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2017 DIGILAW 1440 (HP)

Birbal v. Sansar Singh

2017-12-22

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed by the appellant/defendant against the verdict recorded by the learned First Appellate Court, whereby, it reversed the judgment and decree rendered by the learned trial Court, whereby, the latter Court, had, dismissed the plaintiffs' suit. 2. Briefly stated the facts of the case are that the plaintiffs have filed the suit for possession of the land, comprising Khata No.24 min, Khatauni No.62 min, Khasra No.559/2, measuring 0-03-46 HM, situated in Tika Thana, Mauza Pandrehd, Tehsil Nurpur, District Kangra, H.P. It is averred that the aforesaid suit land is in illegal and un-athorised possession of the defendant. Earlier the suit land was measuring 0-04-10 HM, out of which 0-00-64 HM, land has been transferred in favour of the State of H.P. as per mutation No.97 and the suit land is now measuring 0-03-46 HM. It is alleged that in the year 1983-84, during the settlement operation, the predecessor of the defendant got himself recorded as Kabaz over the suitland, in collusion with the settlement officials illegally and thereafter took possession of the suit land in the month of June, 1998 without the consent and at the back of the plaintiffs. It is averred that the defendant was never inducted as tenant nor allowed to cultivate the suit land in any capacity. The defendant has been asked several times to admit the claim of the plaintiff, but to no avail. Hence the suit. 3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections qua maintainability of the suit, cause of action, locus standi, estoppel etc. It is claimed that the defendant has become owner of the suit land by way of adverse possession as he has been in possession of the same since 1965 and his possession is open, hostile and even during the consolidation in the month of October, 1984 and he has become absolute owner in September, 1996 and the plaintiff has lost the right in the suit land. On merit, the claim of the plaintiff has been denied. It is alleged that the defendant has become owner of the suit land by way of adverse possession. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiffs are entitled for the possession of the suit land, as allege? OPP. 2. It is alleged that the defendant has become owner of the suit land by way of adverse possession. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiffs are entitled for the possession of the suit land, as allege? OPP. 2. Whether the suit is not maintainable? OPD. 3. Whether the defendant has become owner of the suit land by way of adverse possession? OPD. 4. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, dismissed plaintiffs'/respondents' suit. In an appeal, preferred therefrom by the plaintiffs/respondents herein before the learned First Appellate Court, the first Appellate Court allowed the appeal and reversed the findings recorded by the learned trial Court. 6. Now the defendant/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein, he assails the findings recorded, in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 11.09.2009, this Court, admitted the appeal instituted by the defendant/appellant, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether in the facts and circumstances of the case, appellant-defendant had proved that he was in adverse possession of the land in question? Substantial question of Law No.1. 7. The defendant, has, resisted the plaintiffs' suit, by espousing in his written statement instituted thereto, a plea of his acquiring title to the suit land, by way of prescription, arising, from (a) his predecessor-in-interest with an animus possedendi, holding possession, of the suit land, since 1965 onwards, (b) with the concomitant knowledge of the plaintiffs. The plaintiffs, had, in his plaint reared a plea of the defendant forcibly, usurping, their possession upon the suit land, especially in the year 1998. However, the aforesaid plea is benumbed by Ex. D-4, Ex.D-5, Ex. D-6 and Ex. D-7, exhibits whereof are khasra girdwaries, appertaining, to the suit land, AND theirs purportedly commences from 1984 and last uptill 1998, wherein the defendant is shown to be cultivating the suit land. A presumption of truth is enjoyed by entries borne, in the aforesaid exhibits, theirs, comprising revenue records, yet plaintiffs' adduced, no, cogent evidence, for dislodging the presumption of truth enjoyed by the aforesaid reflections, borne in the afore referred exhibits. A presumption of truth is enjoyed by entries borne, in the aforesaid exhibits, theirs, comprising revenue records, yet plaintiffs' adduced, no, cogent evidence, for dislodging the presumption of truth enjoyed by the aforesaid reflections, borne in the afore referred exhibits. Consequently, the reflections borne in Ext. D4 to Ex. D-7, qua the defendant cultivating the suit land, hence, enjoy conclusivity. 8. Despite, imputing conclusivity vis-a-vis the apposite reflections, borne, in the afore referred exhibits, reflections whereof, pronounce, upon, the factum of the defendant, cultivating the suit land, would not per se render any befitting ensuing conclusion, of, the defendant also proving the pleaded fact, reared in his written statement of (a) his predecessor in interest, since 1964, with an animus possedendi AND openly with the knowledge, of the plaintiff, upto now holding, possession of the suit land, hence, with more than 11 years, elapsing since 1974 upto now, his hence perfecting his title by prescription vis-a-vis the suit land. Preponderantly, the defendant was also enjoined to render testifications, in consonance therewith. However, in his testification borne in his examination-in-chief, he has in contradistinction therefrom, meted, articulations of his father with an animus possedendi, rather commencing, in the year 1974, hence, his possession upon the suit land. The aforesaid inter se rife contradiction, occurring, in the apposite contention reared by the defendant in his written statement, vis-a-vis the testification rendered on oath before the learned trial Court, contrarily, gets an inference of (a) it being discardable also (b) it being construable to be not proven, (c) even if there is an admission borne, in the cross-examination, of the plaintiff, of, during the course of holding of settlement operations in the mohal concerned, operations whereof were held, in the year 1983-1984, the defendant being detected, to be holding possession of the suit land, yet effect thereof does not galvanize any inference of (i) prior thereto possession, if any, upon the suit land, as held by the predecessor-in-interest of the defendant, also carrying, the necessary trait, of, its being within the knowledge, of the plaintiff, especially when no apposite revenue records pronouncing the aforesaid factum, stand adduced, into evidence. 9. Be that as it may, even if, the plaintiff has been unable to rebut the entries, borne, in khasra girdawries, comprised in Ex.D-4 to Ex. 9. Be that as it may, even if, the plaintiff has been unable to rebut the entries, borne, in khasra girdawries, comprised in Ex.D-4 to Ex. D-7 also has been unable to rebut the presumption of truth enjoyed by the aforesaid khasra girdawaries, prepared with respect to the suit land, preparation of khasra girdawaries whereof, commence from the year 1984 onwards, (i) entries whereof, pronouncing, the defendant cultivating the suit land, (ii) yet reiteratedly, theirs standing prepared, in sequel to the settlement operation, held, in the mohal concerned, (iii) besides when they, do not appertain, to any period of time prior thereto, (iv) especially when they do not appertain, to the pleadings, borne, in the written statement, of the defendant's predecessor-in-interest, with an animus possedendi, commencing possession, of, the suit land since 1965, (v) thereupon, even if, the khasra girdwaries personify, of the defendant cultivating the suit land since the year 1984 onwards AND despite the aforesaid echoings occurring in the aforesaid exhibits, since 1984, (vi) yet the plaintiffs omitting, to, within 12 years therefrom, institute a suit would not bar them to reclaim possession thereof, for the reasons, (a) of with this Court concluding of the defendant being unable to efficaciously, prove, the trite factum, of, his perfecting title by prescription upon the suit land, (b) the continuity of the illegal possession held by the defendant upon the suit land, since, the year 1984, rendered enlivened since then, upto, the institution of the suit, a continuous proven cause of action vis-a-vis, the plaintiffs for leveraging therein, to claim possession of the suit land and (c) also with no issue apposite tot he suit being barred by limitation being either struck or evidence being adduced thereupon, nor any findings being rendered thereon, constrain this Court, to, conclude of the cause of action, as propounded by the plaintiff, in the plaint, for reclaiming possession of the suit land, hence rendering it, fall within the prescribed period of limitation. 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. Consequently, the substantial question of law is answered in favour of the plaintiffs/respondents and against the defendant/appellant. 11. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Consequently, the substantial question of law is answered in favour of the plaintiffs/respondents and against the defendant/appellant. 11. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgment and decree rendered by the learned first Appellate Court in Civil Appeal No. RBT No.2-N/VII/05/04 is maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back.