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2019 DIGILAW 1394 (HP)

Shashikant v. Krishna @ Krishan Singh

2019-09-17

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellants/defendants have challenged the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.), Jawali, District Kangra, H.P. in Civil Suit No. 230/2003, decided on 17.04.2006, vide which, learned Trial Court decreed the suit filed by the present respondent/plaintiff for possession of suit land, as also the judgment and decree passed by the Court of learned District Judge, Kangra at Dharamshala, District Kangra (HP), in Civil Appeal No.91-J/XIII/2006, dated 04.08.2008, whereby learned Appellate Court while dismissing the appeal filed by the present appellants/ defendants, upheld the judgment and decree passed by the learned trial Court. 2. Brief facts necessary for adjudication of the present appeal are as under:- Plaintiff Krishna @ Krishan Singh filed a suit for possession against the defendants, i.e. present appellants, on the ground that she was owner of the suit land comprised in Khata No.79 min, khatauni No.202, Khasra No.107, measuring 0-09-53 hectares, situated in Mohal Katholi, Mauza Nagrota-Surian, Tehsil Jawali, District Kangra, H.P. (hereinafter referred to as the 'suit land'). Defendants were the owners of the land adjacent to the suit land and had no right, title or interest over the same. Despite this, defendants had forcibly obtained the possession of the suit land on 28.10.2002 without the consent of the plaintiff and when plaintiff protested, defendants assured to hand over the possession thereof to the plaintiff, however, subject to demarcation. Plaintiff obtained demarcation of the suit land on 27.07.2003, which demonstrated that defendants were in possession of the suit land. Thereafter, plaintiff requested the defendants to handed over the possession of the suit land back to him, but the defendants refused to do so, hence the suit was filed by the plaintiff. 3. Defendants opposed the suit of the plaintiff on the ground that they were in possession of the suit land since 1952, i.e. since the time of their predecessors and had become owners of the same by way of adverse possession. It was also their case that earlier a civil suit for injunction, i.e. Civil Suit No. 152/2003 was filed by the plaintiff, which was dismissed in Lok Adalat on 18.10.2003, therefore also, subsequent suit was not maintainable. It was also their case that earlier a civil suit for injunction, i.e. Civil Suit No. 152/2003 was filed by the plaintiff, which was dismissed in Lok Adalat on 18.10.2003, therefore also, subsequent suit was not maintainable. It was also the stand of the defendants that the demarcation, on the basis of which, plaintiff pleaded that defendants were in possession of the suit land was not conducted in accordance with law. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues:- "1.Whether the plaintiff is entitled for vacant possession of suit land on the demarcation report in case No. 108/RNT, as alleged? OPP. 2. Whether the defendants have become owners of suit land by way of adverse possession as alleged? OPD. 3. Whether the plaintiff is estopped by his act and conduct from filing the present suit, as alleged OPD. 4. Relief." 5. On the basis of pleadings and evidence led by the parties in support of their respective cases, the Issues so framed were answered by the learned Trial Court as under:- "Issue No.1 : Yes. Issue No. 2 : No. Issue No. 3 : No. Issue No.4 : The Suit is decreed as per operative part of the judgment." 6. The suit was decreed by the learned Trial Court by holding that it was not in dispute that plaintiff was the owner of the suit land as the said fact stood admitted even by the defendants in their cross examination. Learned Trial Court also held that the factum of the defendants being in possession over the suit land was also not in dispute, however, defendants had failed to establish by way of leading cogent evidence that they had become owners of the suit land by way of adverse possession. On these bases, learned Trial Court held that plaintiff was entitled for the relief of possession. Learned Trial Court also held that the assertion of the plaintiff in the previous suit regarding an attempt of dispossession would not amount to estoppel as the defendants were not made to act to their disadvantage on the said assertion which was a necessary ingredient of estoppel. On these bases, learned Trial Court decreed the suit of the plaintiff for possession. 7. In appeal, the judgment and decree so passed by the learned Trial Court was affirmed. On these bases, learned Trial Court decreed the suit of the plaintiff for possession. 7. In appeal, the judgment and decree so passed by the learned Trial Court was affirmed. Learned Appellate Court while dismissing the appeal filed by the defendants held that at no stage, defendants had proved that their predecessor-in-interest or they had taken over the possession of the suit land after having dispossessed the true owner in a manner that the defendants were in possession of the suit land in denial of the title of the plaintiff. Learned Appellate Court held that possession howsoever long could not be treated as adverse to the true owner unless the party was able to establish the ingredients of adverse possession. Learned Court also held that whereas plaintiff had proved on record that she was forcibly dispossessed of the suit land by the defendants in the year 2002, defendants had failed to prove that they had perfected their title by way of adverse possession. On these bases, learned Appellate Court while dismissing the appeal of the defendants, upheld the judgment and decree passed by the learned Trial Court. 8. Feeling aggrieved, the appellants/defendants have filed this appeal, which was admitted on 19.11.2008, on the following substantial questions of law:- "(i). Whether the Ld. Courts below have failed to appreciate the plea of adverse possession in its right perspective as raised in Preliminary Objection No. 5.? (ii) Whether the Ld. Courts below are justified in accepting the plea of demarcation when the person conducting the demarcation never appeared in the witness box and the demarcation was not in accordance with the rules prescribed for demarcation? (iii) Whether the Ld. First Appellate Court has not misread the evidence when he observed that no person from the locality was produced by the defendant to prove his adverse possession while DW 2 Desh Raj has specifically stated in his cross examination that his land is adjoining to the land in dispute?" 9. I have heard learned Counsel for the parties and gone through the record of the case as well as the judgments and decrees passed by the learned Courts below:- 10. There are concurrent findings of facts returned by both the learned Court below against the present appellants that they had failed to prove on record that they had perfected their title over the suit land by way of adverse possession. 11. There are concurrent findings of facts returned by both the learned Court below against the present appellants that they had failed to prove on record that they had perfected their title over the suit land by way of adverse possession. 11. In case, a party is to succeed on the plea of adverse possession, then it has to establish that its possession over the suit land is open, peaceful and hostile for more than 12 years as against the true owner. In the present case, the suit was filed for possession by the plaintiff in October, 2003. The plea of the plaintiff was that she was dispossessed by the defendants of the suit land on 28.10.2002. While denying the said claim of the plaintiff, defendants took the plea of adverse possession. 12. In order to substantiate that the defendants had become owners of the suit land by way of adverse possession, defendant No. 1 entered the witness box and besides himself, he also examined Sh. Desh Raj as DW2. In his affidavit tendered in evidence, defendant No. 1 Shashi Kant, who was aged 40 years when the affidavit was filed, stated that the suit land was in the open, peaceful and hostile possession of his predecessor-in-interest, since the year 1952. He thereafter stated that after the death of his predecessor-in-interest, the suit land was in his possession. 13. Dw2 Desh Raj in his affidavit deposed that he had seen the suit land, which was earlier in possession of Karam Chand and after his death, the same was in possession of the defendants. It was mentioned in his affidavit that defendants were in possession of the suit land for the last fifty three years. Now, it is not understood as to how a witness, who was 50 years old when he filed the affidavit in evidence, could swear in the Court that possession of the defendants was for the last 53 years, i.e. even qua the period when he was not even born. This clearly demonstrates that statement of this witness is not worthy of reliance. Besides him, no other witness has been examined by the defendants to establish that they had become owners of the suit land by way of adverse possession. This clearly demonstrates that statement of this witness is not worthy of reliance. Besides him, no other witness has been examined by the defendants to establish that they had become owners of the suit land by way of adverse possession. To put it differently, defendants have not examined any witness to demonstrate and prove that the predecessor-in-interest of the defendants were in possession of the suit land since the year 1952 and their possession over the suit land was open, peaceful and hostile as against the true owner. 14. Therefore, there is no infirmity in the findings returned by both the learned Courts below that defendants were not able to prove that their possession over the suit land had matured into ownership by way of adverse possession. Further, it can not be said that learned first Appellate Court has misread the evidence while hoding that no person from the locality was produced by the defendants to prove adverse possession because statement of DW2 Desh Raj, as I have already mentioned above, is not worthy of reliance as when he was of 50 years of age when he entered witness box, he could not have had stated that he had seen the predecessor-in-interest of the defendants to be in possession of the suit land for the last 53 years. As far as the factum of the Officer who conducted the demarcation not entering the witness box is concerned, the same also, in the peculiar circumstances of this case, is not fatal to the case of the plaintiff for the reason that the factum of the suit land being in possession of the defendants is not in dispute. The very fact where they claimed that they had become the owners of the same by way of adverse possession means that they admit their possession over the suit land. Substantial questions of law are answered accordingly. In view of above discussion, as this Court does not finds any merit in the present appeal, the same is dismissed accordingly. Pending miscellaneous applications, if any, also stand disposed of. No order as to costs.