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2017 DIGILAW 559 (HP)

Ram Lok v. Amar Singh

2017-05-22

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. As both these appeals arise out of the common judgment passed by the Court of learned Additional District Judge, Solan, Camp at Nalagarh, in Civil Appeal No. 10-NL/13 of 2008, dated 10.06.2008 and Cross Appeal No. 22-NL/13 of 2008, dated 10.06.2008, therefore, the same are being decided by a common judgment. 2. Brief facts necessary for the adjudication of the present case are that respondents/plaintiffs (hereinafter referred to as “the plaintiffs”) filed a suit for declaration with consequential relief of injunction and in the alternative for a decree of possession on the grounds that the suit land comprised in Khewat/Khatauni No. 2 min/4, Khasra No. 181, measuring 7 biswas, situated in Village Kalyanpur, Pargana Gullarwala, Tehsil Nalagarh, District Solan, H.P. was owned by them. According to the plaintiffs, in the column of possession of jamabandi for the year 1995-96, name of one Rattan Singh, son of Shingaroo was mentioned and in column No. 9 of jamabandi, it was reflected “Bila Lagan Bavja Tabadla Hamra Aabadi”, which entries as per the plaintiffs were incorrect. It was further the case of the plaintiffs that said 0-7 biswas of land was being reflected as Gair Mumkin Aabadi, which was incorrect and only one thatched roof ‘Chhan’ was there on said land to the extent of 0-0-8 biswansi, whereas the remaining land was open, which was possessed by the plaintiffs. According to the plaintiffs, area measuring 0-6 biswa was open, but the said land was in front of Aabadi of defendant and the said defendant was causing interference in 0-6 and ½ biswas land and on 0- 0-8 biswas of land where a thatched roof ‘Chhan’ stood constructed by defendant a few months back. It was further mentioned in the plaint that plaintiffs had previously filed a Civil Suit No. 84/1 of 2001 against one Shri Rattan Singh, which was decided on 07.11.2002, in which they had successfully challenged revenue entries which were being reflected in favour of Rattan Singh. According to the plaintiffs, said suit was decreed in their favour vide judgment and decree dated 07.11.2002, vide which, learned Court had held the plaintiffs to be owners in possession of the suit land and Rattan Singh was restrained by a decree of permanent injunction from asserting or claiming any right, title and interest over the same. According to the plaintiffs, said suit was decreed in their favour vide judgment and decree dated 07.11.2002, vide which, learned Court had held the plaintiffs to be owners in possession of the suit land and Rattan Singh was restrained by a decree of permanent injunction from asserting or claiming any right, title and interest over the same. As per the plaintiffs, defendant was grandson of Shingaroo, whereas Rattan Singh was son of Shingaroo and thus, the defendant and Rattan Singh were related to each other as the defendant was his nephew and the factum of judgment and decree having been passed in favour of the plaintiffs in Civil Suit No. 84/1 of 2001 was very much in the knowledge of the defendant. It was further mentioned in the plaint that defendant had filed an application before Land Reforms Officer (Tehsildar), Nalagarh, which was decided on 19.12.2002 by Tehsildar on the basis of a report of Field Kanungo, Changar and by making the said report of Field Kanungo Changar his base, Tehsildar had passed an order dated 19.12.2002 ordering correction of revenue record in favour of Ram Lok and against the plaintiffs and had also passed an order in this regard in favour of Ram Lok. According to the plaintiffs, Tehsildar had erred in construing the report of the Field Kanungo to be a correct report, whereas neither Kanungo who had prepared said report was ever examined before Tehsildar nor any opportunity of his cross-examination was afforded to the plaintiffs. As per the plaintiffs, as the application was filed for correction of jamabandi, the same in fact was even not maintainable before the Tehsildar. On these bases, it was stated by the plaintiffs that the order so passed by Tehsildar, Nalagarh, dated 19.12.2002 was wrong, illegal, inoperative, ineffective and null and void. As per the plaintiffs, they were in possession of the suit land, over which one thatched roof ‘Chhan’ stood constructed by defendants over 0-0-8 biswansi of land some time back after the Tehsildar had passed his order on 19.12.2002. As per the plaintiffs, they were in possession of the suit land, over which one thatched roof ‘Chhan’ stood constructed by defendants over 0-0-8 biswansi of land some time back after the Tehsildar had passed his order on 19.12.2002. It was further mentioned in the plaint that as the suit land was in front of Aabadi houses of defendant, the defendant may take advantage of absence of plaintiffs from the village and may occupy vacant portion, however, since plaintiffs were owners, plaintiffs were also entitled for the possession, if the possession of the plaintiffs could not be proved over the suit land either at the time of filing of the suit or thereafter. On these bases, the suit was filed by the plaintiffs praying for the following reliefs: “(i) That the plaintiffs may kindly be declared as owners in possession of the suit land as detailed in para-1 of the plaint. (ii) That the defendant may kindly be restrained permanently from claiming any right, title and interest or taking forcible possession or changing the nature and character of the suit land in any manner whatsoever. (iii) In the alternative, decree for possession may kindly be passed in favour of the plaintiffs and against the defendant.” 3. The suit so filed by the plaintiffs was resisted by the defendants, who in their written statement took the stand that father of the plaintiffs Sita Ram was in possession of area in front of his Abadi and in the Aabadi deh which had come to the share of Maghi Singh, father of the defendant in partition. It was further the case of the defendant that they were using the suit land for tethering the cattle by constructing a ‘Chhan’ thereon and thereafter defendant had separated from joint family in the year 1980 and 0-4 biswas of suit land had fallen to the share of defendant and since then, defendant was in possession of the same as its owner, who was living in the ‘Chhan’, which was having a bath room as well as a compound. It was further the case of the defendant that he had become owner of 0-4 biswas of the suit land by way of surrender of rights by predecessors of the plaintiffs. It was further the case of the defendant that he had become owner of 0-4 biswas of the suit land by way of surrender of rights by predecessors of the plaintiffs. In alternative, defendant stated that he had perfected his title over the suit land by way of adverse possession, as his possession over the same was hostile and to the knowledge of the plaintiffs, who had not objected to the same since November, 1980. Further as per the defendants, Assistant Collector, 2nd Grade had rightly passed order dated 19.12.2002, which had attained finality as it had not been challenged by way of any appeal or revision etc. It was further the case of the defendant that the entries in the name of Rattan Singh qua the suit land were wrong and illegal and decree, if any, passed in favour of the plaintiffs and against Rattan Singh was not binding upon the defendant. On these bases, defendant resisted the claim of the plaintiffs. 4. By way of replication, the plaintiffs reiterated their stand and denied the submissions made in the written statement. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues: “1. Whether the plaintiffs are owners in possession of the suit land, as alleged? OPP 2. Whether the plaintiffs are entitled for the relief of injunction, as prayed? 3. Whether the plaintiffs are also entitled for alternative decree for possession? 4. Whether the suit of the plaintiffs is not maintainable? OPD 5. Whether the suit of the plaintiffs is bad for nonjoinder of necessary parties, as alleged? OPD 6. Whether the plaintiffs are estopped to file the present suit by their act, conduct and acquiescence? OPD 7. Whether the defendant is owner in possession of 0-4 biswas of land out of suit land by way of surrender of rights by predecessor of the plaintiffs? OPD 8. Whether defendant has become owner of suit land by way of adverse possession as alleged? P{D 8A Whether order passed by Tehsildar on dated 19.12.2002 is wrong, illegal, inoperative, ineffective, null and void, as alleged? 9. 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: Yes. Issue No. 3: Infructuous. 9. 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: Yes. Issue No. 3: Infructuous. Issue No. 4: No. Issue No. 5: No. Issue No. 6: No. Issue No. 7: No. Issue No. 8: No. Issue No. 8A: Yes. Relief: The suit of the plaintiffs is decreed as per operative portion of the judgment. 7. Learned trial Court vide its judgment and decree dated 07.12.2007 decreed the suit of the plaintiffs to the effect that they were declared as owners of the land comprised in Khewat/Khatauni No. 2 min/4, bearing Khasra No. 181, situated in area of village Kalyanpur, Pargana Gullarwala, Tehsil Nalagarh, Distt. Solan, H.P. and by way of consequential relief, defendant was permanently restrained from interfering in the possession of the plaintiffs over 6 ½ biswas of land. While partly decreeing the suit of the plaintiffs, it was held by the learned trial Court that plaintiffs had categorically pleaded in para-1 of the plaint that defendant had encroached over 8 biswansi of suit land by raising one thatched roof ‘Chhan’ and was causing interference in 0-6 and ½ biswas of land. Learned trial Court held that jamabandi for the year 1961-62 Ex. P2 demonstrated that father of the plaintiffs was owner in possession of the suit land and said entry remained in force up till 1970- 71, which was evident from jamabandi Ex. P-7. Learned trial Court also held that in the year 1975-76, Rattan Singh was recorded as Gair Marusi over the suit land and the said entry was challenged by way of Civil Suit No. 84/1 by the present plaintiffs, which suit of the plaintiffs was decreed and they were declared owners in possession qua the suit land. Learned trial Court also took note of the fact that in the suit so filed by the plaintiffs, challenge was laid to order of Tehsildar, Nalagarh, dated 19.12.2002. It was held by the learned trial Court that defendant Ram Lok in his examination-in-chief had claimed his possession over 4 biswas of land by way of exchange, which exchange as per him took place between his predecessor-in-interest Maghi Singh and Sita Ram, father of the plaintiffs, however, the said witness in his cross-examination had a different story. It was held by the learned trial Court that defendant Ram Lok in his examination-in-chief had claimed his possession over 4 biswas of land by way of exchange, which exchange as per him took place between his predecessor-in-interest Maghi Singh and Sita Ram, father of the plaintiffs, however, the said witness in his cross-examination had a different story. Learned trial Court also took note of the fact that said witness had admitted that no mutation of exchange was ever attested and sanctioned and he had expressed his inability to depose that from whom his father had exchanged the suit land. Learned trial Court also took note of the fact that Kanungo Krishan Chand, whose report was made the basis of order dated 28.08.2001 by Tehsildar was examined as a witness by the defendant as DW-4 and this witness had admitted that plaintiffs were owners of the suit land and that they were not present at the time of his spot inspection. On these bases, it was held by the learned trial Court that report Ex. PW4/A prepared by the Kanungo was far away from reality and in such circumstances, order dated 19.12.2002 passed by the Tehsildar was not sustainable in the eyes of law, as admittedly Tehsildar had not verified the fact of possession of the defendant over the suit land before passing the said order. Learned trial Court further went on to hold that though plaintiffs in para-1 of the plaint had categorically pleaded that defendant had encroached upon 8 biswansi of suit land by raising one thatched roof ‘Chhan’, but he had not claimed any possession of the said land. Learned trial Court held that no doubt in the alternative, plaintiffs had prayed for a decree of possession, but no evidence had been adduced by the plaintiffs that defendant had encroached upon the suit land during the pendency of the main suit. It also held that the plaintiff had not prayed for vacant possession of 8 biswansi. Accordingly, learned trial Court while holding that the plaintiffs were owners of the suit land and that order passed by Tehsildar, dated 19.12.2002 was not sustainable in the eyes of law, declared the plaintiffs to be owners in possession over the suit land, but it further held that as far as 8 biswansi of land was concerned, plaintiffs could not claim possession over the same. 8. 8. On the issue of adverse possession, it was held by the learned trial Court that defendant had claimed his possession over that part of the suit land, which was in his possession by way of adverse possession, but he had miserably failed to lead any cogent evidence to prove that he had perfected his possession over the suit land by way of adverse possession. Learned trial Court also held that defendant had taken plea of exchange of the part of the suit land which was in his possession, which took place according to the defendant between his predecessor-in-interest and the predecessor-in-interest of the plaintiffs. It was held by the learned trial Court that the said two pleas, i.e., of exchange and adverse possession were in fact mutually destructive to each other and in case defendant was in possession of part of the suit land on the basis of exchange, then his possession could not be open, hostile and peaceful. Learned trial Court also held that no doubt defendant could take more than one pleas, but it was also equally settled that mutually destructive pleas cannot and should not be taken and claim should be based on one plea only. On these bases, it was held by the learned trial Court that defendant had failed to prove that he had perfected his title over part of the suit land by way of adverse possession. 9. Against the judgment and decree so passed by the learned trial Court, defendant had filed Civil Appeal No. 10-NL/13 of 2008, whereas plaintiffs filed Cross-appeal No. 22-NL/13 of 2008. 10. Learned appellate Court while dismissing the appeal so filed by the defendants, allowed the Cross-appeal filed by the plaintiffs. It was held by the learned appellate Court that learned trial Court had erred in denying the relief of possession over part of the suit land in favour of the plaintiffs by ignoring that there was an alternative prayer made by the plaintiffs for possession of the suit land, if the same was found in possession of the defendant. It was held by the learned appellate Court that learned trial Court had erred in denying the relief of possession over part of the suit land in favour of the plaintiffs by ignoring that there was an alternative prayer made by the plaintiffs for possession of the suit land, if the same was found in possession of the defendant. It was held by the learned appellate Court that keeping in view the fact that there was an alternative prayer of possession made by the plaintiffs, the said relief could be granted in their favour, especially when the Court had come to the conclusion that the suit land was owned by the plaintiffs and a part of the same was in possession of the defendant and defendant had failed to prove that he had perfected his title over the same by way of adverse possession. 11. Learned appellate Court also held that as plaintiffs had succeeded in establishing that they were owners of the suit land and that on some part of the suit land, defendant had raised some construction and further as defendant had not been able to prove his right, title and interest over the suit land and had failed to establish the factum of his possession having been perfected by way of adverse possession, learned trial Court had erred while refusing the relief of possession qua portion of the suit land over which construction had been raised by the defendant. Learned appellate Court held that as plaintiffs had proved themselves to be owners of the land, therefore, owner on the basis of title could seek possession in case other party had not become owner by way of adverse possession. On these bases, learned appellate Court while upholding the part of the decree which was passed by the learned trial Court in favour of the plaintiffs and while dismissing the appeal so filed by the defendant, allowed the Cross-appeal filed by the plaintiffs and modified the judgment and decree passed by the learned trial Court by holding that the plaintiffs were entitled for decree for permanent prohibitory injunction restraining the defendant from interfering over the suit land and that plaintiffs were also entitled for possession of the constructed portion after demolition of the structure raised thereon. 12. 12. Feeling aggrieved by the dismissal of his appeal and the Cross-appeal of plaintiffs having been allowed by the learned appellate Court, defendant has filed these two appeals. 13. Both these appeals were admitted by this Court on 27.08.2009 on the following substantial question of law: “Whether the judgment and decree passed by the learned lower Appellate Court is sustainable in the eyes of law in view of the fact that since there is no prayer in the plaint for possession, demolition of structure and for mandatory injunction by the plaintiffs in the prayer clause of the suit and no evidence have been adduced by the plaintiffs to the effect that they have been dis-possessed by the defendant during the pendency of the suit? 14. Mr. J.R. Poswal, learned counsel appearing for the appellant has argued that the judgments and decrees passed by both the learned Courts below were not sustainable in the eyes of law, as both the learned Courts below had erred in not appreciating that the plaintiffs had not made any prayer for grant of decree for possession and demolition of structure and for mandatory injunction and thus, the relief which was granted by the learned Courts below in favour of the plaintiffs was beyond the relief prayed for in the plaint and further both the learned Courts below had erred in not appreciating that the plaintiffs had not placed on record any evidence to the effect that they were dispossessed from the suit land by the defendant during the pendency of the suit. Mr. Poswal further argued that both the learned Courts below had also erred in not appreciating that the evidence led by the plaintiffs to support their case was rather in contradistinction to what was the stand taken by them in their plaint. It was further urged by Mr. Poswal that both the learned Courts below have also failed to appreciate that in view of the provisions of Order 7 as are contemplated in the Code of Civil Procedure, the reliefs which had been granted by the learned Courts below in favour of the plaintiffs could not have been granted. No other point was urged. 15. Mr. Poswal that both the learned Courts below have also failed to appreciate that in view of the provisions of Order 7 as are contemplated in the Code of Civil Procedure, the reliefs which had been granted by the learned Courts below in favour of the plaintiffs could not have been granted. No other point was urged. 15. Mr. Ramakant Sharma, learned Senior Counsel appearing for the respondents by drawing the attention of this Court to the pleadings of the parties, has argued that as the suit of the plaintiffs was based on title, they could have been granted a decree for possession if the Courts found that the land in dispute was in possession of a party who was not having a superior title to that of the land owner. Mr. Sharma has further argued that even otherwise, the grounds taken for assailing the judgment and decree passed by the learned trial Court were erroneous as pleadings demonstrated that the plaintiffs had prayed for decree for possession as well as a decree for permanent injunction. It was further submitted by Mr. Ramakant Sharma that factum of the plaintiffs being owners of the suit land was concurrently decided in their favour by both the learned Courts below, so also the factum of the defendant having failed to prove that he had become owner of the suit land by way of adverse possession. Mr. Ramakant Sharma also submitted that it had also come in the statement of DW-4, the concerned Kanungo, who was examined by the defendant that the suit land in fact was owned by the plaintiffs and further they were not present at the spot when the demarcation was conducted. Mr. Ramakant Sharma further argued that in fact a perusal of the judgment and decree passed by the learned appellate Court demonstrated that the conclusions arrived at by the learned appellate Court were duly borne out from the records of the case and thus, there was neither any perversity nor any illegality in the findings so returned by the learned appellate Court. It was further submitted by Mr. Ramakant Sharma that as there was no merit in the appeals, the same be dismissed. 16. I have heard the learned counsel for the parties and have also gone through the records of the case as well as the judgments and decrees passed by the learned Courts below. 17. It was further submitted by Mr. Ramakant Sharma that as there was no merit in the appeals, the same be dismissed. 16. I have heard the learned counsel for the parties and have also gone through the records of the case as well as the judgments and decrees passed by the learned Courts below. 17. A perusal of the plaint so filed by the plaintiffs before the learned Court below demonstrated that the suit filed by the plaintiffs was for “declaration with consequential relief of permanent injunction and also in the alternative suit for possession”. A perusal of the plaint further demonstrates that there are clear and unambiguous pleadings to the effect that over a portion of the suit land, after the order was passed by Tehsildar on 19.12.2002, defendant had constructed a thatched roof ‘Chhan’. In para-2 of the plaint, it has been specifically mentioned by the plaintiffs that plaintiffs being owners were entitled to possession even if the possession of the plaintiffs was not proved over the suit land at the time of filing of the suit or even before it, as they in their capacity as owners of the suit land were entitled for possession of the same. The reliefs prayed for in the suit are also being quoted hereinbelow for ready reference: “(i) That the plaintiffs may kindly be declared as owners in possession of the suit land as detailed in para-1 of the plaint. (ii) That the defendant may kindly be restrained permanently from claiming any right, title and interest or taking forcible possession or changing the nature and character of the suit land in any manner whatsoever. (iii) In the alternative, decree for possession may kindly be passed in favour of the plaintiffs and against the defendant.” 18. A harmonious reading of the plaint establishes that there was a prayer made for possession, though in the alternative, and it was also mentioned in the plaint that the plaintiffs were entitled for possession of the suit land, even if it stood proved that they were not in possession of the same either at the time of filing of the suit or before it. In the relief clause also, plaintiffs have categorically prayed for an alternative decree for possession. In the relief clause also, plaintiffs have categorically prayed for an alternative decree for possession. Now, simultaneously when we also peruse the written statement so filed by the defendant, it is evident from the reading of the same that though the defendant had tried to justify his possession over 0-4 biswas of suit land on the ground that this portion of suit land had come in his possession by virtue of an exchange, which had taken place between his father Magi Singh and the father of the plaintiffs, however, in the alternative, it was mentioned in the written statement that the defendant had become owner of the suit land by way of adverse possession as his possession over the same was hostile and to the knowledge of plaintiffs as the same was without any objection of the owner since November, 1980. Records of the case demonstrate that there was a specific issue framed by the learned trial Court as to whether the defendant had perfected his title over the suit land by way of adverse possession or not and the said issue stood decided against the defendant. Findings returned to this effect by the learned trial Court have not been disturbed by the learned appellate Court. Both the learned Courts below have concurrently held the plaintiffs to be owners of the suit land. Both the learned Courts below have concurrently held that it was only a portion of the suit land over which a thatched roof ‘Chhan’ stood constructed by the defendant after the order so passed by the Tehsildar dated 19.12.2002, which order in fact stood quashed by the learned trial Court, which finding returned by the learned trial Court has also been upheld by the learned appellate Court. Therefore, in these circumstances, when the factum of the plaintiffs being owners of the suit land has been concurrently held in their favour and against the defendant by both the learned Courts below, when the factum of defendant not being able to prove his title over the suit land has been held against him by both the learned Courts below, when there is expressly a relief prayed for possession of the suit land though in alternative, so made in the plaint by the plaintiffs, there is no infirmity in the judgment and decree passed by the learned appellate Court whereby it has partly modified the judgment and decree passed by the learned trial Court and held the plaintiffs entitled for decree for permanent prohibitory injunction restraining the defendant from the suit land and also for possession of the constructed portion after demolition of the structure raised thereon. Besides this, I may add that during the course of arguments, learned counsel for the appellants even otherwise could not demonstrate from the records as to what was the infirmity with the judgment and decree passed by the learned trial Court in favour of the plaintiffs, which stood assailed by the defendant before the learned first appellate Court. As plaintiffs had filed a suit for declaration with consequential relief of injunction and also for possession in the alternative, decree so passed in their favour by the learned appellate Court is completely justified in the eyes of law. Substantial question of law is answered accordingly. 19. In view of the discussion held above, as there is no merit in these appeals, the same are dismissed, so also miscellaneous applications, if any. No order as to costs.