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2019 DIGILAW 1165 (HP)

Meena Devi v. Ranjit Singh

2019-08-13

AJAY MOHAN GOEL

body2019
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this appeal, the appellants have prayed for the following relief:- "It is, therefore, most respectfully prayed that in view of the submissions made hereinabove, after summoning the respondents and sending for the record, this appeal may kindly be allowed and judgment and decree dated 27.10.2016 passed by learned Additional District Judge, Hamirpur, in Civil Appeal No.139 of 2013 RBT No.161 of 2014 as well as the judgment and decree dated 26.09.2013 of the learned Civil Judge (Junior Division), Court No.II, Hamirpur, in civil suit No.112 of 2008 may kindly be set aside after dismissing the suit of the respondent/ plaintiff with cost throughout and justice be done". 2. Brief facts necessary for the adjudication of the present appeal are as under:- Respondent/ plaintiff Ranjit Singh (hereinafter to be referred as the 'Plaintiff") filed a suit for possession and permanent prohibitory injunction, restraining the appellants/ defendants from digging, raising construction and interfering with the suit land comprised in khata No.144 min, khatauni No.165 min, khasra No.1582/1239, measuring 2 Kanals 11 Marlas, situated in Tikka Dhirad, Mauza Mewa, Tehsil Bhoranj, District Hamirpur, H.P. 3. The case of the plaintiff was that he was owner in possession of the suit land. Defendants were strangers to the suit land and had trespassed upon the same in the absence of plaintiff and his family members and also constructed a part of their building over the suit land. When the defendants were requested to vacate the encroachment, they stated that plaintiff should get the land demarcated and if any encroachment was found upon the land of the plaintiff, then the same shall be vacated by the defendants or the plaintiff shall be compensated by way of exchange of land. The suit land was got demarcated on 21.03.2008, which revealed that defendants had encroached upon the suit land. Following this, defendant No.4 Manohar Lal, who was a patwari, compelled the plaintiff to compromise the dispute which was reduced in writing on 30.03.2008, as per which the parties were to exchange 1 Kanal of land from the suit land with khasra No.1238/290. After the compromise, plaintiff had gone to Sirmour. Defendants in the meanwhile fenced 1 Kanal out of the suit land, but refused to exchange the land as per the compromise. They also refused to vacate the encroachment over the suit land. After the compromise, plaintiff had gone to Sirmour. Defendants in the meanwhile fenced 1 Kanal out of the suit land, but refused to exchange the land as per the compromise. They also refused to vacate the encroachment over the suit land. In these circumstances, plaintiff filed the suit. 4. The suit was resisted by defendants, who took the stand that in terms of the compromise dated 12.03.2008, defendants had become owners to the extent of 1 Kanal of the suit land. According to the defendants, in the alternative they had perfected their title over the portion of the suit land measuring 1 Kanal by way of adverse possession. Defendants did not dispute the execution of agreement dated 30.03.2008 and stated that they were willing to perform their part of the terms of the compromise. 5. On the basis of the pleadings of the parties, learned trial Court framed the following issues:- "1. Whether the plaintiff is entitled for possession by way of demolition, as prayed for? OPP. 2. Whether the plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for? OPP. 3. whether the suit of the plaintiff is not maintainable in the present form, as alleged? OPD. 4. whether the plaintiff has got no cause of action to file the present suit, as alleged? OPD. 5. Whether the plaintiff has got no locus-standi to file the present suit, as alleged? OPD. 6. Whether the plaintiff is estopped by his own act and conduct from filing the present suit, as alleged? OPD. 7. Whether the suit of the plaintiff is liable to be dismissed with special costs as prayed for? OPD. 8. Relief. 6. On the basis of evidence led by the parties in support of their respective contentions, learned Trial Court returned the following findings on the issues so framed:- "Issue No.1 : Yes. Issue No.2 : Yes. Issue No.3 : No. Issue No.4 : No. Issue No.5 : No. Issue No.6 : No. Issue No.7 : No. Relief : Suit of the plaintiff is decreed as per operative part of the judgment". 7. Issue No.2 : Yes. Issue No.3 : No. Issue No.4 : No. Issue No.5 : No. Issue No.6 : No. Issue No.7 : No. Relief : Suit of the plaintiff is decreed as per operative part of the judgment". 7. Learned trial Court, thus decreed the suit of the plaintiff by holding that it stood proved on record from the demarcation report Ext.OW-1/A, as also the compromise dated 30.03.2008 Ext.PW-1/A, entered into between plaintiff and defendants and further Aks Tatima Ext.OW-1/B that the defendants had encroached upon land comprised in khasra No.1582/1239/1 and 1582/1239/2 to the extent of OK-8M (0 Karam-8 Marla), which was in possession of the defendants as shown in Aks Tatima Ext.OW-1/B and that the plaintiff was entitled to recover vacant possession of the said land from the defendants. Learned trial Court also restrained the defendants by way of permanent prohibitory injunction from digging, raising construction or interfering over the suit land. 8. While arriving at the said conclusion, learned trial Court held that neither the demarcation report nor the compromise entered into between the parties was in dispute. It negated the plea of defendants that the demarcation was not carried out in accordance with law. Learned trial Court upheld the contention of the plaintiff that whereas the plaintiff was always willing to perform his part of the compromise Ext.PW-1/A, however, it were the defendants who resiled from performing their part of the said compromise. 9. In appeal, learned Appellate Court while upholding the findings of the learned trial Court, dismissed the appeal filed by the defendants before it. Learned Appellate Court held that perusal of pleadings and evidence clearly demonstrated that defendants were in possession of a part of the suit land and though defendants tried to allege that said possession was by way of exchange and was old construction, however, they had failed to prove the same by leading cogent and reliable evidence. Learned Appellate Court held that it could be safely concluded that defendants had encroached over the suit land, which encroachment stood identified and established by the evidence of the Local Commissioner. Learned Appellate Court also held that defendants were in possession of OK-8M (0 Karam-8 Marla) land of the suit land and the plea of adverse possession taken by the defendants could not be established by them. Learned Appellate Court also held that defendants were in possession of OK-8M (0 Karam-8 Marla) land of the suit land and the plea of adverse possession taken by the defendants could not be established by them. Learned Appellate Court thus concluded that learned lower Court had committed no illegality in appreciation of oral as well as documentary evidence on record and conclusions arrived at by the learned lower Court were sustainable both on facts and evidence. 10. Feeling aggrieved by the judgments and decrees passed by both the learned Courts below, appellants have filed the present appeal which was admitted by this Court on 09.03.2018, on the following substantial question of law:- "(1) Whether on account of mis-appreciation of the pleadings and misreading of the oral as well as documentary evidence available on record the findings recorded by both the Courts below are erroneous and as such the judgment and decree impugned in the main appeal being perverse is vitiated and not legally sustainable?" 11. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by both the learned Courts below as well as record of the case. 12. I will now deal with the substantial question of law. 13. The ownership of the plaintiff over the suit land is not in dispute as the same has not only been proved on record by the revenue record which the plaintiff has placed on record as Ext.P-1 to Ext.P-4, the factum of the plaintiff being owner of the suit land has not been disputed even by the defendants. However, learned counsel for the appellants/ defendants has argued that learned Courts below have erred in not appreciating the documentary as well as other evidence on record, which clearly demonstrated that defendants had become owners of the suit land by way of adverse possession and further that defendants had never resiled from the terms of compromise Ext.PW-1/A. 14. In my considered view, there is no merit in the said contention of the learned counsel for the appellants. A perusal of the written statement filed by the defendants demonstrates that the averments made in the same with regard to the defendants having perfected their title over the suit land by way of adverse possession are cryptic and vague. In my considered view, there is no merit in the said contention of the learned counsel for the appellants. A perusal of the written statement filed by the defendants demonstrates that the averments made in the same with regard to the defendants having perfected their title over the suit land by way of adverse possession are cryptic and vague. There is no mention in the written statement as to since when the defendants were in possession of the suit land and as from what date, their possession over the same had ripened into adverse possession being open, peaceful and hostile to the knowledge of the owner. 15. Besides this, a perusal of the demarcation report categorically demonstrates that it is mentioned therein that the defendants have encroached upon OK-8M (0 Karam-8 Marla) of the suit land. The compromise Ext.PW-1/A has been proved not to have been acted upon by the defendants. In other words, defendants have not placed any material on record to substantiate that in terms of the compromise Ext.PW-1/A, land equivalent in their possession of the plaintiff was handed over by them to the plaintiff by way of exchange. 16. In these circumstances, it cannot be held that there is any mis-appreciation of pleadings or mis-reading of the oral or documentary evidence on record. Substantial question of law is answered accordingly. 17. In view of the findings returned hereinabove, as this Court does not finds any merit in the present appeal, the same is accordingly dismissed. Pending miscellaneous applications, if any, stand dismissed. Interim order, if any, also stands vacated.