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2019 DIGILAW 1758 (HP)

Parkash Chand Sharma v. Subhash Chand Sharma

2019-11-20

AJAY MOHAN GOEL

body2019
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this appeal, the appellants have prayed for the following reliefs: “It is, therefore, respectfully prayed that this appeal may very kindly be allowed and the impugned judgment and decree dated 03.05.2019, passed by learned District Judge, Chamba Division, Chamba (HP) in Civil Appeal No. 33/18, whereby the judgment and decree dated 31.10.2018, passed by the learned Civil Judge, Dalhousie in Civil Suit No. 96 of 2014, titled as Subhash Chand Sharma Vs. Parkash Chand Sharma & others, has been affirmed/upheld, may kindly be set aside and the suit filed by the respondent/plaintiff may kindly be dismissed throughout with costs, in the interest of justice.” 2. Brief facts necessary for the adjudication of the present appeal are that a suit for possession and permanent prohibitory injunction was filed by the respondent-plaintiff Subhash Chand Sharma (hereinafter referred to as 'the plaintiff’) against the present appellants-defendants (hereinafter referred to as 'the defendants’). Case of the plaintiff before the learned Trial Court was that he was recorded as owner in possession of land and house comprised in Khata/Khatauni No. 730/854 min, Khasra No. 2676/312, measuring 00-07-00 bighas, situated at Mauza Chowari Jarei, Pargna Chowari, Tehsil Bhattiyat, District Chamba, H.P. Plaintiff had purchased the suit land in the year 1974 and constructed a house upon the same. Defendant No. 1 and Brij Kishore were his real brothers. They had no house to live in. On their request, plaintiff allowed defendant No. 1 to use one room, kitchen, bathroom and latrine and one room was given to the younger brother Brij Kishore. Whereas Brij Kishore vacated the house 10 years back, however, despite assurances given by defendant No. 1 to vacate the premises, which were under his occupation, he did not do so. This was despite the fact that defendant No. 1 had procured 00-02-00 bighas land from Himachal Pradesh Government as Nautor for construction of house. It was further the case of the plaintiff that defendants had already constructed their house over the suit land, but despite this, they had failed to vacate the rooms belonging to the plaintiff. The family of the plaintiff increased in number, as both his sons got married and therefore, accommodation was required by the plaintiff which was in possession of the defendants. The family of the plaintiff increased in number, as both his sons got married and therefore, accommodation was required by the plaintiff which was in possession of the defendants. As per the plaintiff, the accommodation in possession of the defendants was allotted as a licencee due to close relation. He had requested the defendants in the month of July, 2014 to vacate the rooms and shift to their own house, but they remained adamant and started creating nuisance by discharge of dirty and filthy water and also putting garbage in front of his rooms. In these circumstances, the plaintiff issued a Legal Notice to the defendants on 25.07.2014, requesting them to vacate the property in their possession, however, rather than complying with the Notice so issued, defendants denied the request made by the plaintiff. In the third week of August, 2014, with an intent to harass the plaintiff, defendants started raising construction over the vacant portion of the suit land. They were again requested by the plaintiff not to raise any construction or change the nature of the suit land, but they were adamant to do so. It was further case of the plaintiff that he had terminated the licence of the defendants and therefore, the possession of the defendants upon the suit land was illegal and defendants were liable to pay Rs.500/- per day for illegal use and occupation of the suit property. 3. In response, defendants contested the suit, inter alia, taking the stand that as in the year 1974, the family of the plaintiff as well as defendants was joint, suit land was purchased from the joint family funds in the name of the plaintiff and thereafter, the house was constructed by the plaintiff as well as defendants from the joint family funds. It was denied by defendant No. 1 that the premises in issue were allegedly permitted to be occupied by him as licencee by the plaintiff. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues: “ (1) Whether plaintiff is entitled for decree of possession of two rooms, kitchen, bathroom and latrine existing over the suit land, as prayed for? OPP (2) Whether plaintiff is entitled for decree of permanent prohibitory injunction, as prayed? OPP (3) Whether plaintiff has got cause of action and locus standi to file the present suit, as alleged? OPP (2) Whether plaintiff is entitled for decree of permanent prohibitory injunction, as prayed? OPP (3) Whether plaintiff has got cause of action and locus standi to file the present suit, as alleged? OPP (4) Whether the suit is not maintainable in the present form, as alleged? OPD (5) Whether plaintiff has not approached the Court with clean hands and concealed material facts from the Court, as alleged? OPD (6) Relief. 5. On the basis of evidence which was led by the parties before the learned Trial Court to substantiate their respective contentions, learned Trial Court decided the issues so framed as under: “Issue No. 1: Yes. Issue No. 2: Yes. Issue No. 3: Yes. Issue No. 4: No. Issue No. 5: No. Relief: The suit of the plaintiff is decreed as per the operative part of this judgment.” 6. The suit was dismissed by the learned Trial Court by holding that revenue documents on record (copy of Jamabandi Ex.-PA) clearly demonstrated that the suit land was purchased by the plaintiff. Defendants had failed to rebut the presumption attached to the same. Defendants had not placed anything on record to demonstrate that the house was constructed over the suit land out of joint family funds or there was any contribution by the defendants even towards purchase of the suit land. Learned Trial Court further held that it could be safely inferred on the basis of evidence on record that the suit land was indeed purchased by the plaintiff out of his own funds and that defendants had nothing to do with it. Learned Trial Court also held that there was merit in the version of the plaintiff that defendants were allowed to reside in the relevant portion of the disputed house as licencees, which licence subsequently stood revoked by service of Notice Ex.-PB upon defendant No. 1. On these basis, learned Trial Court allowed the suit fled by the plaintiff in the following terms: “22. In view of my findings on the aforesaid issues, the suit of the plaintiff is decreed in the interest of justice. As a consequence, the defendants are hereby directed to hand over the possession of two rooms, kitchen, bathroom and toilet shown in black outlining in the site plan Ex.PW2/A to the plaintiff within two months from today. In view of my findings on the aforesaid issues, the suit of the plaintiff is decreed in the interest of justice. As a consequence, the defendants are hereby directed to hand over the possession of two rooms, kitchen, bathroom and toilet shown in black outlining in the site plan Ex.PW2/A to the plaintiff within two months from today. Besides this, the defendants are restrained from changing he nature and raising any sort of construction over the vacant portion of the suit land. Parties to bear their own costs. Decree sheet be drawn accordingly. File, after due completion, be consigned to the record room.” 7. In appeal, the findings so returned by the learned Trial Court stand affirmed. Learned Appellate Court while dismissing the appeal filed by the defendants held that evidence on record as also the judgment passed by the learned Trial Court led to the inescapable conclusion that the Trial Court had rightly appreciated the facts on record, including the evidence in its right perspective. Learned Appellate Court also held that defendants had failed to substantiate their contention that funds to purchase the land were provided by their father and land stood purchased in the name of the plaintiff rather than in the joint name of the parties. It held that though defendants argued that construction was raised out of joint funds in the name of joint family, however, there was no proof placed on record to substantiate the said fact. On these basis, learned Appellate Court upheld the findings returned by the learned Trial Court. 8. Feeling aggrieved, the defendants/appellants have filed the present appeal. 9. Mr. R.L. Chaudhary, learned counsel for the appellants has argued that the judgments and decrees passed by the learned Courts below were not sustainable in the eyes of law, as the findings returned by the learned Courts below that the suit land was purchased by the plaintiff and construction upon the same was also carried out by him were perverse findings. He further argued that the judgments and decrees passed by the learned Trial Court were otherwise also not sustainable in law, as learned Courts below erred in not appreciating that the suit was barred by limitation, as the same was filed 40 years after the property was handed over to the defendants. No other point was urged. 10. He further argued that the judgments and decrees passed by the learned Trial Court were otherwise also not sustainable in law, as learned Courts below erred in not appreciating that the suit was barred by limitation, as the same was filed 40 years after the property was handed over to the defendants. No other point was urged. 10. On the other hand, learned counsel for the respondent has submitted that there was no infirmity with the judgments and decrees passed by the learned Courts below, as the findings returned in the same were duly borne out from the record of the case. He further argued that as far as this appeal is concerned, the same merited dismissal at this stage itself, because no question of law was involved in the same, leave aside any substantial question of law, as pure questions of fact stood decided by the learned Trial Court, as upheld by the learned Appellate Court, based upon the correct appreciation of the evidence on record. 11. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by the learned Courts below. 12. There are concurrent findings returned by the learned Courts below to the effect that the suit land was owned by the plaintiff as having been purchased by him and the house stood constructed upon the same by the plaintiff out of his own funds and there was no contribution towards construction of the house by the defendants as alleged. While arriving at the said conclusion, learned Courts below in detail have dealt with the entire evidence on record. 13. During the course of arguments, it could not be disputed that as per the evidence on record, the plaintiff indeed was owner of the suit land. Learned counsel for the appellants could not substantiate his contention that the suit land was purchased by the father of the plaintiff and defendants out of joint family funds or that the house constructed upon the same was also constructed from the joint funds of the family. Except bald assertions made during the course of arguments, the attention of the Court was not drawn to any document from which the same could be inferred. Except bald assertions made during the course of arguments, the attention of the Court was not drawn to any document from which the same could be inferred. In fact, during the course of arguments, this Court was informed that at the relevant time, plaintiff was serving in the Indian Armed Forces and was thus having valid source of income. This fact was not disputed by the learned counsel for the appellants. I reiterate that the learned counsel for the appellants could not draw the attention of this Court to anything on record from which it could be inferred that either the land subject matter of the suit was purchased by the father of the plaintiff and defendants and/or the house was constructed out of the joint funds. That being the situation, no infirmity can be attributed to the findings returned by the learned Court below which have concurrently held that the suit land was purchased by the plaintiff, he was owner of the same and the house stood constructed upon the same by him out of his own funds. Similarly, as there is nothing on record to substantiate that the defendants were having any right over the suit land or the house constructed upon the same, the findings returned by the learned Courts below that their status upon the same was that of a licencee, which stood revoked by way of issuance of a Notice, which is on record as Ex.-PB, are correct findings and the same cannot be said to be perverse, as these findings are clearly borne out from the record. 14. As far as the contention of the learned counsel for the appellants that the suit was barred by limitation is concerned, learned counsel for the respondent drew the attention of the Court to the written statement so filed to the plaint by the defendants, which demonstrates that no such plea was raised in the written statement. 15. Be that as it may, even otherwise, as it was the case of the plaintiff that the cause of action accrued in his favour when even after the licence stood revoked, the defendants to create nuisance, started raising construction over the suit land in the year, 2014, it cannot be said that the suit was barred by limitation. 15. Be that as it may, even otherwise, as it was the case of the plaintiff that the cause of action accrued in his favour when even after the licence stood revoked, the defendants to create nuisance, started raising construction over the suit land in the year, 2014, it cannot be said that the suit was barred by limitation. Legal Notice revoking licence is dated 25.07.2014 and allegation with regard to raising of construction over the vacant portion of the suit land pertains to 3rd week of 2014 and the suit stood filed on 27.08.2014. Therefore, it cannot be said that the suit was barred by limitation, as it was within limitation as from the date of cause of action, as it stood mentioned in the plaint. 16. In view of the findings returned hereinabove, as this Court finds that there is no substantial question of law involved in the appeal, the same is dismissed, so also pending miscellaneous applications, if any. No order as to costs.