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2018 DIGILAW 542 (HP)

Vishal Singh v. Deva Singh

2018-04-04

AJAY MOHAN GOEL

body2018
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant has challenged the judgment and decree passed by the Court of learned Civil Judge (Jr. Division), Court No.1, Rohru, Distt. Shimla H.P. in Civil Suit No. 64-1 of 2003/2002 dated 31.03.2004 vide which the learned Court decreed the suit of the respondent/plaintiff for possession of suit land and also the judgment and decree passed by the Court of learned Addl. District Judge, Shimla, in Civil Appeal No.45-R/13 of 2004, whereby the learned Appellate Court in an appeal filed by the present appellant, while dismissing the same, upheld the judgment and decree passed by the learned Trial Court. 2. Brief facts necessary for adjudication of the present appeal are that respondent/plaintiff (hereinafter referred to as the “plaintiff”) filed a suit for possession of land comprised in Khata Khatauni No.91/279 min Khasra No.1714 (new) corresponding to old Khasra No.849/748, measuring 0-08-67 hectares in Chak Chirgaon Distt. Shimla, which as per the plaintiff was taken forcibly into possession by the defendant somewhere in June 2002. Suit was filed by the plaintiff through his son Ishwar Singh as next friend of the plaintiff on the ground that the plaintiff was a man of low intelligence. The suit was resisted by the defendant, inter alia, on the ground that he was in possession of the suit land since 20.12.1989 and that an apple orchard also stood raised on the same. According to the defendant, his possession over suit land was open, peaceful, continuous, visible and hostile to the knowledge of the plaintiff and he had not taken forcible possession of the suit land in June 2002 as alleged. Defendant also denied that the plaintiff was a man of low intelligence. 3. On the basis of pleadings of parties, learned Trial Court framed following issues:- 1. Whether the plaintiff is entitled for the relief of decree for possession, as prayed for? …..OPP 2. Whether the suit of the plaintiff is not maintainable? …..OPD 3. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? …..OPD 4. Whether the plaintiff has got no cause of action against the defendant? …..OPD 4A. Whether this Court has no pecuniary jurisdiction to try the present suit? …..OPP 4B. Whether the defendant has become the owner of the suit land by way of adverse possession? …..OPP 5. Relief. 4. …..OPD 4. Whether the plaintiff has got no cause of action against the defendant? …..OPD 4A. Whether this Court has no pecuniary jurisdiction to try the present suit? …..OPP 4B. Whether the defendant has become the owner of the suit land by way of adverse possession? …..OPP 5. Relief. 4. On the basis of the evidence adduced by the parties, following findings were returned to the issues so framed by the learned Trial Court: Issue No.1: Yes Issue No.2: No Issue No.3: No Issue No.4: No Issue No.4A: No Issue No.4B: No Issue No.5: The suit of the plaintiff is decreed as per operative part of my judgment. 5. While decreeing the suit, it was held by the learned Trial Court that the suit land bearing Khasra No.1714 was in ownership of the plaintiff. Learned Trial Court held that the defendant had alleged that he was in possession of the suit land right from 20.12.1989 and since then his possession over the same was open, peaceful, continuous, visible and hostile to the knowledge of the plaintiff. It further held that the defendant had alleged that he has raised an apple orchard over the suit land which was in his possession since 2002 and, therefore, it was for the defendant to have had proved the same by leading cogent and reliable evidence but defendant had failed to prove this fact by leading cogent and reliable evidence. Learned Trial Court also held that the defendant allegedly denied in cross-examination that settlement was conducted at Chirgaon in the year 1990 and revenue department had not reflected him in the column of possession. Learned Trial Court also held that DW-3 had admitted in his cross examination that defendant had taken possession of the suit land in the month of June 2002. Learned Trial Court also held that no evidence worth its name had been produced by the defendant to demonstrate that he had become owner of the suit land by way of adverse possession by proving ingredients of adverse possession. On these basis, learned Trial Court decreed the suit of the plaintiff for possession of the suit land against the defendant. 6. In appeal, findings so returned by the learned Trial Court were upheld. On these basis, learned Trial Court decreed the suit of the plaintiff for possession of the suit land against the defendant. 6. In appeal, findings so returned by the learned Trial Court were upheld. Learned Appellate Court after discussing the evidence on record as also the contentions of the parties also held that the defendant had failed to prove the ingredients of adverse possession so as to substantiate his contention that he had become owner of the suit land by way of adverse possession. It also held that DW-3 had admitted that the defendant had occupied the suit land in June 2002, which demonstrated that it was the plaintiff, who was owner of the suit land and defendant had trespassed over the same in the year 2002. Learned Appellate Court also held that plaintiff being owner was entitled for a decree for possession of the suit land on the basis of title. Learned Appellate Court also held that the defendant had not brought any material to demonstrate as to why no application for correction was ever filed by him qua the entries in the revenue record, in which plaintiff was being reflected as owner in possession. Learned Appellate Court also held that the suit filed by the plaintiff through his next friend and his son Ishwar Singh for possession of the suit land was valid and legal, as the defendant who had no right over the suit land was not likely to be effected in any manner by filing of the suit. On these basis, while upholding the findings returned by the learned Trial Court, the learned Appellate Court dismissed the appeal of the defendant. Feeling aggrieved, defendant has filed the present appeal. 7. I have heard learned counsel for parties and also gone through the records of the case as well as judgment and decree passed by learned Courts below. 8. Substantial question of law, of which the appeal stands admitted, is as under:- 1. Whether the suit could be allowed to be presented through the next friend and what is the effect of such wrong presentation of the suit? 9. Perusal of the record demonstrates that in the plaint itself, it stood clearly mentioned that the suit was being filed by the plaintiff through his next friend i.e. his son as he was a man of low intelligence. Para-5 of the plaint is reproduced herein below: “5. 9. Perusal of the record demonstrates that in the plaint itself, it stood clearly mentioned that the suit was being filed by the plaintiff through his next friend i.e. his son as he was a man of low intelligence. Para-5 of the plaint is reproduced herein below: “5. That the plaintiff Sh. Deva Singh is a man of low intelligence hence the present suit is being presented through his son Ishwar Singh as next friend for the plaintiff. The separate application u/o 32 Rule 15 CPC is being filed alongwith the plaint.” 10. Application filed u/o 32 Rule 15 CPC was decided by the learned Trial Court vide order dated 3.7.2003, which reads as under:- “This order shall disposes of an application u/o 32 Rule 15 CPC read with section 151 CPC. It is averred that the applicant/plaintiff Shri Devi Singh is a person of low intelligence and is incapable of giving any statement before this Court. It is alleged that the plaintiff’s son Ishwar Singh is a fit person to be appointed as next friend for the plaintiff to file the present and has no adverse interest to that of the plaintiff. Prayed that the application be allowed. The defendant has not filed the written reply. I have heard the learned counsel for the parties and have also perused the record. Although the medical certificate of Devi Singh has not been placed on record by the plaintiff, but I have personally examined the plaintiff Devi Singh. From the appearance of the plaintiff, he is a person of low intelligence and is incapable of giving his statement. Therefore, this application u/o 32 Rule 15 CPC read with section 151 CPC is allowed and Shri Ishwar Singh, his son is hereby allowed to file the present suit in this Court as his next friend.” 11. Perusal of the above order demonstrates that the said application was allowed by the learned Trial Court after personally examining the plaintiff and after coming to the conclusion from the appearance of the plaintiff that he was a person of low intelligence and was incapable of giving his statement. Incidentally, this order was passed in the presence of the present appellant. Record as also the order referred to above passed by the learned Trial Court suggest that no reply to the application filed under Order 32 Rule 15 CPC (supra) was filed by the appellant. Incidentally, this order was passed in the presence of the present appellant. Record as also the order referred to above passed by the learned Trial Court suggest that no reply to the application filed under Order 32 Rule 15 CPC (supra) was filed by the appellant. Thus, there was no infirmity in learned Trial Court permitting the suit to be filed by the plaintiff through next friend and there was also no wrong presentation of the suit as alleged by the appellant. Record further suggests that order dated 3.7.2003, vide which the application filed under Order 32 Rule 15 CPC was allowed by the learned Trial Court, was accepted by the present appellant and the same was not assailed before any higher Court. In this view of the matter, it cannot be said that civil suit could not have been allowed to be presented through next friend. Learned Trial Court has done so after following the procedure i.e. after allowing application filed under Order 32 Rule 15 CPC by the plaintiff in this regard. Substantial question of law is answered accordingly. 12. In view of my findings above, as there is no merit in the present appeal, the same is accordingly dismissed. No order as to costs.