Himachal Pradesh High Court
Mohan Singh And Others vs Jagdish Chand (Deceased) Through Lr'S ... on 29 August, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
RSA No. 77 of 2005 with
RSA No. 406 of 2011
.
Reserved on: August 1, 2017
Date of decision: August 29, 2017
1. RSA No. 77 of 2005
Mohan Singh and others ...Appellants
Versus
Jagdish Chand (deceased) through LR's Smt. Saloti Devi
and others ...Respondents
2. RSA No. 406 of 2011
Joginder Singh and others ...Appellants
Versus
Mohan Singh and others ...Respondents
Coram
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1 yes.
For the Appellants: Mr. G.D. Verma, Senior Advocate with
Mr. B.C. Verma, Advocate, for the
appellants in RSA No. 77 of 2005 and
for respondents No. 1 to 10 in RSA No.
406 of 2011.
For the Respondents: Mr. Ravinder Thakur, Advocate for the
appellants in RSA No. 406 of 2011 and
for respondents No. 2 to 4 in RSA No.
77 of 2005.
None for other respondents in RSA No.
77 of 2005.
Respondent No. 7 (b) in RSA No. 77 of
2005, ex parte.
1
Whether the reporters of Local Papers may be allowed to see the judgement? .
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2
Sandeep Sharma,J.
.
Since dispute involved in these appeals is qua same land and between same parties, appeal were tagged together for hearing and are being disposed of vide this common judgment.
However, for the sake of clarity, facts of both the appeals are being discussed separately.
RSA No. 77 of 20052. Appellants in this case, filed a suit under Section 34 of the Specific Relief Act, 1963 and Section 9 CPC, for decree of declaration to the effect that plaintiff No.1-Mohan Singh had become owner of the land comprised in Khewat No. 39, Khatauni No. 78 Khasra Nos. 27(8-10 Bigha) and plaintiffs No.2 to 13 had become owners of land comprised in Khewat No. 39, Khatauni No. 77, Khasra Nos. 33 (2-13 Bigha), No. 26 (5-5 Bigha), No. 28 (4-3 Bigha) situated in Village Uttamwala, Baraban, Tehsil Nahan, District Sirmaur, Himachal Pradesh as per Jamabandi for the year 1999-2000 by way of adverse possession and respondents-defendants have no right, title or interest over the suit land. Suit was registered as Civil Suit No. 55/1 of 2002. It was averred in the plaint that the predecessor-
in-interest of the plaintiff as well as defendants namely Netar Singh, Jagat Singh, Jiwan Singh and Pratap Singh were cosharers of land situate at Village Uttamwala Baraban, Tehsil ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 3 Nahan, District Sirmaur, HP as per Jamabandi for the year 1999-2000. Plaintiffs further claimed that plaintiff No.1 was .
sole owner in possession of Khasra No. 27 measuring 8-10 Bigha, which was given to him by his father Shri Netar singh and was recorded in the revenue records and no co-owner- had any right, title or interest over the same. It was further averred in the plaint that an application for partition, i.e. Jiwan Singh versus Jagat Singh, being Case No. 19/9 instituted on 9.7.1974 and decided on 9.8.1977 was filed. Instrument of partition was prepared on 28.7.1979. Netar Singh, predecessor-in-interest of plaintiff No.1 was allotted land in Khasra Nos. 26/2, 27/9, 28/2, 33/4, Jagat Singh was allotted land in Khasra Nos. 27/3, 33/ and 28/1. Similarly, Jiwan Singh was allotted land in Khasra Nos. 27/2, 33/2 and Pratap Singh was allotted land in Khasra Nos. 26/1, 271 and 33 /3. Plaintiffs are successors-in-
interest of Netar Singh and defendants are successor-in-interest of Jagat Singh, Jiwan Singh and Pratap Singh. Plaintiffs No.2 to 13 further claimed that they are in continuous possession of Khasra Nos. 33, 26 and 28, even though this land had been allotted to the defendants, but they did not get possession of this land, which was in their possession since the time, instrument of partition was framed. It was further claimed that plaintiff No.1-Mohan Singh had become owner of land ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 4 comprised in Khasra No. 27, by way of adverse possession.
Plaintiffs further claimed that suit land is in their possession .
since 9.8.1972, when instrument of partition was framed.
Plaintiff further claimed that he has become owner-in-
possession qua the entire area of suit land, by way of adverse possession, holding the same adversely to the defendants, even from the date of physical partition as described above. Plaintiffs further claimed that they have become owners of land in their possession, which was allotted to the defendants, as such, all the rights, title and interest of theirs are extinguished and entries recorded in revenue record, showing cosharers in the column of ownership are against facts and not valid and legal.
3. Defendants by way of a joint written statement, disputed aforesaid claim of plaintiffs on the ground of maintainability, cause of action, non-joinder of parties, as well as valuation. Defendants specifically denied that the plaintiffs have become owners by way of adverse possession qua the suit land. Defendants admitted that one of the cosharers i.e. Jiwan Singh had filed a partition application for the partition of the suit land including Khasra No. 27. Defendants, further stated that partition application was contested in different revenue courts, but, later on, partition was not acted upon due to mutual consent and parties to the suit are in possession of ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 5 land, of each other, in different villages and even in the same village, because of mutual understanding and consent.
.
By way of replication, plaintiffs reiterated and reasserted the claim as set up in the plaint and denied the claim of the defendants.
4. Learned trial Court framed following issues for determination on 25.3.2003:
"(1) Whether the plaintiff No. 1 Mohan Singh has become the owner of suit land comprised under khasra No. 27 measuring 8-10 bighas by way of adverse possession, as prayed?
(2) Whether the plaintiffs No. 2 to 13 have become the owners of land comprised under Khasra No. 33, measuring 2-13 bighas measuring 4-3 bighas by way of adverse possession, as alleged?
(3) Whether the revenue entries showing ownership of defendants qua the suit land are illegl, and not binding on the right of plaintiffs, as alleged?
(4) Whether the suit in the present form is not maintainable?
(5) Whether no enforceable cause of action accrued to the plaintiffs to file the present suit?
(6) Whether the suit is bad for want of proper court fees?
(7) Whether the suit is bad for non-joinder/mis-joinder of necessary parties?
(8) Relief."
5. Subsequently, learned trial Court, on the basis of evidence adduced on record by the respective parties, dismissed the suit for declaration having been filed by the plaintiffs, vide judgment and decree dated 113.2.2004. Plaintiffs being aggrieved and dissatisfied with aforesaid judgment and decree ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 6 passed by trial Court, preferred an appeal before the District Judge, under Section 96 CPC, which came to be registered as .
civil appeal No. 22-CA/13 of 2004. However, fact remains that aforesaid appeal was also dismissed, as a result of which, judgment and decree dated 11.3.2004 passed by Civil Judge (Senior Division), Sirmaur District at Nahan, came to be upheld.
In the aforesaid background, appellants approached this Court by way of instant proceedings, praying therein for decreeing the suit after setting aside impugned judgments and decrees.
Instant appeal was admitted on 9.3.2005, on the following substantial question of law:
"Whether respondents having admitted that land in suit was ordered to be partitioned by revenue authorities on 28.7.1979 and as per their own admission, order for partition of land having not been executed, therefore, right title and interest of the Respondents over the suit land came to an end they being debarred to execute the same."RSA No. 406 of 2011
6. Appellants in this case namely Joginder Singh and others filed a suit for possession of land comprised in Khasra No. 26/1, 27/1 and 33/3, measuring 0-6 Bigha, 1-12 Bigha and 0-9 Bigha, respectively Kita 3 situate in Mouza Uattamwala, Badaban, Tehsil Nahan, District Sirmaur, HP. As per averments made in the plaint, plaintiffs, defendants and ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 7 proforma defendants were cosharers /joint owners of land bearing Khewat No. 39/36 Khatauni No. 77 to 80, comprised in .
Khasra Nos. 25, 26, 27, 28 and 33 measuring 1-6 Bigha, 5-5 Bigha, 8-10 Bigha, 4-3 Bigha and 2-13 Bigha respectively, total measuring 21-17 Bigha situated in Mauja Uttamwala, Badaban, Tehsil Nahan, District Sirmaur, HP, as per Jamabandi for the years 1999-2000. Plaintiffs further claimed that aforesaid land was got partitioned amongst the then cosharers through competent court i.e. Assistant Collector 1st Grade, Nahan on an application bearing No. 19/9 of 1974, titled Jiwan Singh etc. vs. Jagat Singh etc., dated 9.7.1974, which was finally decided on 9.8.1977 and instrument of partition was accordingly prepared on 28.7.1979 and in the said partition, plaintiffs were allotted Khasra No. 25 measuring 1-6 Bigha, Khasra No. 26/1 measuring 0-6 Bigha, Khasra No. 27/1 measuring 1-14 Bigha and Khasra No.33/3 measuring 0-9 Bigha, Kita 4, total measuring 3-13 Bigha, situated in Mauza Uttamwala, Badaban Tehsil Nahan, District Sirmaur, Himachal Pradesh. It is further averred that the proforma defendants were allotted Khasra Nos.
27/3, 33/1, 28/1, 27/2 and 33/2 measuring 7.6 Bigha. As per plaint, plaintiffs and proforma defendants No. 12 to 17 except plaintiff No. 3 namely Shri Bachan Singh are not presently residing in Village Uttamwala, Badaban, Tehsil Nahan, District ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 8 Sirmaur, Himachal Pradesh, where suit land is situated and suit land is mostly in the physical possession of defendants .
No.1 to 6. After the partition, possession of land allotted to the plaintiffs and proforma defendants could not be taken by them because initially defendant No.1-Mohan Singh, contested and disputed the matter in different revenue courts upto Financial Commissioner till November/December, 1991, but thereafter the matter remained pending due to mutual consent/agreement of the parties. Plaintiffs further averred that even after 1991, possession of suit land and land allotted to proforma defendants remained with the defendants in terms of mutual understanding and consent arrived inter se parties because all the contesting defendants had agreed to hand over possession of the land of plaintiffs and proforma defendants. Plaintiffs further alleged that defendants, in breach of trust reposed upon them by the plaintiffs, wanted to grab suit land as well as land allotted to the proforma defendants and as such he filed civil suit No. 55/1 of 2002 titled as Mohan Singh and others versus Jagdish Chand and others in the Court of learned Civil Judge (Senior Division), Sirmaur at Nahan, for decree of declaration that defendant No.1 Mohan Singh had become owner of land comprised in Khasra No. 27 measuring 8-10 Bigha by way of adverse possession and defendants No.2 to 11 had become ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 9 owners of land comprised in Khasra Nos, 33, 26 and 28, as such, defendants had no right, title or interest in the said same.
.
Defendants in that suit contested the claim of plaintiffs. Suit came to be dismissed on 11.3.2004. Defendants being aggrieved with judgment and decree dated 11.3.2004, preferred an appeal bearing No. 22-CA/13 of 2004 dated 21.4.2004, titled as Mohan Singh and others versus Jagdish Chand and others before District Judge, Sirmaur at Nahan, however, said appeal was dismissed on 2.12.2004 by learned District Judge, as a result of which judgment and decree dated 11.3.2004 came to be upheld.
7. Since defendants failed to deliver the possession of suit land and land of proforma defendants after passing of aforesaid judgments and decrees by civil Courts in the case, referred to above, plaintiffs filed present suit praying therein for decree of possession of suit land denoted by Khasra Nos. 26/1 (0-6 Bigha), No. 27/1 (1-12 Bigha), 33/3 (0-9 Bigha) and No. 25 (1-5 Bigha) situated in Mauja Uttamwala Badaban, Tehsil Nahan, District Sirmaur, Himachal Pradesh. Learned trial Court, vide judgment and decree dated 15.12.2009, decreed the suit having been fled by the plaintiffs and held them entitled to possession of suit land comprising of Khasra No. 25(1-6 Bigha), No. 26/1 (0-6 Bigha), No. 27/1 (1-12 Bigha) and No. 33/3 (0-9 Bigha), in total 3-13 Bigha, situate in Mauza Uttamwala ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 10 Badaban, Tehsil Nahan, District Sirmaur, Himachal Pradesh, as depicted in Naksha 'J' attached to instrument of partition (Ext.
.
PW1/E) and also in order dated 9.8.1977 (Ext. PW1/D.
8. Defendants being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, preferred an appeal before the learned District Judge, Sirmaur at Nahan, which came to be registered as Civil Appeal No. 17-CA/13 of 2010. Learned first appellate Court, accepted the appeal having been preferred by the defendants, as a result of which, judgment and decree passed by learned trial Court, as mentioned above, came to be set aside.
9. In the aforesaid background, appellants-plaintiffs approached this Court by way of instant proceedings, praying therein for restoration of judgment and decree passed by learned trial Court, after setting aside judgment of reversal passed by the learned District Judge, Sirmaur at Nahan.
10. The instant regular second appeal was admitted on 20.9.2011, on the following substantial questions of law:
"1. Whether in the absence of specific objection in the pleadings regarding non-maintainability of suit in view of Section 10 CPC and non-framing of specific issue to this effect in the suit , the findings returned by the ld. First appellate court are sustainable and legal?
2. Whether the suit of the appellants deserves to be kept alive till the outcome of RSA No. 77/2005?"::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 11
RSA No. 77 of 2005 and RSA No. 406 of 2011
11. At the cost of repetition, it may be again noticed .
that since dispute involved in the present appeal is qua same land and between same parties, arguments having been made by the learned counsel for the parties, were heard in both the appeals simultaneously.
12. Keeping in view specific substantial question of law No. 2, framed in RSA No. 406/2011 i.e., "Whether the suit of the appellants deserves to be kept alive till the outcome of RSA No. 77/2005?", this Court deems it fit to deal with the substantial question of law, framed in regular second appeal No. 77 of 2005, at the first instance.
13. While hearing submissions having been made by the learned counsel for the parties, this Court had an occasion to peruse judgment passed by the learned first appellate Court assailed in RSA No. 77 of 2005, perusal whereof certainly does not persuade this Court to agree with the contentions having been made by Mr. G.D. Verma, learned senior Advocate, that both the Courts below, while dismissing suit of the plaintiffs, misread, misconstrued and misinterpreted evidence adduced on record by the plaintiffs in support of his claim, rather, this Court, after having carefully perused the same, sees substantial force in the arguments having been made by Mr. Ravinder ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 12 Thakur, learned counsel representing appellants in RSA No. 406 of 2011, ...that suit having been filed by the plaintiffs for .
declaration is not maintainable in view of specific plea of adverse possession having been taken by the plaintiffs.
Appellants-plaintiffs filed Civil Suit No. 55/1 of 2002 under Section 34 of Specific Relief Act and Section 9 CPC, seeking therein declaration that plaintiff No.1-Mohan Singh has become owners of suit land by way of adverse possession. At this stage, this Court deems it necessary to take note of head note of plaint as well as relief clause of the plaint filed by the plaintiff in Civil Suit No. 55/1 of 2002:
"Civil Suit praying for granting a decree of declaration that the plaintiff No. 1 Mohan Singh has become owner of the land comprised in Khewat No. 39, Khatauni No. 78, Khasra Nos. 27 measuring 8-10 Bighas, situated in vill. Uttamwala Baraban, Teh. Nahan, Disttt. Sirmaur, HP per Jamabandi 1999-2000by adverse possession and the plaintiffs No.2 to 13 havebecome owners of land comprised in khewat No.39 khatauni 77,khasra No.33 measuring 2-13 bighas and khasra Nos.26 measuring 5.5 bighas and 28 measuring 4.3 bighas, situated in village Uttamwala Baraban, Teh. Nahan,Sirmaur,HP., and the defendants have no right, title or interest in the same in any manner whatsoever, under section 34 of Specific Relief Act,1963 and section 9 of the C.P.C.
Therefore, it is humbly prayed that a decree of declaration that the plaintiff No. 1 Mohan Singh has become the owner of the land comprised in khewat No.39, Khatauni No. 78, Khasra No. 27, measuring 8-10 bighas; situated at vill. Uttamwala Baraban, Teh. Nahan, Distt. Sirmaur, HP., per Jamabandi for the year 1999-2000 by adverse ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 13 possession and plaintiffs No. 2 to 13 have become owners of land comprised in khewat No.39, khatauni No. 77 khasra No.33, measuring 2-13 bighas and khasra No. 26, measuring 5.5 bighas and 28 measuring 4.3 bighas .
situated in village Uttamwala Baraban, Tehsil Nahan, Distt. Sirmaur, HP., and the defendants have no right, title or interest in the same in any manner whatsoever and the revenue entries to the extent of interest of defendants shown in ownership column are illegal and not binding on the rights of the plaintiffs and or any other relief which this ld.court deems fit, may kindly be passed in favour of the plaintiffs and against the defendants with costs of the suit, in the interest of justice."
14. Perusal of plaint clearly suggests that suit for declaration having been filed by plaintiffs was purely based upon title allegedly acquired by the plaintiffs qua suit land by way of adverse possession. Plaintiffs specifically admitted factum with regard to order dated 9.8.1977 passed by learned Assistant Collector 1st Grade in partition proceedings instituted on 9.7.1974, whereafter instrument of partition was prepared on 28.7.1979. It is also admitted case of the plaintiffs that predecessor-in-interest of plaintiff Nos. 1 to 13 was allotted land comprised of Khasra No. 26/2, 27/9, 28/2, 33/4, whereas, Jagat Singh, Jiwan Singh and Pratap Singh i.e. predecessor-in-
interest of the defendants, were allotted Khasra Nos. 27/3, 33/1, 28/1, Khasra Nos. 27/2 and 33/2, and, Khasra Nos. 25, 26/1, 27/1, 33/3, respectively, total measuring 3-13 Bigha.
Plaintiffs, while claiming themselves to be in continuous possession of Khasra Nos. 33, 26 and 28, specifically admitted ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 14 that this land was allotted to the defendants, who, failed to get the delivery of possession of land, after preparation of .
instrument of partition on 28.7.1979 and as such, plaintiff No. 1 Mohan Singh, became owner of land comprised in Khasra No. 27, by way of adverse possession. No plea of limitation was ever raised by the plaintiffs while refuting claim of the defendants and as such, at this stage, Mr. G.D. Verma, learned senior Advocate, can not be allowed to state that since defendants failed to take possession of their share pursuant to instrument of partition prepared on 28.7.1979 within a period of three years, plea of adverse possession having been taken by the plaintiffs could not be rejected by the learned Court below.
15. Undoubtedly, there is no document available on record suggestive of the fact that steps, if any, were taken by the defendants for procuring possession of their share of land, pursuant to instrument of partition prepared on 28.7.1979, but there is overwhelming evidence adduced on record by the defendants suggestive of the fact that it was agreed mutually between the parties that they shall remain in possession of each others land, in other villages and even in the same village, till the time, they are asked to give possession qua specific portion of land in terms of partition deed. Mohan Singh, while ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 15 appearing as PW-1, specifically admitted in his cross-
examination that after partition, parties did not take possession .
as per partition proceedings and remained in possession of respective shares by their mutual consent. DW-1 Joginder Singh also stated that suit land is in possession of plaintiffs with their consent. He specifically denied that he applied to the Courts of Tehsildar and SDM for taking warrant of possession of suit land. It has also come in the statement of PW-1 Mohan Singh, that in the year 1992-93, he had obtained stay from the court, restraining the defendants from taking possession of suit land, in terms of partition deed. On the other hand, DW-1 specifically stated that dispute regarding partition continued till 1991 since plaintiffs had been filing appeals before higher revenue courts against the order of partition passed by Assistant Collector.
16. True it is, that there is no documentary evidence placed on record by the defendant to prove factum of filing appeal, if any, by the plaintiffs in the revenue courts, laying therein challenge to the instrument of partition as prepared on 28.7.1979, but PW-1 Mohan Singh himself admitted in his cross-examination that in the year 1992-93, he had obtained stay from the Court, restraining the defendants from taking possession of the suit land pursuant to partition deed.
::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 1617. Version put forth by the defendants in their written statement as well as statement made by DW-1 appears to be .
correct that that dispute regarding partition continued upto 1991, where after parties to lis agreed to remain in possession of their respective shares by their mutual consent/agreement.
18. DW-2 namely Gian Chand, who happened to be President of Gram Panchayat Bankala, from 1970 to December, 1971, categorically stated that parties had mutually agreed in his presence that the plaintiff shall continue to cultivate suit land, till the defendants are residing outside the village. He further stated that it was agreed that when defendants would desire to cultivate suit land, possession would be handed over to the defendants.
19. This Court, after having carefully perused depositions having been made by DW-1 Joginder Singh, DW-2 Gian Chand, sees no force in the contention of Mr. G.D. Verma, learned senior Advocate, that there was no mutual understanding inter se parties, whereby plaintiffs were allowed to cultivate suit land, even after drawing of partition deed on 28.7.1979.
20. It is not in dispute that as per Section 134 of the HP Land Revenue Act "an owner or tenant to whom any land or portion of a tenancy, as the cases may be, is allotted in ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 17 proceedings for partition shall be entitled to possession thereof, as against the other parties to the proceedings and their legal .
representatives, and a Revenue Officer shall, on application made to him for the purpose by any such owner or tenant at anytime within three years from the date recorded in the instrument of partition give effect to that instrument so as it concerns the applicant as if it were a decree for immovable property.
21. Pleadings as well as evidence adduced on record by the respective parties, clearly proves on record that plaintiff was in permissive possession of the suit land with consent of other co-owners. It is well settled law that permissive possession can not be converted into adverse possession unless person in possession first returns possession to the owner of the property and then re-enters into property to claim hostile title. In the instant case, as has been taken note above, merely instrument of partition was drawn and owners had not taken actual possession of the land allotted to them, in the partition. Mr. G.D. Verma, learned Senior Advocate while placing reliance upon judgment of this Court in case Gajinder Singh and others versus Narotam Singh and others, 1995(2) Sim. L.C. 314 and another judgment of this Court in case Gopi Chand and another versus Sonam Dass and others, 1998(2) S.L.J. ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 18 1058, contended that matter with regard to delivery of possession of land in dispute, consequent to partition before .
revenue officer, falls within exclusive jurisdiction of revenue officer under the ambit of Section 134 of Land Revenue Act. He further contended that since the plaintiff failed to obtain possession under Section 134 of the Act ibid, he is estopped to approach civil court for such relief of possession.
22. This Court, sees no reason to differ with aforesaid exposition of law but, in the case at hand, both the parties, pursuant to partition agreed to remain in possession over the land of each other, till the time, they are asked to vacate the same, as such, provisions as contained in Section 134 of Land Revenue Act, may not be applicable in the present case.
Moreover, plaintiffs have specifically admitted that suit land belongs to defendants but since they failed to take possession within specified time, they have become owners by way of adverse possession. There is no dispute with regard to title of the defendants qua the suit land and plea of adverse possession having been taken by the plaintiffs, Mohan Singh and others, was not available in terms of judgment passed by Hon'ble Apex Court in Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669.
::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 1923. Otherwise also, it emerges from plaintiff No.1's own deposition made before the Court that he being aggrieved with .
the instrument of partition recorded on 28.7.1979, had obtained stay from the court, restraining defendants from taking possession of suit land by the defendants. Though there is no record adduced by the defendants that immediately after recording of partition deed, plaintiffs had filed appeals before higher revenue courts, but, it has specifically come in the statement of DW-1 that Mohan Singh, plaintiff No.1, had been filing appeals before higher revenue courts and there is nothing in the cross-examination conducted on this witness, from where it can be inferred that aforesaid version put forth by DW-1 was ever rebutted. It has specifically come in the statement of DW-1 that he never applied to the courts of Tehsildar and SDM for obtaining warrant of possession of suit land, in view of mutual agreement, arrived inter parties.
24. Though, Section 134 of the Land Revenue Act, as reproduced herein above, suggests that delivery of possession pursuant to partition deed could be taken by the party concerned, within a period of three years, from the date of recording of partition, but, bare reading of provisions contained Section 134 of Land Revenue Act, nowhere suggests that after expiry of period of three years from the date of recording of ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 20 partition, party , who was unable to procure partition within three years, as prescribed under Section 134 of the Land .
Revenue Act, is estopped from filing civil suit for recovery of possession pursuant to partition deed. Most importantly, in the instant case, despite there being partition deed, admittedly drawn on 28.7.1979, parties continued to be shown/reflected as co-owners in the column of ownership, which entries, subsequently, came to be challenged by way of suit having been filed by the appellants-plaintiffs.
25. Leaving everything aside, the suit of the plaintiffs for decree of declaration to the effect that he became owner of suit land by way of adverse possession is/was not maintainable in light of the judgment passed by Hon'ble Apex Court. Their lordships of the Hon'ble Supreme Court in Gurdwara Sahib v.
Gram Panchayat Village Sirthala, (2014) 1 SCC 669, have held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Their lordships have held as under:
"8. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 21 appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
26. At this stage, this Court also deems it necessary to .
deal with the specific objection raised by the learned counsel representing the respondents with regard to maintainability and jurisdiction of this Court, while examining correctness of the concurrent findings of facts recorded by the Courts below. Mr. Ravinder Thakur, learned Advocate, while inviting the attention of this Court to the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, contended that the present appeal deserves to be dismissed. The Hon'ble Supreme Court in the aforesaid judgment has held as under:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
(p.269) ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 22
27. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, .
concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-appreciating the evidence available on record, but as emerges from the case referred above, there is no complete bar for this Court to upset the concurrent findings of the Courts below, if the same appears to be perverse. However, in the instant case, findings returned by the learned Courts below, appear to be based upon proper appreciation of evidence as well as law, and as such, by no stretch of imagination, findings of the learned Courts below can be termed to be perverse, as such, this Court sees no reason to interfere with the concurrent findings of facts recorded by Courts below.
28. After having carefully perused record vis-à-vis impugned judgments passed by courts below, this Court sees no illegality and infirmity in the judgments and decrees passed by learned Courts below. The substantial question of law is answered accordingly.
::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 23 RSA No. 406 of 201129. It is not in dispute that after passing of judgment .
and decree dated 11.3.2004, in Civil Suit No. 55/1 of 2002, having been filed by Mohan Singh and others (appellants in RSA No. 77 of 2005), which was further upheld in appeal, by the learned District Judge, Sirmaur, vide judgment and decree dated 2.12.2004, Joginder Singh and others (appellants in RSA No. 406 of 2011), preferred a suit for possession in the Court of Civil Judge (Junior Division), Nahan, District Sirmaur, which came to be registered as Civil Suit No. 146/1 of 2005. It is also not in dispute that aforesaid suit was decreed and Joginder Singh and others were held entitled for possession of suit land, in terms of instrument of partition, and order dated 9.8.77.
Being aggrieved and dissatisfied with the aforesaid judgment and decree, Mohan Singh and others preferred appeal before learned District Judge, Sirmaur, which came to be registered as CA No. 17-CA/13 of 2010. Learned District Judge, vide judgment and decree dated 7.6.2011, accepted the appeal having been preferred by Mohan Singh and others, as a result of which, judgment and decree passed by trial Court came to be set aside.
30. Careful perusal of judgment and decree dated 7.6.2011, passed by learned District Judge, clearly suggests ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 24 that judgment and decree passed by learned Court below was set side only on the ground that plea of res sub judice as .
envisaged under Section 10 CPC could not be waived. Learned first appellate Court taking note of the fact that Mohan Singh and others had filed Regular Second Appeal in this Court, against judgment and decree passed by learned District Judge on 2.12.2004 in Civil Appeal No. 22-CA/13 of 2004, whereby civil suit No. 55/1 of 2002 filed by Mohan Singh and others was dismissed, held that learned Court below erred in concluding that there was waiver on the part of defendant No. 1 Mohan Singh to the principle of res sub judice. Learned District Judge, further held that it was incumbent upon as well as legally enjoined upon learned Court below to have revered said principle and as such, judgment and decree passed by learned trial Court is bad in law.
31. After having taken note of aforesaid judgment passed by learned District Judge, it can be safely concluded that there is no discussion, if any, qua other issues, save and except principle of res sub judice.
32. It is not in dispute that the ultimate aim of principle of res sub judice is to avoid multiplicity of litigation, as well as to abort/avoid frivolous litigation, however in the instant case, as clearly emerges from the judgment passed by learned trial ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 25 Court, that at no point of time, Mohan Singh and others placed on record document, if any, suggestive of the fact that that .
High Court, while entertaining Regular Second Appeal, having been preferred by Mohan Singh against judgment and decree dated 2.12.2004, passed in first appeal, whereby judgment and decree passed in Civil Suit No. 55/1 of 2002 were upheld, granted stay. Otherwise also, plea of res sub judice as encompassed under Section 10 CPC, is required to be taken specifically by way of preliminary objections in the written statement, if any, filed on behalf of the defendants.
33. Interestingly, there is no objection, if any, taken by the defendants in the written statement that the suit having been filed by Joginder Singh and others is required to be stayed in view of the pendency of the Regular Second Appeal before this Court. Moreover, it clearly emerge from the written statement having been filed by Mohan Singh and others, in the suit for possession filed by Joginder Singh and others, that factum with regard to partition inter se parties, as claimed by Joginder Singh in the instant suit as well as earlier suit having been filed by Mohan Singh, was totally denied, rather, defendant No.1- Mohan Singh claimed himself to be in exclusive possession of the suit land, after having acquired title qua the suit land, by way of adverse possession.
::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 2634. Learned trial Court, while decreeing subsequent suit filed by Joginder Singh, rightly held that since no specific plea .
with regard to pendency of Regular Second Appeal was taken in the written statement, plea of res sub judice was waived. Apart from above, this Court was unable to find any document in the record, from where it could be inferred that copy of stay, if any, issued by High Court, against judgments and decrees passed by learned Courts below, in Civil Suit No. 55/1 of 2002, was ever placed on record. Moreover, perusal of record pertaining to RSA No. 406 of 2011 titled Joginder Singh and others versus Mohan Singh and others, nowhere suggests that judgment and decree passed by learned first appellate Court upholding judgment and decree passed in Civil Suit No. 55/1 of 2002, was ever stayed by this Court in the RSA having been filed by Mohan Singh.
35. Their lordships of the Hon'ble Apex Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705, have held that mere filing of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the Court below. Their lordships have held as under:
"8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate Court and the appellate Court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in the Rule 5 aforesaid, is the ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 27 existence of sufficient cause in favour of the appellant on the availability of which the appellate Court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate Court is that in spite of the appeal having been entertained for hearing by the appellate Court, the appellant may .
not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the Court dealing with a prayer for the grant of stay asks to itself is: Why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted."
36. Since RSA No. 77 of 2005 stands decided vide instant judgment, substantial question of law No.2, framed in RSA No. 77 of 2005, requires no discussion.
37. The case law relied upon by Mr. G.D. Verma, learned Senior Advocate, i.e. AIR 2003 Karnataka 380, is not applicable in the present case. In the case referred /relied upon above, it has been held that concurrent findings of fact that defendant had proved her title, can not be interfered with in the second appeal. In the case at hand, as has been held above, plea of adverse possession could not be taken by the plaintiffs while filing suit for declaration, declaring them to be owner of the suit land by way of adverse possession.
38. Consequently, in view of detailed discussion made herein above as well as law laid down by the Hon'ble Apex Court, RSA No. 406 of 2011 is allowed, after setting aside ::: Downloaded on - 29/08/2017 22:56:14 :::HCHP 28 judgment and decree dated 7.6.2011 passed by District Judge, Sirmaur at Nahan in Civil Appeal No. 17-CA/13 of 2010.
.
39. RSA No. 77 of 2005 is dismissed. Judgment and decree dated 11.3.2004 passed in Civil Suit No. 55/1 of 2002 by the Civil Judge (Senior Division), Sirmaur at Nahan, which was upheld in Civil Appeal No. 22-CA/13 of 2004 by the District Judge, Sirmaur at Nahan, is further upheld.
Pending applications, in both the appeals, are disposed of. Interim orders, if any, are vacated.
r (Sandeep Sharma)
Judge
August 29, 2017
Vikrant
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