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2017 DIGILAW 522 (HP)

Leela Devi v. Virender Mahajan

2017-05-15

AJAY MOHAN GOEL

body2017
Ajay Mohan Goel, J: By way of this appeal, the appellants have challenged the judgment and decree passed by the Court of learned District Judge, Chamba in Civil Appeal No. 60 of 2002, dated 24.04.2004, vide which learned appellate Court while dismissing the appeal filed by the present appellants, upheld the judgment and decree passed by the Court of learned Sub Judge 1st Class, Dalhousie in Civil Suit No. 45/93, dated 06.08.2002, whereby learned trial Court had decreed the suit of respondents/plaintiffs for possession of Gair Mumkin shop comprised in Khata Khatauni No. 44/55, bearing Khasra No. 434/64/1, out of Khasra No. 434/64, measuring 44 square yards, situated in Mohal Kaswa, Sihunta, Pargana Sihunta, Sub Tehsil Sihunta, Tehsil Bhattiyat, District Chamba, H.P. 3. Brief facts necessary for the adjudication of the present case are that respondents/plaintiffs (hereinafter referred to as “the plaintiffs”) filed a suit praying for a decree of permanent prohibitory injunction for restraining the defendants from interfering in their peaceful possession over the suit land comprised in Khata Khatauni No. 44/55, bearing Khasra No. 434/64/1, out of Khasra No. 434/64, measuring 44 square yards, situated in Mohal Kaswa, Sihunta, Pargana Sihunta, Sub Tehsil Sihunta, Tehsil Bhattiyat, District Chamba and in the alternative, suit for possession if defendants forcibly dispossessed them from the suit land during the pendency of the suit, on the grounds that the plaintiffs were owners in possession of the suit property over which there was a shop measuring 44 square yards denoted by Khasra No. 434/64/1. As per the plaintiffs, defendants were interfering in the ownership and possession of the plaintiffs over the land as well as shop, whereas the defendants were having no right whatsoever over the suit land. It was further the case of the plaintiffs that defendants who were clever and headstrong persons were threatening to raise construction over the suit land and thus were interfering in the peaceful possession of the plaintiffs and despite having been requested not to interfere by the plaintiffs, they were not resisting from interfering with the suit land. It was on these bases that the suit was filed by the plaintiffs. 4. It was on these bases that the suit was filed by the plaintiffs. 4. The claim of the plaintiffs was contested by the defendants, who resisted the suit by stating in the written statement that it was not the plaintiffs, but the defendants who were in possession over the suit land and that the shop in issue in fact was constructed by the defendants. According to the defendants, the possession of the suit land was taken over by their father on 13.02.1969 and thereafter, he had constructed a shop over the same. Further, as per the defendants, as their possession over the suit land was open, peaceful and hostile as to the true owners, they had perfected their title by way of adverse possession. It was further the case of the defendants that as plaintiffs were not in possession over the suit land, hence they have no title over the same. It was further the case of the defendants that as plaintiffs were not in possession over the suit land, they were not entitled for any decree of injunction. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues: “1. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP 2. Whether the father of plaintiff No. 1 gave disputed land to defendant and he constructed a shop over it as alleged, if so its effect: OPD 3. Whether the defendant has become owner of suit property as alleged? OPD 1(A) Whether the LRs. can’t change the stand taken up earlier by the original defendant? OPP 2(A) Whether the suit is time barred as alleged? OPD 2(B) Whether the plaintiffs are stopped from filing the present suit by their own act and conduct? OPD 2(c) Whether the defendants have become owner of the suit land by way of adverse possession and title of the plaintiffs has extinguished by way of afflux of time? OPD 4. Relief? 6. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed: “Issue No. 1 : Yes. Issue No. 2: No. Issue No. 3: No. Issue No. 1(A): Not pressed. OPD 4. Relief? 6. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed: “Issue No. 1 : Yes. Issue No. 2: No. Issue No. 3: No. Issue No. 1(A): Not pressed. Issue No. 2(A): No. Issue No. 2(B): No. Issue No. 2(C): No. Relief: The suit of the plaintiffs is decreed as per operative part of the judgment. 7. While decreeing the suit of the plaintiffs, it was held by the learned trial Court that it was evident from ocular as well as documentary evidence that it were the plaintiffs, who were owners over the suit land and that defendant was having no right, title or interest over the same. Learned trial Court also held that as far as ownership of the plaintiffs over the suit land was concerned, the same was not agitated even by the defendants in the written statement, but the case of the defendants was that they were in possession over the suit land and thus, no decree of injunction could be passed. By placing reliance upon Ex. PA and Ex. PB, learned trial Court returned the findings that it stood proved that plaintiffs were exclusive owners of the suit land. Learned trial Court also held that there was no evidence on record from which it could be inferred that the disputed land was given to defendant Bachitar Singh by the father of plaintiff No. 1 and thereafter the defendant had constructed a shop over the same. It was further held by the learned trial Court that as defendants had stated that they had perfected their title by way of adverse possession, therefore, onus to prove the same was upon the defendants and the defendants had miserably failed to prove that they had become owners of the shop in issue by way of adverse possession. It was further held by the learned trial Court that as the defendants were claiming to have had become owners of the suit land by way of adverse possession and as they had failed to prove their title over the suit land by way of adverse possession, they could not be deemed to be in possession over the suit land in the absence of a valid title. On these basis, learned trial Court decreed the suit for possession so filed by the plaintiffs. 8. In appeal, the judgment and decree so passed by the learned trial Court was upheld by the learned appellate Court. While disallowing the appeal so filed before it by the defendants, it was held by the learned appellate Court that it was settled law that in case a party was staking its claim over the suit land on the basis of adverse possession, then the onus to prove all the ingredients of adverse possession was on that party and in case that failed to establish the ingredients of adverse possession, then possession no matter howsoever long it may be, could not confer ownership. It was held by the learned appellate Court that in fact adverse possession means a hostile possession, express or implied in denial of the title of the true owner and in order to constitute adverse possession, the possession must be adequate in continuity, in publicity so as to show that it was adverse to the true owner. It was further held by the learned appellate Court that defendant did not produce any documentary evidence to prove that the suit property was given to his father by the father of plaintiff No. 1 and thereafter Bachiter Singh had constructed a shop over it. It was further held by the learned appellate Court that though defendant had produced DW-5 Karuna Sagar to prove bills Ex. D- 1 to Ex.D-6, but the said witness had admitted that electricity meter was installed in the name of Bachiter Singh, i.e., father of the defendants only in the year 1993 and on these bases, it was held by the learned appellate Court that at the most these bills proved the possession of Bachiter Singh over the suit property and that too from the year 1993 onwards only, but still defendants had failed to prove that they had become owners of the suit land by way of adverse possession. On these bases, the appeal so filed by the defendants was dismissed by the learned appellate Court. 9. Feeling aggrieved, the appellants/defendants preferred this appeal, which was admitted by this Court on 26.10.2004 on the following substantial questions of law: “1. On these bases, the appeal so filed by the defendants was dismissed by the learned appellate Court. 9. Feeling aggrieved, the appellants/defendants preferred this appeal, which was admitted by this Court on 26.10.2004 on the following substantial questions of law: “1. Whether on the basis of pleadings made in the plaint, the two Courts below have committed an error of law in decreeing the suit of the plaintiff for possession when in the plaint there is no averment that after filing the original plaint the plaintiff has been dispossessed from the suit land/property? 2. Whether writing Ex. DW7/A has been proved in accordance with law and it has been wrongly excluded from evidence by the learned District Judge which has important bearing on the result of the case? 10. I have heard the learned counsel for the parties and have also gone through the records of the case as well as the judgment passed by both the learned Courts below. 11. I will deal with both the substantial questions of law, on which this appeal was admitted independently. Substantial Question of law No. 1: 1. Whether on the basis of pleadings made in the plaint, the two Courts below have committed an error of law in decreeing the suit of the plaintiff for possession when in the plaint there is no averment that after filing the original plaint the plaintiff has been dispossessed from the suit land/property? 12. A perusal of the plaint filed by the respondents/plaintiffs demonstrates that there was an alternative relief prayed for by the plaintiffs in the suit and that relief was for possession of the suit land in case during the pendency of the suit, the defendants were successful in ousting the plaintiffs from the suit land. The contention of the learned counsel for the appellants that both the learned Courts below have committed error of law in decreeing the suit of the plaintiffs for possession when in the plaint there was no averment that after filing of the plaint, the plaintiffs have been dispossessed from the suit property, is misconceived, because it is the very own case of the defendants that they were in possession over the suit land and according to the defendants, they were not only in possession over the suit land, but they had become owners of the same by way of adverse possession. The findings returned by the learned appellate Court to the effect that it stood established on record that Bachiter Singh though was in possession over the suit property, but his possession could be proved only from the year 1993 on wards, could not be proved to the contrary during the course of arguments by the learned counsel for the appellants. Learned counsel for the appellants also could not draw the attention of this Court to any material on record from which it could be inferred that defendants had been able to establish the ingredients of adverse possession. 13. Therefore, as there was an alternative prayer made for possession of the suit land by the plaintiffs and there were findings returned by both the learned Courts below to the effect that records demonstrated that it were the plaintiffs who were owners of the suit land and the possession over the same of the defendants without any title was of no significance, in this background of the matter, in my considered view, no error of law has been committed by both the learned Courts below in decreeing the suit for possession of the suit land in favour of the plaintiffs. This substantial question of law is answered accordingly. Substantial Question of law No. 2: 2. Whether writing Ex. DW7/A has been proved in accordance with law and it has been wrongly excluded from evidence by the learned District Judge which has important bearing on the result of the case? 14. There are concurrent findings returned by both the learned Courts below to this effect that Ex. DW-7/A could not be proved in accordance with law by the defendants. In order to prove Ex. DW7/A, defendants examined Sh. Shreshat Kumar, who entered the witness box as DW-7, who as per the defendants had purportedly scribed the said document. It is a matter of record that during his deposition in the Court, DW-7 could not legally prove the same as the said document admittedly was not signed by him as is the mandate of law. Even otherwise, for the satisfaction of judicial conscious of this Court, it perused Ex. It is a matter of record that during his deposition in the Court, DW-7 could not legally prove the same as the said document admittedly was not signed by him as is the mandate of law. Even otherwise, for the satisfaction of judicial conscious of this Court, it perused Ex. DW7/A and a perusal of the same demonstrated that the said document otherwise also is of no assistance to the defendants, as it cannot be inferred from the said document that it was the shop in dispute which is the reference point of this particular document. 15. In this background, in my considered view, it cannot be said that the conclusion arrived at by both the learned Courts below that defendants failed to prove Ex. DW7/A in accordance with law is a perverse conclusion. On the contrary, as the said document was not duly proved in accordance with law by the defendants, both the learned Courts below have rightly held that as the said document was not legally proved, therefore, no benefit could be drawn from the same by the defendants. This substantial question of law is answered accordingly. In view of the above discussion, as there is no merit in the present appeal, the same is dismissed, so also miscellaneous applications, if any.