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2018 DIGILAW 333 (HP)

Chajju Ram v. Shama Ram

2018-03-13

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J —The instant appeal stands directed against the impugned judgement and decree of the learned Additional District Judge, Fast Track Court, Shimla, Himachal Pradesh, whereby he affirmed the rendition of the learned Sub Judge 1st Class, Chopal. The plaintiff chajju Ram standing aggrieved by the concurrently recorded renditions against him by both the learned Courts below concerts through the instant appeal constituted before this Court, to reverse the judgements and decrees of both the Courts below. 2. The facts necessary for rendering a decision on the instant appeal are that a suit for declaration, perpetual injunction and confirmation of possession was filed by the plaintiffs on the allegations that they are owners in possession of land comprised in Khewat No. 153 min, Khasra No. 5018/41, 5018/50 and 5018/126 measuring 33 bighas 1 biswas situated in Mauja Khadar, Pargana Hamal, Tehsil Chopal, being the successor in interest of original owner late Shri Ramsa. In the month of July, 1996 the defendant began to interfere in the land described in Khasra No. 5018/50/2 measuring 4 bighas 10 biswas. It was alleged that the defendant with the active connivance of the Patwari had managed to get himself entered in the column of possession as Khud Kashat. It is alleged that the said entry is illegal, void and not binding on them. It is further alleged that the entries in column No.4 i.e. column of possession and in column No. 7 i.e. column of Lagaan (Bila Lagaan Bawaza Razamandi) in the jamabandi for the year 1993- 94 pertaining to the suit land have not only cast cloud on the rights of the plaintiffs but the same are serious invasion in their right, title and interest qua suit land. 3. The suit of the plaintiffs was resisted by defendant by raising preliminary objections qua locus standi, estoppal, bad for non-joinder and mis-joinder of necessary parties, limitation, valuation, non-joinder and mis joinder of cause of action. On merits it was pleaded that the defendant has been in peaceful uninterrupted possession of the suit land since 1975-76 to the knowledge of one and all including plaintiffs and as such to have become its owner by afflux of time. The entry in column of possession is correct and there is no invasion in the rights of the plaintiffs. 4. The entry in column of possession is correct and there is no invasion in the rights of the plaintiffs. 4. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiffs are entitled for the relief of declaration, as prayed for? OPP. 2. Whether the plaintiffs are entitled for relief of injunction permanent prohibitory, as prayed for OPD. 3. Whether the plaintiffs are entitled for the relief of confirmation of possession, as prayed for? OPP. 4. Whether the plaintiffs have no locus standi to file the suit? OPD 5. Whether the suit is bad for non-joinder of necessary parties? OPD. 6. Whether the suit is barred by limitation? OPD. 7. Whether the suit is bad for non joinder and mis joinder of causes of action? OPD. 8. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD. 9. Whether the suit lacks better and material particulars? OPD 9. (a) Whether the defendant has become owner of the suit land by way of adverse possession? OPD. 10. Relief. 5. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs besides the learned First Appellate Court dismissed the appeal preferred therefrom before it by the plaintiffs. 6. Now the plaintiff Chhaju Ram has instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 27.6.2006, this Court admitted the appeal on the hereinafter extracted substantial question of law:- Whether the two Courts below have not correctly evaluated the evidence as regards the plea of adverse possession especially the entries in the Jamabandies which show that the possession of the respondent-defendant is permissive (Babaja Rajamandi) . Substantial question of law. 7. x xX x xX x xX 8. The suit of the plaintiffs for declaration qua theirs being owners in possession qua the suit property besides for a relief of permanent prohibitory injunction for restraining the defendant from interfering in their peaceful possession qua the suit land, palpably stands anchored upon the revenue records apposite to it, comprised in the relevant Jamabandis qua it comprised in Ext.PW-1/B, wherein the predecessor in interest of the plaintiffs stands recorded as its owner. However, the aforesaid depiction in the apposite revenue records qua the suit property would not suffice to hold of theirs standing entitled to the relief as espoused by them in the suit unless this Court benumbs the propagation of the defendant of his continuously with an animus possidendi since 1993-94 whereat given the pronunciations in the remarks column No.7 of the apposite Jamabdi comprised in Ext.D-1 of his holding the suit land in the capacity of Bila Lagaan Bawaza Razamandi upto the date of institution of the suit, holding possession thereof holding a concomitant sequel of his acquiring a prescriptive title thereto. Both the learned Courts below relied upon oral evidence adduced by the defendant in proof of the contentions reared by him in his written statement wherein he concerted to dislodge the claim qua the suit property of the plaintiffs, contentions whereof bespeak of his acquiring qua the suit property prescriptive title ensuing from the statutorily prescribed period of limitation standing elapsed since 1992 uptill the date of institution of the suit. The quintessential imperative ingredient qua his perfecting title qua the suit property by adverse possession embodied in the factum of his continuously with an animus possidendi holding possession thereof since 1993 upto the date of institution of the suit stood reared by him in his written statement besides in corroboration thereof the defendant adduced evidence comprised in the testimonies of DW-1 and DW-2. Even though both DW-1 and DW-2 depose of the defendant holding possession of the suit property for the last 32- 35 years and of the defendant rearing an apple orchard thereon, orchard whereon stands deposed by both to be holding apple trees aged 12 to 13 years, the apposite overt act whereof of the defendant stands construed by both the Courts below to be connotative of the defendant openly denying the title of the plaintiffs qua the suit property hence with his evidently within animus possidendi holding it besides his continuously holding possession thereof since 32 to 35 years, coaxed both the Courts below to construe of the contention reared by the defendant in his written statement to repudiate the claim of the plaintiffs qua the suit property standing clinchingly proven. However, both the learned Courts below while imputing vigour to the testimony of DW-1 and DW-2 appear to undermine the bespeakings in column No.7 of the apposite Jamabandi qua the suit land comprised in Ext.D-1. Since reliance thereupon stood placed by the defendant for succouring his claim qua the suit property, claim whereof stood anvilled on his acquiring title thereto by adverse possession also when Ext.D-1 stood exhibited by him whereas its holding in its Column No.7 an entry of the defendant holding possession thereof in the capacity of Bila Lagaan Bawaza Razamandi, in sequel with the signification borne thereof being of the defendant holding possession of the suit property with the permission of the plaintiffs concomitantly eroded his claim of his holding its possession with an animus possidendi since the apposite reflections occurring in Ext.D-1 till it stood adduced in defence by the defendant. In aftermath the depiction in Ext.D-1 unveiling the capacity in which he held possession of the suit property inasmuch as Bila Lagaan Bawaza Razamandi, signification borne whereof is of his holding it in a permissive capacity rather than his holding its possession with an animus possidendi. With the aforesaid signification borne by the reflection Bila Lagaan Bawaza Razamandi, occurring in Column No. 7 of Ext.D-1 when is palpably imperatively cullable therefrom, as a corollary the apposite reflections qua the capacity in which he held it, occurring in Ext.D-1, are to be construed to stand acquiesced by him. Given his acquiescence to the apposite manifestations in Ext.D-1 qua the capacity in which he held possession of the suit property, the apposite reflections therein obviously acquire conclusivity. Given his acquiescence to the apposite manifestations in Ext.D-1 qua the capacity in which he held possession of the suit property, the apposite reflections therein obviously acquire conclusivity. Consequently with conclusivity standing imputed to the apposite reflections in Ext.D-1 unfolding the capacity in which he held possession of the suit property he hence stood estopped to contend of his acquiring title to the suit property by adverse possession also the oral evidence if any as relied upon by both the Courts below for theirs holding of the defendant succeeding in proving his acquiring title to the suit property by adverse possession when rather stood subsumed by the effect of the apposite reflection constituted in Ext.D-1, reflections whereof for reasons aforestated acquire conclusivity prominently also when the reflections therein hence connote of possession if any of the defendant qua the suit property being permissive, concomitantly stain the concurrently recorded verdicts of the learned Courts below with a vice of theirs misappreciating the merit of the entry Bila Lagaan Bawaza Razamandi occurring in Column No. 7 of Ext.D-1, Also reiteratedly the reliance by both the Courts below upon oral evidence adduced by the defendant to support his claim qua his acquiring title to the suit property by adverse possession stands stained with an error of theirs misappreciating the oral testimonies of the defendants'' witnesses. Consequently, the findings recorded by the learned trial Court on issue No. 9(a) stands reversed and set-aside and stands answered in favour of the plaintiffs. 9. Be that as it may, with the aforesaid inference standing drawn by this Court qua misappreciation by both the Courts below qua the import besides the signification borne by the entry Bila Lagaan Bawaza Razamandi occurring in Ext.D-1 with a sequelling effect of its not facilitating the defendant to stake a claim qua his perfecting his title qua the suit property by prescription ensuing from elapse of the statutorily prescribed period of limitation nonetheless with the plaintiffs also acquiescing to the occurrence of the aforesaid reflections in Column No. 7 of the Jamabandi comprised in Ext.PW-1/B, has a bearing upon theirs conceding to the factum of the defendant holding possession of the suit land even if in a permissive capacity. With hence the plaintiffs admitting the possession of the defendant qua the suit land though in a permissive capacity, also the oral evidence adduced by the defendant qua the defendant holding possession thereof being in incongruity thereof. In aftermath with the sine qua none for the plaintiffs holding leverage for obtaining the relief of injunction stands embodied in the factum of theirs provenly holding possession of the suit property, sine qua none whereof for reasons aforestated stands unsubstantiated. In sequel the relief of injunction qua the suit property as claimed by the plaintiffs against the defendant stood tenably refused by both the Courts below dehors the factum of this Court discountenancing the concurrently recorded findings by both the courts below of the defendant acquiring title thereto by adverse possession. 10. The substantial question of law stands answered in favour of the plaintiffs. Consequently, the appeal is partly allowed and the findings rendered by the learned trial Court on issue No. 9(a) stand reversed and set-aside. However, the judgements and decrees rendered by both the Courts below refusing the decree of permanent prohibitory injunction qua the suit property to the plaintiff is affirmed and maintained. Decree sheet be prepared accordingly.