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2019 DIGILAW 1353 (HP)

Ram Lok v. Bimla Devi

2019-09-11

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant has prayed for the following reliefs: ?It is, therefore, most humbly and respectfully prayed that the present appeal may kindly be allowed and calls for the record of the case and after examining the legality and propriety, the impugned judgment and decree dated 12.12.2018 passed by the Ld. District Judge, Bilaspur, District Bilaspur, H.P. in Civil Appeal No. 21/13 of 2018, in Civil Appeal titled as Ram Lok Vs. Smt. Bimla Devi & another, whereby the Ld. District Judge, Bilaspur, District Bilaspur, H.P. has affirmed the findings of the Ld. Civil Judge (Senior Division), Bilaspur, District Bilaspur, H.P. dated 28.02.2018, passed in Civil Suit No. 116/1 of 2011, titled as Smt. Bimla Devi Vs. Ram Lok & Another be pleased to set aside the impugned judgment and decree of the Courts below and consequently allow the present appeal and dismissed the suit of the respondent/plaintiff. Any other further orders which this Hon'ble Court may deem fit, in the facts and circumstances of the case may kindly be passed in favour of the appellant and against the respondent.? 2. Brief facts necessary for the adjudication of the present appeal are as under: Respondent No. 1-Bimla Devi filed a suit for permanent prohibitory injunction and in the alternative for a decree for possession against the defendants, on the ground that the plaintiff was owner in possession of the suit land comprised in Khasra No. 389/294, Khewat No. 111, Khatauni No. 115, measuring 2.00 bighas, situated in Village Jamthal, Pargana and Tehsil Sadar, District Bilaspur, H.P. As per the plaintiff, defendants were threatening to dispossess the plaintiff from the suit land forcibly, as they intended to carry out construction over the suit land by cutting trees and if they were not restrained from interfering in the suit land, they would forcibly dispossess the plaintiff. Alternatively, the plaintiff contended that if it was found that the plaintiff was not in possession of the suit land, then a decree of possession on the basis of title be passed in favour of the plaintiff. 3. Defendants denied the claim of the plaintiff, inter alia, on the ground that the suit for injunction was not maintainable as plaintiff was not in possession of the suit land. 3. Defendants denied the claim of the plaintiff, inter alia, on the ground that the suit for injunction was not maintainable as plaintiff was not in possession of the suit land. As per the defendants, they were in possession of the suit land and since an application for correction of revenue entries was filed by the defendants, the plaintiff had filed the suit to defeat their said right. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues: ?1. Whether the plaintiff is entitled for permanent prohibitory injunctions as claimed? OPP 2. In alternatively, whether the plaintiff is entitled for a decree of possession in case she is dispossessed or is not found in possession as alleged? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has concealed the material facts as alleged? OPD. 5. Whether the defendants have become proprietors by operation of law in view of The Himachal Pradesh Tenancy and Land Reforms Act, 1972 as alleged? OPD 6. Whether the suit is liable to be stayed because of pendency of an application filed by defendants before Land Reforms Officer as alleged? OPD 7. Whether the plaintiff has no cause of action to file the present suit? OPD 8. Relief. 5. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned Trial Court on the issues so framed: ? "Issue No. 1 Yes. Issue No. 2 Yes. Yes. Issue No. 3 No. Issue No. 4 No. Issue No. 5 No. Issue No. 6 No. Issue No. 7 No. Relief The suit of the plaintiff is decree as per operative part of the judgment." 6. Learned Trial Court dismissed the suit by holding that as per the revenue record, the plaintiff was owner in possession as was evident from Jamabandi Ex. PW1/F. It held that Khasra Girdawari pertaining to the suit land Ex. PW1/G also described the possession over the suit land to be that of the plaintiff. Learned Trial Court further held that there was no specific evidence to prove that there was an agreement of tenancy between the plaintiff and defendants and thus, possession of the defendants over the suit land by way of cultivation was merely interference and encroachment over the suit land. Learned Trial Court further held that there was no specific evidence to prove that there was an agreement of tenancy between the plaintiff and defendants and thus, possession of the defendants over the suit land by way of cultivation was merely interference and encroachment over the suit land. Learned Court also held that defendants had failed to establish any right to remain in possession over the suit land and hence plaintiff being owner in possession, had a right to restrain the defendants from interfering in any manner over the suit land. Learned Court also held that as plaintiff was not residing at the village where the suit land was situated, it was easy for defendants to cultivate the suit land in her absence and in fact report of the Kanungo was also obtained in her absence. It thus held that plaintiff being owner qua the suit land, was entitled for possession of the same. Learned Court also held that there was no evidence of tenancy or any agreement or rent receipts, therefore, the plea of the defendants that they had become owners of the suit land by operation of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, could not be accepted. Learned Court also held that as the report prepared by the Kanungo demonstrated that the same was prepared without following the procedure, as is prescribed in Himachal Pradesh Tenancy and Land Reforms Act, therefore, the Civil Court was having jurisdiction to adjudicate upon the suit. Accordingly, the suit filed by the plaintiff was decreed by the learned Trial Court in the following terms: ?17. In view of my findings on issues No. 1 to 7 above, the suit of the plaintiff is decreed and defendants are restrained by way of permanent prohibitory injunction from causing interference, cutting trees, changing the nature of the suit land and plaintiff is also entitled to the vacant possession of the suit land. Suit is decreed with costs. Decree sheet be prepared accordingly. File after its due completion, be consigned to the record room.? 7. In appeal, the findings of the learned Trial Court have been upheld by the learned Appellate Court with part modification. Learned Appellate Court held that revenue record clearly demonstrated that Bimla Devi, daughter of Moti Ram was exclusive owner in possession of the suit land. File after its due completion, be consigned to the record room.? 7. In appeal, the findings of the learned Trial Court have been upheld by the learned Appellate Court with part modification. Learned Appellate Court held that revenue record clearly demonstrated that Bimla Devi, daughter of Moti Ram was exclusive owner in possession of the suit land. It held that in the copy of Khasra Girdawari in the column of possession, the possession of Smt. Bimla Devi was duly recorded and she was reflected to be in cultivating possession of the suit land. Name of defendants was not reflected either in the column of ownership or possession as per the revenue record placed on record. Learned Appellate Court also held that earlier there was litigation filed by Shri Jeet Ram, son of Shri Sukh Ram, i.e., the father of the defendants and a perusal of the judgment passed in the said case, certified copy of which was on record as Ex. Pw1/B (Civil Suit No. 79/1 of 2001, instituted on 27.06.2001, decided on 31.07.2004, titled as Jeet Ram Vs. Smt. Bohri etc.) demonstrated that Jeet Ram had filed a suit for declaration against Smt. Bohri, widow of Sh. Moti Ram, Smt. Bimla Devi, wife of Shri Shankar, Shri Sewa Dass, son of Shri Moti, Smt. Shankuntla, wife of Shri Dhani Ram and Smt. Roshani, wife of Shri Kirpa Ram. Jeet Ram had claimed the suit land as well as other land on the basis of adverse possession and whereas the said suit filed by Jeet Ram was dismissed, Counter claim filed by the defendants therein was decreed, whereby Jeet Ram was restrained from interfering with the possession of defendants No. 2 to 5 from the suit land qua their share in the suit land. Learned Appellate Court held that appeal filed by Jeet Ram was dismissed and the judgment passed by the Appellate Court was also on record as Ex. PW1/D. Learned Appellate Court further held that in the case in hand, defendants had claimed tenancy over the suit land and thus, plea of theirs was totally contrary to the plea taken by their father in the earlier litigation. Learned Appellate Court took note of the fact that in the case filed by Jeet Ram, he had not taken any plea of alleged tenancy over the suit land. Learned Appellate Court took note of the fact that in the case filed by Jeet Ram, he had not taken any plea of alleged tenancy over the suit land. Learned Appellate Court also held that there was no evidence on record to demonstrate that defendants were tenants over the suit land and as tenancy was not proved on record, there was no question of defendants acquiring title of confirmation of proprietary rights by efflux of law. Learned Appellate Court further held that as plaintiff was found to be owner in possession of the suit land, findings returned by the learned Trial Court qua Issue No. 2 were not sustainable in the eyes of law and the same were accordingly set aside in view of the earlier litigation. The appeal was accordingly dismissed and the decree granted to the plaintiff was re-constructed in the following manner: ?The suit of the plaintiff is decreed and defendants are restrained by way of permanent prohibitory injunction from causing interference, cutting trees and changing the nature of the suit land comprised in Khasra No. 389/294, Khewat No. 111, Khatauni No. 115, land measuring 2-00 bighas, situated in Village Jamthal, Pargana and Tehsil Sadar, District Bilaspur, H.P.? 8. Feeling aggrieved, the appellant/defendant filed this appeal. 9. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by the learned Courts below. 10. In the present case, there are concurrent findings of fact returned in favour of the plaintiff and against the defendants by the learned Courts below to the effect that the plaintiff is owner in possession of the suit land. There are also concurrent findings of facts returned by the learned Courts below against the defendants that they had failed to prove their tenancy over the suit land and therefore, it could not be held that they had acquired proprietorship over the suit land. Learned Courts below have also held that the plea of tenancy taken by the defendants was not tenable in the eyes of law as the same was totally contrary to the plea taken by their father qua the same suit land against the same owners of the suit land, including the plaintiff in this case, wherein the father of the defendants had unsuccessfully taken the plea that he had become owner of the suit land by way of adverse possession. Both the leaned Courts below have also held concurrently against the plaintiff and in favour of the defendants that in the previous lis, the father of the present defendants had not taken alternative plea of tenancy. Therefore, what is borne out from the judgments passed by both the learned Courts below is that it is the plaintiff who is owner in possession of the suit land. Defendants are strangers to the suit land. Revenue records reflect plaintiff to be owner in possession of the suit land. Defendants are causing interference over the suit land and as defendants are strangers as far as the suit land is concerned, they had no right to interfere in the peaceful possession over the suit land. Learned Senior Counsel for the appellant could not demonstrate that these findings were perverse and contrary to record. Therefore, all these factors as they stand determined by the learned Courts below lead to only one conclusion that in this appeal, there is no question of law involved, leave aside any substantial question of law. 11. In this view of the matter, as this Court does not find any substantial question of law involved in the appeal, the same is dismissed, so also pending miscellaneous applications, if any. No order as to costs.