Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 633 (HP)

Roop Lal v. Durga Dass

2017-06-01

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. 1. The present regular second appeal has been maintained by the appellant, who was defendant before the learned Trial Court (hereinafter referred to as “the defendant”), challenging the judgment and decree, dated 23.05.2006, of the learned District Judge, Mandi, H.P. passed in Civil Appeal No. 21 of 2005, whereby the judgment and decree, dated 30.12.2004, passed by learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi, H.P., passed in Civil Suit No. 174 of 1997, was upheld, wherein the suit of the respondents, who were plaintiffs before the learned Trial Court (hereinafter referred to as ‘the plaintiffs’), was decreed. 2. Succinctly, the key facts, which are indispensable for determination and adjudication of the present appeal, are that the plaintiffs, by way of filing a suit, sought a decree of permanent prohibitory injunction against the defendant. The plaintiffs sought that the defendant be restrained from interfering in the land owned and possessed by them, which is comprised in Khewat Khatauni No. 90/130 and 93/133, Khasra No. 732, measuring 0-1-7 bighas, and Khasra No. 718, measuring 0-0-6 bighas, situated in Muhal Karao Hadbast No. 49, Illaqua Kohalu, Tehsil Chachiot, District Mandi, H.P. (hereinafter referred to as ‘the suit land’). The plaintiffs have further averred that they are owners-in-possession of the suit land and the defendant has no right, title and interest over the suit land. The plaintiffs have further pleaded that the defendant caused unlawful interference in the suit land w.e.f. 10.10.1997 with an intention to dispossess the plaintiffs and despite repeated requests, the defendant did not desist from his unlawful acts of interference. The defendant also gave beatings to plaintiff No. 1 (Durga Dass). As per the plaintiffs, cause of action accrued in their favour on 01.10.1997 when the defendant started interfering in the ownership, possession and enjoyment of the plaintiffs over the suit land and right to sue accrued on 12.10.1997 when the defendant finally refused to desist from his illegal acts of interfering in the suit land. 3. The defendant, by way of filing the written statement, contested and resisted the suit of the plaintiffs. Preliminary objections, viz., maintainability, cause of action, suit being bad for mis-joinder and non-joinder of necessary parties, were raised. On merits, it has been averred that the plaintiffs are not owners of the suit land. 3. The defendant, by way of filing the written statement, contested and resisted the suit of the plaintiffs. Preliminary objections, viz., maintainability, cause of action, suit being bad for mis-joinder and non-joinder of necessary parties, were raised. On merits, it has been averred that the plaintiffs are not owners of the suit land. As per the defendant, he has his residential-cum-commercial building over a part of Khasra No. 725, Khewat Khatauni No. 126/187, situated in Muhal Karao and Khasra No. 732, located on the same Muhal, measuring 0-1-3 bighas suit land, is being used by the defendant as his courtyard, as by the previous owner, from whom the defendant had purchased the same and had been using the same for the last over thirty years. The defendant had been using the building and the courtyard openly, peacefully, uninterruptedly and to the full knowledge of the plaintiff. The defendant has further pleaded that his possession has matured into right of easement through prescription and the plaintiffs have lost all rights over the suit land. The defendant has also pleaded that he has maintained a suit for permanent prohibitory injunction qua Khasra No. 7321, which was pending in the Trial Court and stay had been granted therein. He has further pleaded that Khasra No. 718 has been recorded in the joint ownership of plaintiffs and one Shri Janku, but the plaintiffs are out of possession from this land. It has been further contended by the defendant that the date, as portrayed by the plaintiffs qua unlawful interference by him over the suit land, is fictitious. As per the defendant, there is no question of restraining him from causing interference over the suit land and no cause of action has accrued in favour of the plaintiffs and the date of accrual of cause of action is also false and fictitious. Lastly, the defendant prayed for dismissal of the suit. 4. The learned Trial Court on 10.11.1999 framed the following issues for determination and adjudication: “1. Whether the plaintiffs are owner in possession of the suit land, as alleged? OPP. 2. Whether the defendant is causing unlawful interference in the suit land, as alleged? OPP 3. If issues No. 1 & 2 are proved in affirmative whether the plaintiffs are entitled to the relief of injunction as prayed for? OPP 4. Whether the plaintiffs are owner in possession of the suit land, as alleged? OPP. 2. Whether the defendant is causing unlawful interference in the suit land, as alleged? OPP 3. If issues No. 1 & 2 are proved in affirmative whether the plaintiffs are entitled to the relief of injunction as prayed for? OPP 4. Whether the plaintiffs have no locusstandi and cause of action to file the suit as alleged? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPD 7. Whether the defendant is owner in possession of the suit land by way of adverse possession, as alleged? OPD. 8. Relief.” 5. After deciding issues No. 1 to 3 in favour of the plaintiff and issues No. 4 to 7 against the defendants, the suit of the plaintiffs was decreed. Subsequently, the defendant preferred an appeal before the learned Lower Appellate Court which was also dismissed. Hence the present regular second appeal, was admitted for hearing on the following substantial questions of law: “1. Whether both the courts below have misread, misconstrued and misinterpreted the oral as well as documentary evidence of the parties especially documents Ex. DW-3/A, Ex. DW-3/B, Ex. DW-3/C and Ex. DB which has materially prejudiced the case of the appellant/ 2. Whether issue with regard to adverse possession has been wrongly framed instead of issue with regard to right of easement by way of prescription, which has also materially prejudice the case of the appellant/” 6. Learned counsel for the appellants has argued that the learned trial Court has not framed the issue, which has arisen from pleadings, to the extent that whether the defendant has right to use the suit land as path by way of prescription, thus the judgment and decree passed by the learned trial Court, which was upheld by the learned lower Appellant Court is required to be set aside. 7. On the other hand, learned counsel for the respondents has argued that the judgment and decree, passed by the learned trial Court is just, reasoned and the learned trial Court has framed the issue which has arisen. 7. On the other hand, learned counsel for the respondents has argued that the judgment and decree, passed by the learned trial Court is just, reasoned and the learned trial Court has framed the issue which has arisen. further the defendant/appellant has led his evidence after knowing his case fully well and at this stage, after more than 20 years, he cannot say that the issue, which were required to be framed, has not been framed by the learned trial Court. 8. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. PW-1, Durga Dass, while appearing in the witness box, has deposed that the suit land comprised in Khasra No. 732, is in his ownership and possession and Khasra No. 718 is in the ownership and possession of plaintiffs No. 2 and 3, who are his minor sons. He stated that he has installed a machine in the suit land towards the road about 10-12 years back and in the remaining land he has kept stones and iron articles. As per PW-1, his residential-cum-commercial building is over Khasra No. 725 and land of the defendant is situated in Khasra No. 732, measuring 0-1-7 bigha. He stated that the defendant used the path, which is in front of Khasra No. 725, for about 7-8 years, but he has never utilized the suit land as courtyard. He contended that when Khasra No. 725 was sold to the defendant, he never give right to the defendant qua the courtyard and path. He further contended that on 01.10.1997, the defendant by removing stones, has started making the path in the suit land and when he tried to stop him, the defendant quarreled with him. In his crossexamination, he denied that on 09.10.1997, he put the stones forcibly on the suit land, as well as the fact that the defendant had ever used the suit land as courtyard and path. He also denied that the co-sharers have courtyard and path on the suit land. 9. PW-2, Gian Chand, has stated that on some part of the suit land there is a house of the plaintiffs and the plaintiff has installed a machine on some portion over the suit land and on other portion, the stones were kept by the plaintiffs. He also denied that the co-sharers have courtyard and path on the suit land. 9. PW-2, Gian Chand, has stated that on some part of the suit land there is a house of the plaintiffs and the plaintiff has installed a machine on some portion over the suit land and on other portion, the stones were kept by the plaintiffs. As per his version, the defendant has no path through the land of the plaintiffs and they are in litigation from the year 1997 due to the fact that the defendant is demanding the path from the land of the plaintiffs. In his cross-examination, he feigned ignorance about the date when the plaintiffs kept stones on the suit land, he denied that plaintiff No. 1, Durga Dass has forcibly kept stones over the vacant portion of the land, however he admitted that stones are still lying there. He further denied that the defendant is having courtyard and path through the suit land. In his cross-examination, he has not stated anything contrary to his examination-in-chief. 10. PW-3, Roshan Lal, has stated that he has seen the suit land and the plaintiffs have installed a machine over the same and the house of the defendant is situated behind the shop of the plaintiffs. He further stated that the defendant has no path and courtyard in the land of the plaintiffs. In his cross-examination, he has stated that he is not aware about the fact that who are the owners of the suit land in the revenue entries. He deposed that the stones are kept in the land measuring 10-12 feet. He has admitted the possession of the plaintiffs over the suit land, where the stones are kept. In his cross-examination, he stated that the land, on which the stones are kept, is in ownership and possession of the plaintiff, Durga Dass. 11. RPW-1, Man Singh, has stated that the plaintiff Durga Dass, has installed a machine in forty feet land and remaining land is vacant, in which stones are kept. As per this witness, the defendant has no path through the land of the plaintiffs. In his cross-examination, he feigned ignorance about the Khasra No., on which the house of defendant is existing. 12. The Jamabandi, Ext. PA and Ex. As per this witness, the defendant has no path through the land of the plaintiffs. In his cross-examination, he feigned ignorance about the Khasra No., on which the house of defendant is existing. 12. The Jamabandi, Ext. PA and Ex. PB, proves that the plaintiffs are owner-in-possession of the suit land and that fact is also supported by the statements of the witnesses. The plea of the defendant is that the residentialcum- commercial building existing on Khasra No. 725, Khewat Khatauni No. 126/187, situated in Muhal Karao and adjoining Khasra No. 732, is used by the defendant as courtyard of his building since long, which was firstly being used by the previous owner from whom the defendant has purchased this residential-cum-commercial building, comprised in Khasra No. 725 and after that by the defendant for over thirty years peacefully and openly to the knowledge of the plaintiffs, enjoying the suit land, which has matured into a right of easement through prescription and plaintiffs have lost their right, title or interest over the same. 13. Roop Lal, defendant, to prove his plea, has appeared in the witness box as DW-1 and stated that in Khasra No. 732, he has courtyard and path leading to his house, whereas Khasra No. 718 is vacant. He further stated that his house over Khasra No. 725 is about 50-60 years old and the said house belonged to Jiwanu, Janku, Mithnu and Gulabu, Jiwanu has sold his share to one Narad, from whom he had purchased the share, whereas Mithun and Gulabu sold their share to Durga and later on Durga has also sold his share to him. The courtyard and path is being used by him since the time of existence of the house over the above land. He deposed that the house was purchased by him about 25-30 years ago and the plaintiffs have never remained in possession of the suit land. He admitted that Durga Dass has forcibly kept stones over the suit land in the year 1997. He also clarified that disputed path is only path leading to his house and except this, he has no alternate path. In his cross-examination, he stated that when he purchased the house from the plaintiffs about thirty years ago, no written document was prepared. He also clarified that disputed path is only path leading to his house and except this, he has no alternate path. In his cross-examination, he stated that when he purchased the house from the plaintiffs about thirty years ago, no written document was prepared. He feigned ignorance about his age about 30 years ago, however he stated that at the time of filing the suit his age was 40 years. He admitted that the plaintiffs have kept stones on some portion of the land. 14. Ram Singh, DW-2, has stated that the suit land is in possession of defendant, Roop Lal, since 22-23 years and except him, no other person is in possession of the same. He also stated that there is no path from the backside of the defendant’s house. He deposed that on some portion of the land stones are kept and remaining portion is path of defendant, Roop Lal. In his cross-examination, he feigned ignorance about the Khasra Nos. of the land in dispute, as well as about the owner of the suit land. He stated that stones are kept in front of the house of the defendant, Roop Lal, though defendant is in possession of the suit land. He further stated that for the last 22-23 years, except the possession of the defendant he has not seen anyone else in possession over the suit land. He deposed that about 25-30 years back, defendant purchased the house and since then, he is using the courtyard and path. 15. DW-3, Sidhu Ram has stated that there is a path and courtyard of the house of the defendant and except that there is no entry to his house. He further stated that the parties compromised the dispute on spot and notices Ext. DW-3/A and Ext. DW-3/B, are correct as per the original record. The compromise, Ext. DW-3/C is also correct as per record, which was not objected by the plaintiffs. He further stated that these documents are issued and signed by the Secretary, Murari Lal. In his cross-examination, he admitted that Ext. DW-3/C is a carbon copy and in which, there are no signatures of the parties. 16. In written statement, filed by the defendant before the learned trial Court, wherein he has taken the preliminary objections with respect to locas standi, maintainability, cause of action, suit being bad for misjoinder and non joinder of necessary parties. DW-3/C is a carbon copy and in which, there are no signatures of the parties. 16. In written statement, filed by the defendant before the learned trial Court, wherein he has taken the preliminary objections with respect to locas standi, maintainability, cause of action, suit being bad for misjoinder and non joinder of necessary parties. On merits, defendant has denied that the plaintiffs are owner-inpossession over the suit land. However, he pleaded that the residential-cum-commercial building of the defendant is existing on the part of Khasra No. 725, Khewat Khatauni No. 126/187, situated in Muhal Karao and Khasra No. 732 is situated in same Muhal, measuring 0-1-3 Bighas, which was being used since long by the previous owner, from whom the defendant has purchased the building. The defendant has using the building and the courtyard openly, peacefully, uninterruptedly and to the full knowledge of the plaintiff. 17. The copy of jamabandi for the year 1994-95, Ex. PA shows that the suit land comprised in Khasra No. 732, measuring 0-1-3 bighas land is being owned and possessed by the plaintiff Durga Dass, in which the defendant has no right, title or interest. Whereas, in another copy of jamabandi for the year, 1994-95, Ex. PB, the land comprised in Khasra No. 718 is shown to be owned by Janku, Jiwanu and Mithnu. There is also an entry in remarks column that vide mutation No. 305, Janku, Mithun and Jiwanu have sold their 31/43 share in favour of Mohan Lal and Binder, plaintiffs No. 1 & 2, in which the defendant has also no right, title and interest. 18. Now the case of the defendant is that he has been using the suit land as courtyard for the last 30 years peacefully. Meaning thereby that the case of the defendant is that the suit land was being used by the defendant peacefully without any intervention and now he has title to the suit land, being in possession. So, it is clear that the defendant is claiming the land by way of his possession over the same for the last 30 years, knowing fully well about his case to the issue with regard to adverse possession. So, it is clear that the defendant is claiming the land by way of his possession over the same for the last 30 years, knowing fully well about his case to the issue with regard to adverse possession. The defendant has led his evidence on all the points, meaning thereby that the issue, which was framed by the learned Court below, whether the defendant is in owner-in-possession of the suit land by way of adverse possession, as alleged, covers the issue involved in the present case and this Court after going through the record of the case, finds that the defendant has led his evidence knowing his case. Further the defendant, in his examinationin- chief, has particularly stated that he purchased the house about 25-30 years back and at that time he might have been 10 years old. He has further stated that he is using the suit land as courtyard and path. Again his case is with respect to the courtyard and then path and he has led his evidence after knowing fully well what his case is about, also the plea of the defendant qua non-framing of the issue of the easementary right of passage by way of prescription is concerned, the same is not of much importance as the defendant has also taken the plea of adverse possession with regard to the suit land. If the defendant really succeeds in proving the adverse possession over the suit land, the question of acquisition of easementary right by prescription or by any other mode would be insignificance. 19. It is true that that omission to frame issue affects the disposal of the suit on merits, but if parties go to trial fully knowing the case of each other, lead evidence, make statements against each other, in that circumstance, non framing of issue does not vitiate the trial. 19. It is true that that omission to frame issue affects the disposal of the suit on merits, but if parties go to trial fully knowing the case of each other, lead evidence, make statements against each other, in that circumstance, non framing of issue does not vitiate the trial. In the present case, the defendant has taken the plea of right of easement by way of prescription in para-1 of his written statement, averred therein that his is enjoying the same for the last thirty years peacefully, uninterruptedly and openly, which has matured into legal right, however he has also taken the plea that as the suit land is being used as courtyard, probably due to this reason, learned trial Court has framed the issue of adverse possession, which is more pervasive in nature and virtually covers the plea of easementary right also. If the defendant proves the plea of adverse possession, there is no further need to prove any easementary right, as the person in adverse possession has all attributes of an owner of the suit land and an owner of the suit land cannot claim easementary right qua the same parcel of land, as both these pleas are contradictory and negative of each other. 20. From the evidence, it is clear that the defendant has tried to prove the existence of passage through suit land and his case is that he has acquired easementary right of passage by prescription. When the case of the defendant is that he has purchased his house over Khasra No. 725, from the previous owners, from whom the plaintiff, Durga Dass has also purchased some share in the suit land, in these circumstance, the defendant could have legally claimed easement of necessity qua the part of the suit land, through which the defendant is claiming passage for the last more than thirty years. It has further come in the evidence of the defendant that the plaintiffs have forcibly kept stones over the suit land. However, as the plaintiffs are admittedly owner of the suit land, there is presumption under the law that the owner shall be deemed to be in possession of the vacant land. It has further come in the evidence of the defendant that the plaintiffs have forcibly kept stones over the suit land. However, as the plaintiffs are admittedly owner of the suit land, there is presumption under the law that the owner shall be deemed to be in possession of the vacant land. So far as the plea of easement by prescription is concerned, the same is not legally available to the defendant, as he has already taken up the plea of adverse possession, which firmly over shadows the plea of acquisition of right by prescription. 21. From the above, it is clear that the parties have led their evidence on all the issues involved in the present case and further this Hon’ble Court in Aditya Kumar Bhanot vs. Savita Devi and others (1992) 1 SLC 31, has held that where the parties are well aware about each others claim, lead evidence, make submissions during arguments without asking for framing of a particular issue, failure to frame an issue, in such circumstance, does not vitiate the decision nor cause any prejudice to the parties. 22. Applying this law to the facts of the present case, this Court finds that, as far as the plea of the learned counsel, with regard to the non framing of issues is concerned that requires to be rejected in view of the discussion made hereinabove. Further the defendant has failed to prove the adverse possession and it is the plaintiffs, who are in ownership and possession of the suit land and as discussed hereinabove in detail, this Court finds that the findings of the learned Courts below are just, reasoned and they have not committed any illegality, accordingly, substantial question of law No. 1 is answered holding that the learned Courts below have correctly appreciated the evidence as has come on record including oral as well as documentary evidence, especially the document Ext. DW- 3/A to Ext. DW-3/C and Ex. DB. As far as the substantial question No. 2 is concerned, the same is answered holding that the defendant has himself pleaded that he is using the suit land as courtyard and has also led evidence on all the aspects, thus the issue is correctly framed and no prejudice is caused to the defendant. DW-3/C and Ex. DB. As far as the substantial question No. 2 is concerned, the same is answered holding that the defendant has himself pleaded that he is using the suit land as courtyard and has also led evidence on all the aspects, thus the issue is correctly framed and no prejudice is caused to the defendant. Hence, the judgments and decree passed by the learned Courts below needs no interference and the instant appeal, which sans merits, deserves dismissal and is dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. 23. Pending miscellaneous applications, if any, also stands disposed of.