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2025 DIGILAW 11 (HP)

Basant Kumar (deceased) through LRs v. Surat Ram

2025-01-02

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Basant Kumar, predecessor-in-interest of the appellants, has filed the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’), against the judgment and decree dated 8.12.2003, passed by the Court of learned District Judge, Bilaspur, District Bilaspur H.P., (hereinafter referred to as the ‘First Appellate Court’), in Civil Appeal No.78 of 1996, titled as Basant Kumar versus Deep Ram & Others. 2. By way of judgment and decree dated 8.12.2003, the appeal, preferred by the Basant Kumar, has been ordered to be dismissed by the learned First Appellate Court. 3. The said appeal has been preferred against the judgment and decree dated 27.6.1996, passed by the Court of learned Sub Judge 1 st Class, Ghumarwin, District Bilaspur, H.P., (hereinafter referred to as the ‘trial Court’), in Civil Suit No.105/1 of 1987, titled as Basant Kumar versus Saloh (deceased) through LRs and Others. 4. Vide judgment and decree dated 27.06.1996, learned trial Court has dismissed the suit, filed by the predecessor-in-interest of the present appellants, Basant Kumar. 5. For the sake of convenience, the parties to the present lis are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court. 6. Brief facts, leading to filing of the present appeal, before this Court, as per record, may be summed up, as under:- 6.1. Plaintiff Basant Kumar has filed the suit for declaration to the effect that he is owner in possession of the land bearing Khasra No.149, having 2/3 share, along with defendants No.1 to 23. According to him, he is also owner in possession of Khasra No. 349/362/1, measuring 0-12 Biswa, which is the part of khasra No.149, to which new khasra No. 394/362 was allotted, as per the jamabandi for the year1980-81 in Ghumarwin Khas. 6.2. In the alternative, it is the further case of the plaintiff that in case, he fails to prove that he is owner in possession vide agreement dated 22.12.1963, then, he is owner in possession of the said khasra number, by virtue of adverse possession, on the basis of defective title and suit for possession of 12 Biswansi of land bearing khasra No.394/362/1, after dismantling the house, which defendants No.1 and 2 constructed on 8.3.1987, forcibly. 6.3. 6.3. In addition to this, the plaintiff has sought the relief of permanent injunction, restraining the defendants permanently from interfering in the suit land. The said relief has been sought on the ground that Defendant No.3 Arjun got in exchange Khasra No.149 min, measuring 2 bighas from Mangatu, predecessor-in-interest of defendants No.6 to 9 and Bhotha and Makoru, who are defendants No.4 and 5, in the present lis. 6.4. It is the further case of the plaintiff that on 22.01.1983, Arjun executed a Sale Deed and sold 5 biswa of land comprised in Khasra No. 149min, situated in Village Ghumarwin Bazar, to the plaintiff. Dimension of land was given, in the agreement, as 28 Hath, in length, on the road side. Khakha Nazri was prepared on the site and shown, in the agreement, possession of 5 biswa was handed over to the plaintiff on the site. 6.5. It is the further case of the plaintiff that thereafter, in the year 1964, plaintiff constructed a shop on it, which had duly been recorded in the revenue record. Thereafter, one Roop Lal, predecessor-in-interest of defendants No.10 to 16 purchased land, on northern side, of the suit land. Plaintiff built a small house on the boundary, which was rented out to Roop Lal. The said small house is in between the house of defendants Roop Lal and Onkar. 6.6. It is the further case of the plaintiff that thereafter, the plaintiff had sold 1/3rd share, out of 5 biswa of land to Santokha, who sold the same to proforma defendants No.35 and 36. He has also constructed a shop by leaving 8 Hath from the road side between the shop built by LRs of Rup Lal and proforma defendants, in this land, comprised in khasra No.394/362/1. 6.7. It is the further case of the plaintiff that the small house, which was allegedly built by the plaintiff on his boundary is behind khasra No. 394/362/1, was given to Rup Lal on rent of Rs.5/- per month. After his death, Santokh, his son is paying rent on regular basis. The fact, that Arjun sold the land to the plaintiff, was known to the defendants, as, the plaintiff had constructed the house in the year 1964. After his death, Santokh, his son is paying rent on regular basis. The fact, that Arjun sold the land to the plaintiff, was known to the defendants, as, the plaintiff had constructed the house in the year 1964. This fact has been pleaded by him to show that in case, he fails to prove the fact of sale, then, he be declared, as, owner, by virtue of adverse possession. 7. On the basis of the above facts, the relief, as claimed, in the plaint has been sought. 8. When put to notice, the suit has been contested and resisted, by the defendants, by filing written statement. 8.1. In the written statement, the defendants have taken the preliminary objections that the suit is not maintainable; the plaintiff is estopped by his act, conduct, omission and commission; the suit is bad for mis-joinder and non-joinder of necessary parties; the suit is time barred; the plaintiff has no locus standi to file the present suit; the suit is bad for better particulars; the plaintiff has no cause of action; and the plaintiff has no right, title and interest in the suit land. 8.2. The defendants have also taken the plea that defendant Arjun has obtained the land from the defendant Mangtu with an assurance that whenever, Mangtu etc., will require the said land, Arjun will return the same to them and Mangtu etc. will hand over the possession of the land to Arjun. So, Arjun has got no right, title and interest in the land, which he has obtained. Likewise, the plaintiff acquired no title from Arjun and the defendants are entitled for the decree of possession of land underneath the house of plaintiff and defendants Mahant Ram and Onkar, which is about 60x32½ feet, after dismantling the structure over the said land. 9. On merits, the suit has been contested on the ground that Arjun obtained the land, along with the possession thereof, on the basis of the agreement, in which, he has agreed that he will return the same, whenever, required by the defendants. They have denied the factum of exchange, as alleged by the plaintiff. Defendants asserted that they are owners of the suit land. Rest all the contents of the plaint have been denied. 10. They have denied the factum of exchange, as alleged by the plaintiff. Defendants asserted that they are owners of the suit land. Rest all the contents of the plaint have been denied. 10. Along with the written statement, the defendants have filed counter claim by pleading that the defendants are owners of the land, underneath the houses of the plaintiff and defendants No.35 and 36, as such, they are entitled to get the decree as prayed for, by them. 11. The stand, as taken, in the written statement, has been contested and controverted by the plaintiff by filing replication, as well as, written statement to the counter claim. The preliminary objections have been denied. Similarly, the stand, as taken in the written statement, has also been denied, by reiterating the stand taken in the plaint. Similarly, the grounds, upon which, the counter claim has been filed, have also been contested/controverted, by pleading that the defendants are not owners of the suit land, as such, they are not entitled for possession by dismantling the house. 12. From the pleadings of the parties, the following issues were framed, by the learned trial Court, vide order dated 20.09.1991:- 1. Whether the plaintiff is owner in possession alongwith defendants Nos.1 to 23 of the suit land as alleged? OPP 2. Whether in the alternative, the plaintiff is entitled for the declaration to be owner in possession vide agreement dated 22-12-1963 and if it is not proved whether he is owner in possession by virtue of adverse possession? OPP. 3. Whether the plaintiff is entitled for the decree of possession of 12 biswansies land comprised in Khasra No. 394/362/1 after dismentallling the house of defendant No. I and 2 constructed on 8.3.1987 forcibly? OPP 4. Whether the plaintiff is entitled for the decree of permanent injunction against the defendants as alleged? OPP. 5. Whether the suit is not maintainable? OPD. 6. Whether the plaintiff is estopped by his act, conduct, commission and omissions? OPD 7. Whether the suit is bad for mis-joinder and non-joinder of necessary pirties? OPD. 8. Whether the suit is time-barred? OPD. 9. Whether the plaintiff has no locus standi to file the present suit? 0PD. 10. Whether the suit is bad for want of better particulars and proper description? OPD. 11. Whether plaintiff has no cause of action? OPD. 12. Whether the suit is bad for mis-joinder and non-joinder of necessary pirties? OPD. 8. Whether the suit is time-barred? OPD. 9. Whether the plaintiff has no locus standi to file the present suit? 0PD. 10. Whether the suit is bad for want of better particulars and proper description? OPD. 11. Whether plaintiff has no cause of action? OPD. 12. Whether the plaintiff has no right, title and interest of the suit land as alleged in Pre.Objection No.8? OPD. 13. Relief. 13. Thereafter, the parties to the lis were directed to adduce evidence. 14. After the closure of the evidence, upon hearing the learned counsel for the parties, the learned trial Court has dismissed the suit of the plaintiff, vide judgment and decree, as referred to above. 15. Against the said judgment and decree, the plaintiff has filed appeal before the learned First Appellate Court. The said appeal has also been dismissed by the learned First Appellate Court, vide judgment and decree dated 8.12.2003. 16. Now, the plaintiff is before this Court, by way of the present Regular Second Appeal. The judgment and decree passed by the learned trial Court, as affirmed by the learned First Appellate Court, has been assailed, on the ground that the learned trial Court has rightly held that the plaintiff is absolute owner of the part of the suit land, however, in view of the fact that he has purchased 5 biswas of land, out of which, he had sold 1/3 share, in favour of Santokha and the said sale was never assailed by the defendants, therefore, in view of 1/3rd share also, the appellant and his successors have to be held as the absolute owners. 17. The findings have further been assailed on the ground that the documents Ex.PW-4/A was accepted in evidence, without any objection by the defendants. Therefore, the provisions of Section 17 of the Registration Act are not applicable, nor, is there any legal bar under the provisions of Transfer of Properties Act. As such, according to the appellant-plaintiff, both the Courts below have acted illegally by declining to rely upon document Ex.PW-4/A. 18. In addition to this, the plaintiff-appellant has also relied upon the revenue record to show that he has been shown, as owner in the revenue record from December 1963 onwards. 19. As such, according to the appellant-plaintiff, both the Courts below have acted illegally by declining to rely upon document Ex.PW-4/A. 18. In addition to this, the plaintiff-appellant has also relied upon the revenue record to show that he has been shown, as owner in the revenue record from December 1963 onwards. 19. The findings have further been assailed on the ground that the defendants within the period of limitation, never raised any objection, with regard to the sale, in favour of appellant, on the basis of writing dated 22.12.1963, Ex.PW-4/A. 20. On the basis of the above grounds of appeal, a prayer has been made to allow the appeal by setting aside the judgment and decree passed by the learned trial Court, as affirmed by the learned First Appellate Court. 21. The appeal has been admitted, on the following substantial question of law, by this Court, vide order dated 20.09.2006:- “1. Whether the two Courts below have committed a serious illegality in not granting the relief of declaration that the appellant-plaintiff is the owner of 5 biswas of land bearing Khasra No.394/362, when it has specifically been held that the appellant is the owner in possession of the suit land? 22. Learned trial Court, while deciding issue No.1, has categorically held that the plaintiff has failed to prove that he has become owner-in-possession of the suit land, along with defendants No.1 to 23, on the basis of agreement dated 22.12.1963. 23. Plaintiff has based his case, on the basis of document Ex.PW-4/A. Ex.PW-4/A is agreement to sell. This document has been exhibited, in the statement of Arjun, who, in his examination-in-chief, has deposed that he has sold five biswa of land to the plaintiff. However, going through the recital of the same, the said document is proved to be agreement to sell and not sale deed. 24. Even otherwise, when, the document has been executed, for transferring the land, value of which, admittedly, is more than Rs.100/-, then, the same is required to be registered, as per the provisions of Section 17 of the Registration Act, 1908, which read, as under:- “ 17. 24. Even otherwise, when, the document has been executed, for transferring the land, value of which, admittedly, is more than Rs.100/-, then, the same is required to be registered, as per the provisions of Section 17 of the Registration Act, 1908, which read, as under:- “ 17. Documents of which registration is compulsory.- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-- (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property: Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. (1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. (2) Nothing in clauses (b) and (c) of sub-section (1) applies to-- (i) any composition deed; or (ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or (iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or (iv) any endorsement upon or transfer of any debenture issued by any such Company; or (v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or (vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or (vii) any grant of immovable property by [Government]; or (viii) any instrument of partition made by a Revenue-Officer; or (ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or (x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or (xa) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or (xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer. Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money. (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.” 25. Merely, the document is exhibited, does not mean that the requirement to prove the same is dispensed with. 26. Statement of a witness is to be considered, as a whole and not in piecemeal, as, in the further cross- examination, PW-4 (Arjun) has admitted that neither, he was owner of the suit land, nor, was he having any right to sell the same. According to him, since, he had obtained the land in question, as such, he was having the right. 27. The learned trial Court, in the present case, has rightly considered all these aspects and decided issue No.1 against the plaintiff. 28. Even otherwise, the plaintiff has taken the mutual destructive pleas, as, on one hand, he has claimed his ownership, by way of document Ex.PW-4/A, on the other hand, he has also taken the plea that he has become owner by way of adverse possession. 29. Neither the plea of adverse possession has been proved, nor, he is entitled to the relief, on the basis of Ex.PW- 4/A, as, inception of his possession can be said to be permissive possession and permissive possession, howsolong it may be, cannot be converted into the adverse possession. 30. Plaintiff himself is not sure about his case, as on one hand, he has claimed his ownership on the basis of Ex.PW-4/A, whereas, on the other hand, he has made attempt to get the relief, on the basis of his adverse possession. 31. Considering the limited scope of this Court, under Section 100 CPC, this Court, is of the view that the findings, so recorded, by both the Courts below, do not fall within the definition of perverse findings, as such, the same do not require any interference by this Court. Hence, substantial question of law, as framed, is decided against the appellants. 32. Hence, substantial question of law, as framed, is decided against the appellants. 32. Consequently, the appeal is dismissed and the judgment and decree passed by the learned trail Court, as, affirmed by learned First Appellate Court is upheld. 33. Pending application(s), if any, shall also stand disposed of. 34. Decree sheet be prepared accordingly. 35. Record be sent back.