Prem Chand (Deceased) Through Legal Representatives v. Manohar Lal Son Of Bhuttu Ram
2022-06-27
JYOTSNA REWAL DUA
body2022
DigiLaw.ai
ORDER : This appeal under Section 100 of Code of Civil Procedure arises out of concurrent judgments & decrees passed by learned Courts below, partly decreeing the suit filed by the appellant for injunction. 2. A suit for permanent prohibitory injunction was instituted by the appellants against the respondents. Appellants pleaded that they were owners in possession of the land comprised in Khata No.147, Khatauni No.220, Khasra Nos.528, 530, 531, 532, 533 and 537, measuring 0- 09-61 hectares situated at Mohal Lahar, Mauza Lambagaon, Tehsil Jaisinghpur, District Kangra. 2(a). Plaintiffs averred therein that the defendants without any right, title and interest had encroached two marlas of the suit land by raising structure thereupon. That they were interfering over the suit land with an intention to encroach and take forcible possession of remaining part of the land. 2(b). Respondents/defendants on merits took up the defence that the suit land was mortgaged by the plaintiffs/their predecessors with one Shri Bhuttu son of Sardha son of Dholak (predecessor-in-interest of defendant No.1) to the extent of ½ share, with Shri Nathu Ram son of Mangatu to the extent of ¼ share and with Shri Dinu and Kishori sons of Mangatu in equal share to the extent of ¼ share. Shri Bhuttu expired and his rights were inherited by defendant No.1 and his brother Shri Amar Nath. On 4.6.1976, plaintiff had moved an application under Section 4 of the H.P. Redemption of Mortgage Act 1971 seeking redemption of the suit land. This application was dismissed on 9.8.1979 on the ground that the period of mortgage had exceeded 30 years and the plaintiff had lost right to redeem the same as this right stood foreclosed. Defendants, therefore, pleaded that they had become owners of the suit land by efflux of time. It was further the case of the defendants that they had been in possession of the suit land to the extent of ½ share since the time of their ancestors. They had raised a residential house and cow shed over the same. The residential house was constructed on the suit land during the life time of Shri Bhuttu. Further addition to the residential house was made with the Government aid under ‘Indira Aavaas Yojna’ in the year 1997. Defendants also pleaded that the plaintiff had moved an application on 3.1.2001 before the Sub Divisional Magistrate Jaisinghpur, praying for demarcation of the suit land.
Further addition to the residential house was made with the Government aid under ‘Indira Aavaas Yojna’ in the year 1997. Defendants also pleaded that the plaintiff had moved an application on 3.1.2001 before the Sub Divisional Magistrate Jaisinghpur, praying for demarcation of the suit land. Defendants denied that they had encroached upon two marlas of the suit land by raising structure thereupon or that they had been interfering over the suit land. Defendants pleaded that plaintiff had become stranger to the suit land and defendant No.1 being successor of Bhuttu and other mortgagees had become owners of the suit land by efflux of time. 3. Parties led evidence in support of their respective contentions. On considering the pleadings, evidence and the contentions raised on behalf of the parties, learned trial Court vide judgment and decree dated 27.8.2018 partly allowed the suit. Learned trial Court held that the mortgage in question was a simple mortgage as provided under Section 58(b) of the Transfer of Property Act. Learned trial Court also returned a finding that there was nothing on record to show that mortgagees had availed any remedy for recovery of mortgage money as per law. The plaintiff was held to be in possession of the suit land except khasra nos. 533 and 537. The suit was, therefore, partly decreed. The defendants were restrained from interfering in the suit land barring Khasra No.533 and 537. The first appeal preferred by the plaintiffs against the judgment and decree dated 27.08.2018 passed by the learned trial Court was dismissed by the learned First Appellate Court on 2.12.2021. Aggrieved against the concurrent findings of both the learned Courts below, plaintiffs/appellants are now taking third chance by way of instant regular second appeal. 4. Learned counsel for the appellants contended that their suit was required to be decreed in entirety. The decree for permanent prohibitory injunction granted to the plaintiffs by the learned Courts below should also have encompassed Khasra No.533 & 537. I have considered the judgments and decrees passed by both the learned Courts below. Findings of fact have been recorded by the learned Courts below that the defendants had raised constructions over 2.2½ marlas of the suit land. Defendants were not in possession of the entire suit land but only part thereof. In this regard, an application moved by the plaintiffs before the Revenue Officer seeking demarcation of the suit land becomes significant.
Findings of fact have been recorded by the learned Courts below that the defendants had raised constructions over 2.2½ marlas of the suit land. Defendants were not in possession of the entire suit land but only part thereof. In this regard, an application moved by the plaintiffs before the Revenue Officer seeking demarcation of the suit land becomes significant. On this application, demarcation was conducted by the Field Kanungo Kali Dass on 28.03.2001. Demarcation report dated 30.03.2001 alongwith the copy of application (Ext. DW3/A) was proved by Kali Das, who stepped into the witness box as DW.3. In the demarcation report, defendant No.1 was found to be in possession of Khasra No.533 & 537 measuring 0-04-19 hectares, whereas on the remaining part of the suit land comprised Khasra Nos.528, 530, 531 and 532 plaintiffs were found to be in possession. In the impugned judgments and decrees both the learned courts below have observed that alongwith the demarcation report, copy of statement of the original plaintiff recorded by the Demarcating Officer had also been annexed wherein the plaintiff had accepted the demarcation conducted by the Revenue officer. The acceptance by the plaintiff of the demarcation conducted by the Revenue Officer on 28.03.2001 imply that he had accepted the demarcation report (Ext. DW3/A). If that is so, then it leads to conclusion that the original plaintiff had admitted that Khasra Nos.533 & 537 were in possession of the defendants. The documentary evidence noticed by the learned Courts below which is not disputed on behalf of the appellants herein establishes that the defendants were in physical possession of two khasras in question (533 & 537) since long. Suit was filed by the original plaintiff on 8.8.2006. The original plaintiff was not in possession of Khasra Nos. 533 and 537 on the date of filing the suit for injunction. It is well settled that a party seeking injunction, has to prove his possession over the suit land from the date of accrual of cause of action. The plaintiff did not meet this requirement. Even otherwise, there are the concurrent findings of facts in this regard returned by both the learned Courts below after properly appreciating the oral and documentary evidence led by the parties. No question of law much less substantial one arises for adjudication of the instant appeal. Hence, the appeal is dismissed. Pending miscellaneous applications, if any, also stand disposed of.