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2018 DIGILAW 634 (HP)

Bhoop Ram v. Karam Chand

2018-04-12

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J —By way of this appeal, the appellants have challenged the judgment and decree passed by the Court of District Judge, Kullu, in Civil Appeal No. 32/2002, vide which the learned Court while dismissing the appeal filed by the present appellants/defendants before it, upheld the judgment and decree passed by the Court of learned Senior Sub Judge, Kullu, in Civil Suit No.199 of 1998 titled as Karam Chand and others Vs. Bhoop Ram and another, whereby the learned Trial Court decreed the suit filed before it by the plaintiffs therein i.e. present respondents for possession of suit land by way of demolition. 2. Brief facts, necessary for adjudication of the present appeal are that respondents/plaintiffs (hereinafter referred to as the "plaintiffs") filed a suit for permanent prohibitory injunction and in the alternative for possession against the appellants/defendants (hereinafter referred to as the "defendants") on the ground that they are owners in possession of suit land comprised in Khata Khatauni No.40/61, Khasra No.2021/941 measuring 0-13 biswas situated in Phati and Kothi Chong, Tehsil and Distt. Kullu, and that the defendants, who were strangers to the suit land were pressurizing the plaintiffs to sell the same in their favour so that they could make the commercial use of the same. According to the plaintiffs, when they refused to sell the suit land to the defendants, the defendants started causing unlawful interference in their ownership and possession over the suit land by raising construction of house upon it. During the pendency of the suit, an amendment was carried out in the plaint, by way of which it was mentioned that during the pendency of the suit, despite ad-interim injunction, defendants had encroached upon the land measuring 0-2 biswas out of the suit land by constructing house thereon, which possession of the defendants was illegal and without title. The plaintiffs thus prayed for a decree of permanent prohibitory injunction, restraining the defendants from causing any unlawful interference in their ownership and possession over the suit land and for restraining the defendants from raising any construction etc. on the same and for encroaching the same as also for possession of land measuring 0-2 biswas, which illegally stood encroached upon by the defendants during the pendency of the suit after demolition of structure raised upon it. 3. on the same and for encroaching the same as also for possession of land measuring 0-2 biswas, which illegally stood encroached upon by the defendants during the pendency of the suit after demolition of structure raised upon it. 3. The suit was resisted by the defendants, who inter alia took the stand that the plaintiffs were neither owners nor in possession of the suit land. As per the defendants, defendant No.1 was in open, peaceful and continuous possession of four biswas of land out of the suit land and this possession is for the last more than 12 years to the knowledge and notice of the plaintiffs and defendant No.1 had thus perfected his title over the same by way of adverse possession. Defendant No.1 further stated that he had constructed two and half storeyed building over the suit land between 1984 and 1987 and said construction was never objected to by the plaintiffs. However, as per the defendants, in the course of purchase of one biswa of land from one Sh. Lalu, comprised in Khasra No.2074/940 for a sum of ''500/-, in the year 1984, defendant No.1 encroached upon the suit land measuring four biswas for the purpose of construction of the house upon it, he had raised construction and qua which, no objection at any stage was raised by the plaintiffs. 4. On the basis of pleadings of parties, learned Trial Court framed following issues:- 1. Whether the plaintiffs are owners in possession of suit land, as alleged? ..OPP 2. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed for? ..OPP 3. Whether the plaintiffs are entitled for the relief of possession by way of demolition, as alleged? ..OPP 4. Whether this suit is not maintainable, as alleged? ..OPD 5. Whether this suit is time barred? ..OPD 6. Whether defendant No.1 has become owner of four biswas of land out of suit land comprising Khasra No.2021/941/2 and Khasra No.2021/941/1 as shown in Tatima, by way of adverse possession, as alleged? .OPD 7. Whether the plaintiffs are estopped from filing this suit by their act and conduct, as alleged? ..OPD 8. Whether this suit is not properly valued for the purposes of court fees and jurisdiction, if so what is the correct value? ..OPD 8-A. Whether the plaintiffs are entitled for possession of suit land by way of demolition, as alleged? ..OPP 9. Relief. ..OPD 8. Whether this suit is not properly valued for the purposes of court fees and jurisdiction, if so what is the correct value? ..OPD 8-A. Whether the plaintiffs are entitled for possession of suit land by way of demolition, as alleged? ..OPP 9. Relief. 5. Learned Trial Court vide judgment and decree dated 16.4.2002 held that evidence demonstrated that it had come on record that defendant No.1 had constructed building over part of the suit land and, therefore, the plaintiffs were only found to be owners and not in possession of the same though they were recorded owners in possession in the revenue record for the year 1992-93. Learned Trial Court also held that the defendants had failed to prove on record the exact date from which part of the suit land was in their possession and when said possession perfected by them into ownership by way of adverse possession. It thus held that defendant No.1 had not become owner of the land in issue by way of adverse possession. Learned Trial Court thus decreed the alternative plea of the plaintiffs for possession of the suit land by way of demolition of structure in favour of the plaintiffs and against the defendants. 6. Feeling aggrieved, defendants filed an appeal. Learned Appellate Court dismissed the appeal vide judgment and decree dated 01.08.2002. It was held by the learned Appellate Court that plea of the defendants of purchasing of one biswa of land in the year 1984 was not inspiring confidence as the material witness Lalu, from whom the land was allegedly purchased was withheld by the defendants from the Court. Learned Appellate Court has held that defendant No.1 had failed to examine the person from whom timber slates were purchased by him for the alleged construction which was carried out by him over the suit land between 1984 to 1987. It thus held that there was no evidence led, from which it could be inferred that between 1984 to 1987, defendants had constructed building over four biswas of land. Learned Appellate Court also held that defendant No.1 had failed to prove that he had perfected his title over the suit land by way of adverse possession. It thus held that there was no evidence led, from which it could be inferred that between 1984 to 1987, defendants had constructed building over four biswas of land. Learned Appellate Court also held that defendant No.1 had failed to prove that he had perfected his title over the suit land by way of adverse possession. It further held that from the testimonies of PW-1 & PW-2 it appeared that defendants had started interfering in ownership and possession of the plaintiffs over the suit land in the year 1998 and it was during pendency of the suit, despite stay order from the Court, defendants had completed their construction. It was held by the learned Appellate Court that version of the plaintiffs was believable that in the year 1998, defendants had started interference in ownership and possession of the plaintiffs over the suit land. On these basis, learned Appellate Court dismissed the appeal. 7. Feeling aggrieved by the judgment and decree passed by the learned Appellate Court, defendants have filed the present appeal. 8. On 16.12.2002, the present appeal was admitted on following substantial questions of law:- 1. Whether the learned Appellate Court has misconstrued and misinterpreted Ext.DW2/A resulting in wrong findings, if so its effect? 2. Whether the learned Appellate Court erred in law in drawing adverse inference against the appellants under Section 114 of Evidence Act when DW1 Smt. Chobi Devi, wife of Shri Bhoop Ram deposed as witness? 3. Whether the learned Appellate Court has erred in law in not appreciating the principles of adverse possession in the facts and circumstances of the case resulting in error of law and miscarriage of justice? 9. 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. 10. I will deal with all the substantial questions of law independently. Substantial question of law No.1: 11. Ext.Dw-2/A is a copy of receipt dated 02.10.1984. It is not in dispute that said receipt is written in Urdu and there is no Hindi translation of the same placed on record by the defendants, which could have demonstrated as to what was sold by Lalu in favour of defendant No.1. Substantial question of law No.1: 11. Ext.Dw-2/A is a copy of receipt dated 02.10.1984. It is not in dispute that said receipt is written in Urdu and there is no Hindi translation of the same placed on record by the defendants, which could have demonstrated as to what was sold by Lalu in favour of defendant No.1. Learned Appellate Court while discussing Ext.DW-2/A categorically held that there was nothing on record which demonstrated that Lalu, who allegedly entered into an agreement to sell one biswa of land, was in fact the actual owner of the said land at any point of time. During the course of arguments, learned counsel for the appellants could not demonstrate that the findings so returned by the learned Trial Court and affirmed by the learned Appellate Court, were perverse. The defendants in fact have not been able to substantiate their case on the basis of Ext.DW-2/A. This document no where substantiates the stand of the defendants in the written statement, who otherwise claimed to have become owners of four biswas of land out of the suit land by way of adverse possession. Incidentally, as has also been held by the learned Appellate Court why Lalu, who allegedly was owner of the land, from whom one biswa of land was purchased by defendant No.1, was not produced in the Court, could not be satisfactorily explained by the learned counsel for the appellants. As has also been observed by the learned Appellate Court, apparently there are interpolations in document Ext.DW-2/A and this has also not been satisfactorily explained by defendants. There is no evidence from which it could be inferred that at any stage defendant No.1 was put in possession of one biswa of land in terms of Ext.DW-2/A. Therefore, it cannot be said that learned Appellate Court has misread, misconstrued or misinterpreted Ext.DW-2/A. Substantial question of law No.1 is answered accordingly. Substantial question of law No.2: 12. There is no evidence from which it could be inferred that at any stage defendant No.1 was put in possession of one biswa of land in terms of Ext.DW-2/A. Therefore, it cannot be said that learned Appellate Court has misread, misconstrued or misinterpreted Ext.DW-2/A. Substantial question of law No.1 is answered accordingly. Substantial question of law No.2: 12. As has already mentioned above, there is no infirmity with the interpretation of Ext.DW-2/A as far as the learned Courts below are concerned, and both the learned Courts below have rightly come to the conclusion that sale of one biswa of land by Lalu in favour of defendants (defendant No.1) , was not proved by the defendants on the strength of Ext.DW-2/A. Learned Appellate Court rightly held that the best evidence to prove Ext.DW-2/A, Lalu was withheld from the Court by the defendants. Learned Appellate Court, in these circumstances, correctly held that an adverse inference had to be drawn under Section 114 of the Evidence Act because had the defendants produced Lalu, he might not have had supported their case. In my considered view, it cannot be said that an adverse inference drawn by the learned Appellate Court under Section 114 of the Evidence Act, was bad in law. Witnesses produced by the defendants in support of Ext.DW-2/A could not prove the sale of one biswa of land by Lalu to defendant No.1. That being so, withholding of Lalu from the witness box by the defendants is an act, which calls for drawing an adverse inference against the defendants. Reason as to why Lalu was withheld from the Court apparently was that had he deposed in the Court, he might not have had supported the case of the defendants. Therefore, it cannot be said that learned Appellate Court erred in drawing adverse inference against the defendants under Section 114 of the Evidence Act. Substantial question of law No.2 is answered accordingly. Substantial question of law No.3: 13. In my considered view, it cannot be said that learned Appellate Court erred in appreciating the principle of adverse possession. Judgment passed by the learned Appellate Court in detail deals with this aspect of the matter and after adequate reasonings, learned Appellate Court has concurred with the view of the learned Trial Court that defendants had encroached upon the suit land and had not perfected their title by way of adverse possession. Judgment passed by the learned Appellate Court in detail deals with this aspect of the matter and after adequate reasonings, learned Appellate Court has concurred with the view of the learned Trial Court that defendants had encroached upon the suit land and had not perfected their title by way of adverse possession. It is settled principle of law that in order to prove adverse possession, party has to prove in the Court that its possession over the land was open, peaceful and hostile as to the true owner for more than 12 years. Foundation of the same has to be laid in the written statement itself. When one peruses the written statement, the foundation laid therein to prove that the defendants had become owners, was vague and not inconformity with law. Even the evidence so adduced by the defendants does not meet the legal parameters laid down in this regard by Hon''ble Supreme Court. This Court is not dwelling on this aspect of the matter in detail, because the same has been adequately dealt with by the learned Appellate Court itself, which findings are concurred to by this Court. Substantial question of law No.3 is answered accordingly. 14. In view of the above discussion, as there is no merit in the present appeal, the same is accordingly dismissed. No order as to costs.