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2023 DIGILAW 255 (HP)

Prem Singh v. Kartar Singh

2023-05-10

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. By way of instant Regular Second Appeal, appellant has assailed the judgment and decree dated 15.12.2020 passed by learned Additional District Judge-1, Kangra at Dharamshala, District Kangra, H.P. in Civil Appeal No. 09-J/XIII/2014 (RBT C A No. 81-J/XIII/20/14, whereby the judgment and decree dated 15.11.2013 passed by learned Civil Judge (Junior Division), Jawali in Counter Claim No. 52/2013/2003 has been set aside and counter claim of respondents No.1 and 2 has been decreed. 2. The parties hereafter shall be referred by the same status as they held before the learned trial Court. 3. Appellant was plaintiff and non-counter claimant in Civil Suit No. 47 of 2003 and Counter Claim No. 52/2013/2003 respectively before the trial Court. Respondents No.1 and 2 along with respondents No.4 and 5 were defendants in Civil Suit No. 47 of 2003. Respondents No.1 and 2 were counterclaimants in Counter Claim No. 52/2013/2003. 4. Brief facts necessary for adjudication of this appeal are that plaintiff/non-counter claimant filed a suit for declaration to the effect that he had become owner of the suit land by way of adverse possession and the sale deed in respect of the suit land executed by defendant No.1 in favour of defendants No.3 and 4 was null and void. Defendants No.1 and 2 also filed a counter claim seeking decree of possession of the suit land against the plaintiff and proforma defendant. 5. Learned trial Court framed the following issues:- 1. Whether the plaintiff has become owner of the suit land by way of adverse possession, as alleged? OPPP 2. Whether the sale deed dated 01.02.1999 executed by defendant No.1 in favour of defendants No.3 & 4 is null and void, as alleged? OPP. 3. Whether defendants No.1 & 2 are entitled for vacant possession of portion of suit land by way of counter claim, as alleged? OPDs 1 & 2. 4. Whether defendants No.3 & 4 are bonafide purchasers for valuable consideration, as alleged? OPDs-3 & 4. 5. Whether the suit of the plaintiff is barred under Order 2, Rule 2 CPC, as alleged? OPD. 6. Whether the suit of the plaintiff is not maintainable in the present form? OPD 7. Whether the Civil Court has no jurisdiction to try the present suit? OPD. 8. Whether the suit of the plaintiff is bad for non joinder of necessary parties? OPD. 9. Relief. 6. OPD. 6. Whether the suit of the plaintiff is not maintainable in the present form? OPD 7. Whether the Civil Court has no jurisdiction to try the present suit? OPD. 8. Whether the suit of the plaintiff is bad for non joinder of necessary parties? OPD. 9. Relief. 6. Except issues No. 4 and 6, all other issues were decided in negative. The suit of the plaintiff as also the counter claim of defendants No.1 and 2 were dismissed. Learned trial Court held that the plaintiff had failed to prove his adverse possession over the suit land. The counter-claim of the defendants No.1 and 2 was also dismissed on the premise that they had failed to prove the necessary ingredients for grant of decree of possession. 7. Plaintiff filed first appeal against the dismissal of suit by learned trial Court and his appeal was dismissed. Regular Second Appeal filed by plaintiff was also dismissed by this Court on 17.05.2017 as RSA No. 141 of 2017. The judgment passed by this Court in RSA No. 141 of 2017 has attained finality. Defendants No.1 and 2 also filed first appeal against dismissal of their counter claim. Appeal was allowed by the first Appellate Court and the decree for possession was passed in favour of defendants No.1 and 2. Plaintiff approached this Court by way of RSA No. 37 of 2017 against the judgment and decree passed by First Appellate Court, whereby the counter claim of defendants No.1 and 2 was decreed. This Court vide judgment dated 16.10.2019 remanded the matter back to First Appellate Court with direction to render specific findings on the plea of adverse possession. After remand, learned First Appellate court has passed the impugned judgment and decree, whereby again the judgment and decree passed by learned trial Court in Counter Claim No. 52/2013/2003 has been set aside and the decree for possession in respect of the suit land has been passed. 8. After hearing learned counsel for both the parties and going through the record, I am of the considered view that no substantial question of law arises and hence the appeal filed by the plaintiff deserves to be dismissed. The findings of facts, unless shown to be perverse or suffering from grave illegality, cannot be interfered with in regular second appeal under Section 100 of the Code of Civil Procedure. 9. The findings of facts, unless shown to be perverse or suffering from grave illegality, cannot be interfered with in regular second appeal under Section 100 of the Code of Civil Procedure. 9. Learned trial Court had decided issue No.1 against the plaintiff. It was held that the plaintiff had not acquired the title over the suit land by way of adverse possession. Findings so recorded by learned trial Court was affirmed in first appeal as also in second appeal by this Court vide judgment and decree dated 17.05.2017 passed in RSA No. 141 of 2017. The judgment passed by this Court in RSA No. 141 of 2017 was not assailed further and thus has attained finality. The finding that the plaintiff had failed to prove acquisition of title over the suit land by way of adverse possession will operate as res judicata between the same parties in all other proceedings in which the same issue arises. 10. Once, the plaintiff was held to have not acquired title over the suit land by way of adverse possession, the natural consequence would be that the plaintiff was not having better title over the suit land than the true owner. That being so, true owners were within their rights to claim possession of the suit land from the plaintiff on the basis of their title. 11. Plaintiff had admitted defendants No.1 and 2 as owners of the suit land. It is trite that adverse possession can be claimed only against true owner. Plaintiff having taken the plea of adverse possession could not have denied the title of defendants No.1 and 2. Further, plaintiff having failed to prove issue No.1 in his favour, was bound to fail in his pursuits to contest the claim put forth by defendants No.1 and 2 by way of counter claim No. 52/2013/2003. 12. Learned First Appellate Court has passed the impugned judgment and decree after detailed analysis and discussion on the plea of adverse possession. The findings returned by learned First Appellate Court are based on the record, which otherwise is the inevitable legal consequence of failure of plaintiff to establish the plea of adverse possession. 13. Thus, the instant appeal deserves dismissal and is accordingly dismissed. All pending applications, if any, also stand disposed of. Decree sheet be prepared accordingly.