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2025 DIGILAW 1077 (HP)

Jagdish Chand v. Dina Nath

2025-05-20

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. 1. The appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 30.09.2021 passed by the Learned Additional District Judge, Ghumarwin, District Bilaspur, H.P. in Civil Appeal No. 18-13 of 2014 affirming the judgment and decree dated 04.12.2013 passed by the Learned Civil Judge (Junior Division), Court No.3, Ghumarwin, District Bilaspur, H.P.in Civil Suit No.476/1 of 2005. 2. The present second appeal arises out of the judgment and decree passed by the learned Appellate Court, which dismissed the first appeal filed by the appellants (defendants No. 2 to 4) against the judgment and decree of the learned trial court. The plaintiff/respondent No. 1 had filed a suit seeking adecree for declaration to the effect that he is the owner in possession of the suit land measuring 0-18 bighas comprised in khasra No. 266 (old khasra No. 1051/2), khewat No. 6 min, khatoni No. 8, situated in village Ladhyani, Pargna Ajmerpur, Tehsil Ghumarwin, District Bilaspur, H.P., by virtue of an agreement dated 8.6.1964 executed by Sh. Ram Ditta, son of Jai Mal, predecessor-in-interest of defendants No. 5 to 8. It was further pleaded that the revenue entries in the column of ownership and possession contrary to the agreement are illegal, wrong, null, and void and not binding upon the rights of the plaintiff. In the alternative, the plaintiff claimed ownership by way of adverse possession since 8.6.1964, the date of execution of the agreement, in case he failed to prove the agreement. Additionally, a decree for permanent injunction was sought to restrain the defendants from interfering with the plaintiff’s possession over the suit land. 3. The plaintiff averred that he became the owner in possession of the suit land by virtue of the agreement to sell dated 8.6.1964, executed by Ram Ditta for a total consideration of Rs. 8,450/-, out of which Rs. 7,400/- was paid on the date of execution and the remaining Rs. 750/- was paid later. In consideration of the payment, the seller handed over possession of the suit land to the plaintiff in the presence of witnesses. Since then, the plaintiff has been in continuous, peaceful, open, and hostile possession without any interruption and in the knowledge of the general public as well as defendants No. 5 to 8. 750/- was paid later. In consideration of the payment, the seller handed over possession of the suit land to the plaintiff in the presence of witnesses. Since then, the plaintiff has been in continuous, peaceful, open, and hostile possession without any interruption and in the knowledge of the general public as well as defendants No. 5 to 8. The revenue entries contrary to his possession were alleged to be wrong, illegal, and void. It was further pleaded that in case the agreement was not proved, the plaintiff had perfected his title by way of adverse possession since 8.6.1964. The cause of action was stated to have arisen on 13.4.2005, when the defendants allegedly threatened to dispossess the plaintiff from the suit land. 4. The suit was contested by defendants No. 5 and 6 by filing a written statement while defendants No. 2 and 4 failed to do so within the stipulated time period,. The plaintiff had moved an application under Order 8 Rule 1 of the CPC for striking off the defence of the Defendants for not filing the written statement within the prescribed period qua which the Defendants No.2 and 4 had filed a reply. Notably, para 3 of their reply, duly signed and supported by the affidavit of appellant No. 1 (attested by Sh. L.R. Nadda, Notary Public), explicitly stated “The answering respondents are the residents of District Hamirpur, H.P. since the year 1989; they have never remained in possession of the suit land. The revenue entries figured in their names are absolutely wrong, illegal, null and void and contrary to the spot.” 5. Defendants No. 2 to 4 also appeared before the court. However, defendants No. 1, 3, 5, 6, and 7 were later proceeded ex-parte. Before the trial Court evidence was only led by respondent No.1/plaintiff. The evidence so adduced was not cross-examined by the defendant/appellant despite opportunity having been afforded. 6. Aggrieved by the judgment of the trial court, the appellants filed a first appeal, contending that the judgment was illegal, wrong, and without jurisdiction. They also raised the issue that one Sh. Kamal Dev had filed an application to be impleaded as a party, which was allowed, but the plaintiff challenged the impleadment in revision before the Hon’ble High Court of Himachal Pradesh. The High Court directed that the judgment in the present case would not operate against Kamal Dev. They also raised the issue that one Sh. Kamal Dev had filed an application to be impleaded as a party, which was allowed, but the plaintiff challenged the impleadment in revision before the Hon’ble High Court of Himachal Pradesh. The High Court directed that the judgment in the present case would not operate against Kamal Dev. The appellants argued that since the impugned judgment was inoperative, it deserved to be set aside. However, the Appellate Court dismissed the appeal, leading to the filing of the present second appeal. 7. Perused the impugned judgement and heard counsel for the Parties. 8. In the present case, the plaintiff’s the evidence remains entirely unrebutted on record. The defendants No. 2 and 4 were barred from filing a written statement due to non-compliance with the stipulated timeline, while the remaining defendants were proceeded against ex parte. Consequently, the trial court rightly presumed that the defendants had no defense against the plaintiff’s claim. This presumption was further reinforced by the defendants’ failure to cross-examine the plaintiff’s witnesses despite being granted adequate opportunities. 9. The respondent No. 1 has also raised a preliminary objection regarding the appellants’ locus standi to maintain the appeal. Relying on Banarsi vs. Ram Phal, (2003) 9 SCC 606 , it was contended that only a person aggrieved or prejudicially affected by a decree is entitled to file an appeal. Para 8 of the judgment clarifies. “[8] Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree, he is not entitled to file an appeal...” 10. Additionally, in Baldev Singh v. Surinder Mohan Sharma, (2002) 4 RCR (Civil), it was held that a challenge to a decree on grounds of fraud can only be raised by a person with a direct interest in the subject matter, not by a mere interloper. 11. In essence, the appellants, having unequivocally disclaimed any interest in the suit property through their judicial admissions, cannot now assert themselves as aggrieved parties entitled to appeal. 11. In essence, the appellants, having unequivocally disclaimed any interest in the suit property through their judicial admissions, cannot now assert themselves as aggrieved parties entitled to appeal. While this technical objection alone could have sufficed to dismiss the appeal, the Court has independently scrutinized the merits of the case. The concurrent findings of fact returned by both the Courts below qua respondent No.1/plaintiff having become owner in possession of the suit land by adverse possession calls for no interference. 12. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial question of law for consideration of the Court, therefore, the present appeal is dismissed being devoid of merit. Pending miscellaneous applications, if any, also stand disposed of.