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2018 DIGILAW 929 (HP)

Jeet Ram v. Pritam Singh

2018-05-21

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal is maintained by the appellant, who was the plaintiff before the learned trial Court (hereinafter to be called as “the plaintiff”), laying challenge to the judgment and decree, dated 31.03.2005, passed by learned District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No. 30-CA/13 of 2003, whereby the judgment and decree, dated 24.03.2003, passed by learned Sub Judge, Court No. 1, Paonta Sahib, District Sirmaur, H.P, in Civil Suit No. 131/1 of 2001, was affirmed, wherein suit of the plaintiff was dismissed. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the plaintiff claimed himself to be co-owner in possession of the land, comprised in Khata/Khatauni No. 580/983, Khasra No. 109, measuring 12 Biswas, situated in Mauza Khagani, Tehsil Paonta Sahib, District Sirmaur (hereinafter to be called as the “suit land”). As per the plaintiff, the respondents/defendants (hereinafter to be called as “the defendants”) have no right, title or interest in the suit land. Further the defendants are trying to raise forcible construction by digging the foundation in the suit land, which leads the plaintiff to file a suit for permanent injunction, by restraining the defendants from raising forcible construction on the suit land. 3. The suit of the plaintiff was contested by the defendants by filling written statement, wherein it has been averred that neither the plaintiff, nor his predecessors- in-interest were ever remained in possession of the suit land as tenant. The suit land is a Gair Mumkin Abadi and since 35 years, there have been residential houses of the defendants and they have become owners by way of adverse possession. Lastly, they averred that proprietary rights upon the plaintiff and others, under the H.P. Tenancy and Land Reforms Act, are illegal, collusive and fraudulent and prayed for dismissal of the suit. 4. By filing replication, the contents of the plaint were reiterated. The learned trial Court on 16.04.2002 framed the following issues for determination and adjudication: “1. Whether the plaintiff is entitled for injunction as prayed? OPP 2. Whether the suit is not maintainable as alleged? OPD 3. Whether the defendants have become the owners by way of adverse possession as alleged? OPD 4. The learned trial Court on 16.04.2002 framed the following issues for determination and adjudication: “1. Whether the plaintiff is entitled for injunction as prayed? OPP 2. Whether the suit is not maintainable as alleged? OPD 3. Whether the defendants have become the owners by way of adverse possession as alleged? OPD 4. Whether the revenue entries in favour of plaintiff is collusive and fraudulent, null and void and not binding on the rights of defendants as alleged? OPD 5. Whether the plaintiff has no cause of action as alleged? OPD 6. Relief.” 5. After deciding issues No. 1, 3 and 4 in negative and issues No. 2 and 5 in affirmative, the suit of the plaintiff was dismissed. Subsequently, the plaintiff maintained an appeal before the learned first Appellate Court, which was also dismissed and the findings recorded by the learned trial Court were upheld. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law: “1. Whether the learned first Appellate Court erred in reversing the findings of the learned trial Court in respect of the adverse possession without there being any cross-objection by the defendants against the decision of the learned trial Court? 2. Whether the learned first Appellate Court misconstrued, misinterpreted the material evidence placed on record and ignored the admissible evidence in accepting the plea of adverse possession of the defendants?” 6. Leaned counsel for the appellant has argued that both the learned Courts below have not considered the evidence led by the plaintiff and so the appeal is required to be allowed. He has further argued that the learned first Appellate Court, without there being any appeal on behalf of the defendants regarding the findings against them, had set aside the findings, which has attained finality qua adverse possession. On the other hand, learned Senior Counsel appearing on behalf of the respondents has argued that after the amendment in Code of Civil Procedure, the findings which are against the party in whose favour the decree is, the party even without filing the cross-objection argue on the findings against him/her and so the cross-objections were not required to be filed and there is nothing wrong in the findings of the learned Court below. In rebuttal, learned counsel for the appellant has argued that the learned Court below has committed an error and the question of law, as framed, is required to be answered holding that the findings qua adverse possession cannot be set aside by the learned first Appellate Court. 7. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 8. The plaintiff appeared in the witness box as PW-1 and his statement reveals that the disputed land is 12 Biswas and the defendants trying to raise the plinth over the same. On 14.12.2001, the defendants started digging the suit land forcibly, whereafter the Panchayat members were called and work was stopped. In his cross-examination he denied that in the year 1950, the defendant’s predecessor-in-interest, taken the possession of the suit land and they have raised their construction and their possession is open as owner. He further denied that about 35 years back, predecessor-in-interest of the defendant has constructed the houses and they have not raised any objections, however he has voluntarily submitted that their houses are at their own land. 9. PW-2 Kishan Chand, has deposed that he knows the parties and the disputed land is 12 Biswas, belongs to Rulda, Sukar and Bishna and now their heirs are in possession of the same. In his cross-examination, he admitted that neither the children of Sukar are residing in the disputed land, nor the sons of Ami Chand. He has further admitted that the house of the defendants consisting of three rooms and one varanda. He denied that the house is 35 years old, but stated that it is about 5-6 years old. He further denied that adjacent to that house, there is another house, which is of four room. He has admitted that in the four rooms’ house, Rattan Pal is residing and that house is 20 years old. He further admitted that father of the defendants is residing on the suit land since 1950, but stated that the disputed land is another one. He has stated that the disputed land is 4 Biswas, which the defendants are trying to dig. 10. The defendant Pritam Singh appeared in the witness box as DW-1 and stated that their predecessors are residing in the suit land from 35-36 years and the plaintiff neither came there nor residing there. He has stated that the disputed land is 4 Biswas, which the defendants are trying to dig. 10. The defendant Pritam Singh appeared in the witness box as DW-1 and stated that their predecessors are residing in the suit land from 35-36 years and the plaintiff neither came there nor residing there. He further stated that the plaintiff is residing in different places and mutation has wrongly been attested in his favour and he never cultivated the disputed land. In his cross-examination, he denied that they were aware about the entries in favour of the plaintiff. He admitted that the inheritance of Sukar was attested in favour of the plaintiffs, but voluntarily submitted that their houses are there. 11. DW-2, Jashmer Singh, has deposed that neither the plaintiff nor his father residing in the disputed land. In his cross-examination, he admitted that mutation of Sukar was attested in favour of his heirs in his presence. He further admitted that the disputed land is 12 Biswas and the same is not in possession of the plaintiff. 12. DW-3, Dyal Singh, has deposed that the disputed land is 12 Biswas, which belongs to the defendants and they are residing there. In his cross-examination, he denied that on 12.12.2001 and 14.12.2001, the defendants tried to dig the foundations and the land does not belong to them. 13. From the evidence, it is clear that the land was not under cultivation and there were houses. Though the defendants have not preferred any cross-objections against the findings with regard to adverse possession against them, however the law to this aspect is very clear. 14. The Hon’ble High Court of Himachal Pradesh in Ram Rakhi vs Attri and another, AIR 1993 HP 137 , has held as under:- “6. About second point Mr. Barowalia, learned counsel for the respondents/plaintiffs has raised preliminary objection that it cannot be considered by this Court in the present appeal as the appellant/defendant had not filed cross-objections challenging the findings of the trial Court, which have now become final between the parties. The District Judge had also not considered this point for this reason. For making his sub-mission Mr. Barowalia has relied upon Krishan Dev vs. Smt. Ram Piari, AIR 1964 HP 34 . But in view of the amended provisions of Order 41, Rule 22, read with Rule 33, C.P.C. this preliminary objection is without any force.” 15. The District Judge had also not considered this point for this reason. For making his sub-mission Mr. Barowalia has relied upon Krishan Dev vs. Smt. Ram Piari, AIR 1964 HP 34 . But in view of the amended provisions of Order 41, Rule 22, read with Rule 33, C.P.C. this preliminary objection is without any force.” 15. The Division Bench of Hon’ble Supreme Court in Banarsi and Others vs. Ram Phal, (2003) 9 SCC 606 , have held as under:- “10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we well shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations: (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent. (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. 11. In the type of case (I) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amendment CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.” 16. From the above it is clear that even without there being cross-objections, the party against whom the findings are, can assail the findings against him/her after the amendment in the Code of Civil Procedure, but the only difference is that while maintaining cross-objections, even if the other party withdraws the appeal, cross-objections are required to be disposed of on merits, but In the case no cross-objections were filed, so the findings against the party, who has neither filed the appeal nor cross-objections when the other party withdraws the appeal, cannot be gone into. In the present case, the appeal was not withdrawn, so substantial question of law No. 1 is answered holding that the learned first Appellate Court has not erred in reversing the findings of the adverse possession, without there being any cross-objections on behalf of the defendants. 17. The testimonies of defendant’s witnesses shows that the defendants are in continues possession of the suit land, upon which their predecessors-in-interest have raised their pucca house, consisting of three rooms and a verandah. 17. The testimonies of defendant’s witnesses shows that the defendants are in continues possession of the suit land, upon which their predecessors-in-interest have raised their pucca house, consisting of three rooms and a verandah. All these witnesses denied in their cross-examination that the defendants tried to dig the foundations in the suit land. The fact that the defendants are in adverse possession of the suit land is quite obvious on the plaintiff’s own showing, as he has himself admitted that he has been residing in Amargarh, which is at a distance of 25 Kms from the suit land. PW-2, Kishan Chand in his cross-examination has also admitted that children of Sukar, including the plaintiff are not residing in the suit land and he only saw the defendant’s house on the suit land. Though, this witness has denied that the said house is constructed 35 years back, but stated that it is 5-6 years old and admitted that he had also seen the house of defendant Rattan Pal, which consists of 3-4 room and the same is existed there for the last 20 years. From this admission, coupled with the evidence of the defendants, it is clear that the defendants have been living on the suit land since 1950 and they have raised pucca houses on the same, which have been constructed beyond 12 years, before the filing of the suit, as such they have already acquired title by way of adverse possession by the time suit was filed. Therefore, the findings recorded by the learned Court below are as per law and the substantial question of law No. 2 is answered holding that the learned first Appellate Court has not misconstrued, misinterpreted and misapplied the material on record and ignored admissible evidence in accepting the plea of adverse possession of the defendants and refusing alternative relief of possession to the plaintiff on title. 18. The net result of the above discussion is that the present appeal, sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stand(s) disposed of. However in the peculiar facts and circumstances of the case, parties are left to bear their own costs.