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2017 DIGILAW 1100 (HP)

Prema v. Surat Ram

2017-09-21

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The plaintiffs instituted a suit claiming therein a decree for permanent prohibitory injunction besides a decree for possession being pronounced in respect of the suit land vis-a-vis the defendants. The learned trial Court declined relief of possession to the plaintiff, whereas, it proceeded to decree the suit of the plaintiff in respect of relief of permanent prohibitory injunction. The defendants being aggrieved therefrom, instituted an appeal before the learned First Appellate Court, the latter Court allowed the appeal, whereupon, it reversed the judgment and decree pronounced by the learned trial Court. Being aggrieved therefrom, the plaintiff 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 plaintiff is owner in possession of the land measuring 1-10 bighas bearing Khasra No. 110/10, Khata/Khatauni No.34/45, situated in Village Kurnwari, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter called as the suit land). The defendants had no right, title or interest in the suit land. On 8.2.1994, the defendants had started digging the suit land and cutting trees therefrom and thereby threatened to dispossess the plaintiff from the suit land. The plaintiff had requested them to stop interference with his possession over the suit land, but to of no avail. Hence, he had brought the suit against them. 3. The defendants contested the suit and filed written statement as well counter claim against the plaintiff for declaration that they had become owners of land measuring 0.2 biswa bearing Khasra No.110/10/1 and 0.9 biswas bearing khasra No.110/10/2, by way of adverse possession. The defendants have assailed the suit of the plaintiff on preliminary objection such as non joinder of necessary parties, locus standi, estoppel, valuation of suit and limitation. On merits, they had pleaded that the dispute between the parties had arisen on the basis of demarcation carried out by Tehsildar Ghumarwin, who had shown khasra No.110/10/1, measuring 0.2 biswas and Khasra No.110/10/2, measuring 0.9 biswas in possession of the defendants. Second demarcation was again conducted on 20.06.1984 and the said land was not found in possession of the plaintiff. It is also alleged that the aforementioned area of 0.11 biswas is part of land of defendants bearing khasra No.15, situated adjoining the suit land thus the defendants were owners in possession of the same. Second demarcation was again conducted on 20.06.1984 and the said land was not found in possession of the plaintiff. It is also alleged that the aforementioned area of 0.11 biswas is part of land of defendants bearing khasra No.15, situated adjoining the suit land thus the defendants were owners in possession of the same. It is also alleged that in case the defendants are not held to be owners of land measuring 0.2 biswas and 0.9 biswas bearing khasra No. 110/10/1 and 110/10/2 respectively, then they had become owners thereof by adverse possession. In nutshell the defendants refuted case of the plaintiff and claimed themselves to be owners of land measuring 0-11 biswas shown by khasra NO.110/10/1 and 110/10/2 and they had prayed that their counter claim be decreed and the suit of the plaintiff be dismissed. 4. The plaintiff/appellant herein filed replication to the written statement of the defendants/respondents as well as written statement to the counter claim, wherein, the plaintiff denied the contents of the written statement as also of the counter claim 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 plaintiff is entitled for the relief of permanent injunction, as alleged? OPP. 2. Whether the plaintiff is entitled for the relief of possession in alternative? OPP. 3. Whether the suit is bad for non joinder of necessary parties? OPD. 4. Whether the plaintiff has no locus standi to file the present suit? OPD. 5. Whether the plaintiff is estopped to file the present suit? OPD. 6. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD. 7. Whether the suit is barred by limitation? OPD. 8. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/appellant herein for permanent prohibitory injunction. In an appeal, preferred therefrom by the defendants/respondents herein before the learned First Appellate Court, the latter Court allowed the appeal and reversed the findings recorded by the learned trial Court. 7. Now the plaintiff/appellant herein, has 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. 7. Now the plaintiff/appellant herein, has 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 23.01.2006, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the impugned judgment and decree passed by the lower appellate Court is not sustainable in the eyes of law being passed totally perverse to the evidence oral as well as documentary on the record? 2. Whether the findings of the lower appellate Court are not legally sustainable specially when the defendants have taken specific plea that they have become owner in possession of the suit land by way of adverse possession. Therefore, the findings of the lower appellate court that the factum of interference on behalf of the defendants have not been proved are totally wrong and illegal? Substantial questions of Law No.1 and 2: 8. The learned trial Court had meted deference, to the admissions borne in the pleadings comprised in the written statement of the defendants, admissions whereof unveils qua, demarcation, in respect of the suit land being conducted by the Tehsildar concerned, in sequel whereto, the apposite report being prepared by him, with displays therein of Khasra No.110/10/1,measuring 0.2 biswas and Khasra No.110/10/2 measuring 0.9 biswas, being, possessed by the defendants. However, the effect of the aforesaid admissions, occurring in the pleadings constituted in the written statement of the defendants, was, scuttled by the learned First Appellate Court, on, anvil of the demarcation report(s) prepared by the demarcating Officer(s) concerned, remaining not proven in Court. Even though, the aforesaid reason(s) assigned by the learned First Appellate Court, for scuttling the effect of the aforesaid admission(s) constituted in the written statement, of, the defendant(s) qua validity of the previous demarcation conducted by the Tehsildar concerned, besides with respect to a pronouncement therein, of the defendants holding possession of khasra Nos. 110/10/1 and 110/10/2, also holding veracity, may beget, detraction of the trite principle of admissions in pleadings constituting estoppel vis-a-vis the litigants concerned. 110/10/1 and 110/10/2, also holding veracity, may beget, detraction of the trite principle of admissions in pleadings constituting estoppel vis-a-vis the litigants concerned. However, the tenacity of the further reason assigned by the learned first Appellate Court, for, imputing solemnity to the report of the demarcating Officer, tendered before the learned First Appellate Court, tendering(s) whereof occurred in pursuance, to an order recorded on 5.4.2005 by the learned First Appellate Court, whereby, Tehsildar, Ghumarwin was appointed as a Local Commissioner, for his thereafter holding demarcation(s) of the contiguous estates of the litigating parties, is, to be gagued from the trite factum of whether the aggrieved thereupon rearing objections in respect thereto or seeking cross- examination of the Tehsildar concerned. In case, the Tehsildar, Ghumarwin concerned, who, after holding demarcation of the contiguous estates of the litigating parties, through the ADA concerned, hence, produced his apposite report before the learned First Appellate Court, yet when thereat no objections in respect thereto, stood reared by the aggrieved therefrom, thereupon the inevitable conclusion warranting an apt derivation, would be, of all the litigating parties accepting the veracity of all the recitals borne in the apposite report. 9. For gauging, whether subsequent to 29.06.2005, whereat, the demarcating officer enabled the tendering of his demarcation report before the learned First Appellate Court, the aggrieved therefrom made any protest or raised objections in writing before the learned First Appellate Court, an advertence to the order sheets recorded subsequent thereto, is imperative. An allusion to the order sheets recorded subsequent to 29.06.2005, whereat the demarcating officer enabled tendering of his report before the learned First Appellate Court, unveils, of the aggrieved therefrom neither rearing any objections in respect of the recitals borne therein nor his making submissions before the learned First Appellate Court in respect of elicitation of the presence of the demarcating officer concerned being ordered by the learned First Appellate Court, for his hence proving its contents also for the aggrieved thereupon being facilitated to hold him to cross-examination, for his thereupon testing the trite factum of his conducting the demarcation in accordance with law also for his testing the veracity (ies) of all recitals borne therein. Consequently, want of the aforesaid apposite endeavours by the aggrieved, constrains this Court to record with aplomb, a firm conclusion, that both the contesting parties accepted all the recitals borne therein, wherefrom, it is befitting to conclude that the trite factum borne therein of the defendants, not, encroaching upon any portion of the suit land, concomitantly, acquiring firm vigour. Corollary of the aforesaid inference is that hence the effect of the admissions of the defendants constituted in their written statement, wherein, they accept the factum of a valid demarcation being conducted in respect of the suit property also the further admission of the defendants being found in possession of the suit kahsra numbers, not, operating as estoppel vis-a-vis them, nor thereupon, the plaintiffs being entitled to a decree for permanent prohibitory injunction nor for a decree of possession. Importantly, when the effect thereof, for all the aforestated reasons, is shred of its tenacity, by, the un-controverted apposite report tendered besides enabled to be tendered by the Tehsildar Gumarwin, who stood appointed as a Local Commissioner under orders recorded by the learned First Appellate Court on 5.4.2005. 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, both 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 Additional District Judge, Ghumarwin, District Bilaspur, H.P., in Civil Appeal No. 263/13 of 2004/2000, on 24.10.2005, are maintained and affirmed. All pending applications also stand disposed of. No order as to costs.