for want of notice U/s 80 CPC, as alleged? OPD 12. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom by the defendant/respondent herein before the learned First Appellate Court, the latter Court partly allowed the appeal whereby, it set aside the declaratory decree rendered by the learned trial Court. 7. Now the plaintiffs/appellants herein, have instituted the instant Regular Second Appeal before this Court, 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 18.08.2005, this Court, admitted the appeal instituted by the plaintiffs/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the Lower Appellate Court has acted with material illegality and irregularity in reversing the judgment and decree of trial Court which upheld the claim of the plaintiffs-appellants to have acquired title to the suit property by adverse possession, merely on the ground of non-specifying the precise time of the commencement of the adverse possession? Has not the Lower Appellate Court committed grave error of jurisdiction in ignoring from consideration the registered Gift deed dated 20th May, 1957 on the basis of which the plaintiff- appellants were claiming title to the suit property and possession also? 2. When the plaintiffs-appellants staked their claim of title qua the suit property on the basis of the registered gift deed which remained unchallenged for more than 30 years, has not the lower Appellate Court committed grave error of jurisdiction in rejecting the claim of adverse possession put forth by the plaintiffs-appellants? 2. When the plaintiffs-appellants staked their claim of title qua the suit property on the basis of the registered gift deed which remained unchallenged for more than 30 years, has not the lower Appellate Court committed grave error of jurisdiction in rejecting the claim of adverse possession put forth by the plaintiffs-appellants? Since the validity of the said document was not assailed has not the Lower Appellate Court failed to exercise the jurisdiction in not upholding the claim of the plaintiffs-appellants claiming themselves to be in possession of the suit land as absolute owner? 3. When the possession of the plaintiffs-appellants was duly entered in the revenue records in the capacity of “Mukhtlif Kabjan Najayaj” and admission made by DW-2 that the structure standing on the land in suit was very old, was not it a sufficient proof of the claim of adverse possession? Has not the Lower Appellate Court committed grave error of law in putting unnecessary reliance on the entires in revenue record, presumption of truth attached to which stood duly rebutted, especially when during the course of settlement the old possession of the plaintiffs-appellants was duly acknowledged by the officials of the defendant-respondent? 4. Whether the Lower Appellate Court has further committed an error of law in failing to take into consideration correct proposition of law that the long possession on the basis of an invalid document ripens into adverse possession? 5. Whether the Lower Appellate Court has erred in law in holding the order of ejectment valid when the revenue officials lacked jurisdiction to entertain the proceedings under Section 163 of the H.P. Land Revenue Act on account of the question of title being involved in such proceedings. Substantial questions of Law No.1 to 5: 8. 5. Whether the Lower Appellate Court has erred in law in holding the order of ejectment valid when the revenue officials lacked jurisdiction to entertain the proceedings under Section 163 of the H.P. Land Revenue Act on account of the question of title being involved in such proceedings. Substantial questions of Law No.1 to 5: 8. The declaratory decree rendered by the learned trial Court in respect of the plaintiffs, acquiring prescriptive title vis-a-vis the suit khasra numbers, arising from theirs with the requisite animus possidendi, since their predecessors-in-interest upto the date of the institution of the suit, hence holding, possession thereof, tritely beyond the statutorily mandated period of time, for thereupon their hostile possession ripening into absolute title, is, wanting in legal vigour, for, the reasons-(a) the Hon'ble Apex Court in a catena of decision, emphatically declaring, of any plaintiff being barred from rearing a plea in respect of his acquiring prescriptive title qua the suit property arising from his, with, the requisite animus possidendi, un-intermittently holding possessing thereof for and beyond the statutorily mandated period of time, whereafter, a ripened prescriptive absolute title of ownership, warranting its being declared bestowable upon him. 9. Be that as it may, the verdict pronounced by the learned trial Court upon the aforesaid facet, of, the plaintiff, being entitled for rendition of a decree, for declaration qua his acquiring absolute title qua the suit land by statutory prescription, is not founded upon an appropriate appreciation of the verdicts rendered by the Hon'ble Apex Court besides the verdict in reversal thereto rendered by the learned First Appellate Court, does not, warrant any interference, it being in consonance with the catena of apposite verdicts pronounced by the Hon'ble Apex Court. Reiteratedly, the rearing of the plea of adverse possession by the plaintiffs, hence a declaratory decree of statutory prescriptive title vis-a-vis them, being pronounced, with respect to the suit land also theirs endevouring to prove that by elapse of the statutorily prescribed period, commencing, from 1957 upto the date of institution of the suit, hence, their prolonged possession thereof with the requisite animus possidendi, ripening into prescriptive title vis-a-vis the suit land, is a plea which has been pronounced in a catena of verdicts rendered by the Hon'ble Apex Court, to be unavailable for espousal by the plaintiff rather it being a plea available for espousal only by the defendant. Consequently, with the plaintiffs standing interdicted by a catena of judicial verdicts, to, rear a plea qua theirs acquiring title by adverse possession upon the suit land, hence, thereupon, also the suit of the plaintiff warrants dismissal. 10. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Accordingly, all the substantial questions are answered in favour of the respondents/defendants and against the appellant. 11. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the impugned judgment and decree rendered by the learned District Judge, Sirmaur District at Nahan, H.P. in Civil Appeal No. 10-CA/13 of 2004, on 03.01.2005, is maintained and affirmed. All pending applications also stand disposed of. No order as to costs.