Himachal Pradesh High Court
State Of H.P. And Another vs Sanjeev Pandit on 3 April, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 391 of 2009
Decided on: April 3, 2023
________________________________________________________
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State of H.P. and another .........Appellants
Versus
Sanjeev Pandit ...Respondent
________________________________________________________
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
________________________________________________________
For the appellants: Mr. Rajan Kahol, Mr. Vishal Panwar and
Mr. B.C. Verma, Additional Advocates
General with Mr. Rahul Thakur and Mr.
Ravi Chauhan, Deputy Advocates
General.
For the respondent: Mr. Anubhav Chopra, Advocate.
________________________________________________________
Sandeep Sharma, J.
Instant Regular Second Appeal filed under S.100 CPC lays challenge to judgment and decree dated 26.2.2009 passed by learned Additional District Judge, Fast Track Court, Shimla, Himachal Pradesh in Civil Appeal No. 20-S/13 of 2008 affirming judgment and decree dated 5.3.2008 passed by learned Civil Judge (Senior Division), Shimla, in Civil Suit No. 36/1 of 2006/04, whereby suit for possession having been filed by the respondent/plaintiff (hereinafter, 'plaintiff') came to be partly decreed.
2. Precisely, the facts of the case as emerge from record are that the plaintiff filed a suit for possession and recovery, averring therein that he is owner of land described by Khata No.4, Khatauni No. 20, Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 05/04/2023 20:32:48 :::CIS -2-Khasra no. 24, measuring 25.54 square metres situate in Mohal Kakhu, Mohal Station Ward, Chhota Shimla, Tehsil and District, Shimla, .
Himachal Pradesh (hereinafter, 'suit land'). Plaintiff further averred in the suit that in the year 1992, Police Department unauthorizedly and illegally constructed two rooms on the suit land for running a Wireless Station. It is alleged that the suit land was occupied by the defendants and building work was carried out by them without his consent or consent of his deceased father, who was alive at that time. It is averred that the defendants illegally took possession of land in dispute and raised construction without any right, title or interest. It is averred that when Gopal Krishan Pandit i.e. late father of the plaintiff, Sanjeev Pandit, came to know about unauthorized and illegal construction raised by the defendants, he immeidatly took up the matter with the defendants, but they did not respond. The defendants have no right to use the property of in dispute. Plaintiff averred that he intends to use the property in dispute for beneficial purposes and thus require immediate possession of suit land in its original position. Plaintiff also claimed that he is entitled to use and occupation charges at the rate of Rs.10,000/- per month from the defendants from the date of occupation of disputed land till the date of filing of suit. Before filing suit at hand, plaintiff served the defendants with notice under S.80 CPC, calling upon them to hand over vacant and peaceful possession of suit land and pay use and occupation charges but since no heed was paid to ::: Downloaded on - 05/04/2023 20:32:48 :::CIS -3- aforesaid request of the plaintiff, he was compelled to institute the suit in question.
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3. Aforesaid claim put forth by the plaintiff came to be resisted by the defendants, who in their written statement, besides raising preliminary objections of locus and maintainability of suit, though nowhere denied the claim of the plaintiff that he is owner of suit land but claimed that the land in question is/was in possession of Jakhu Temple Trust Committee since times immemorial. Defendants set up a case that Jakhu Temple Trust Committee constructed two very small rooms on suit land and handed over the same to defendant No.2.
Defendants also stated in the reply that vide communication dated 15.11.1986, Deputy Commissioner was requested to provide suitable accommodation for establishment of VHF at Jakhu. Pursuant to said letter, Deputy Commissioner handed over disputed accommodation to one B.L. Gupta, the then Inspector, Wireless. Defendants further claimed that entire local VHF wireless communication of Police Department pertaining to law and order, natural calamities, VVIP security, regulating traffic etc. is controlled and regulated with the help of station set up on the suit land. Defendants claimed that structure is in existence prior to the year 1986 and it was not raised by them rather by Jakhu Temple Trust Committee.
4. In replication to the written statement, plaintiff averred that a communication was sent to Additional Secretary (Home) to the ::: Downloaded on - 05/04/2023 20:32:48 :::CIS -4- Government of Himachal Pradesh, who vide letter dated 28.12.2003, requested Director-General of Police to take appropriate action in the .
matter. However, no action, whatsoever, was taken by the defendants.
While disputing claim of the defendants, that suit property belongs to Jakhu Temple Trust Committee and it was being managed by trust, plaintiff stated in the replication that he gifted some part of property to Jakhu Temple Trust Committee but that does not include land in dispute. Plaintiff further stated in the replication that the suit property
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r to was in occupation of Jakhu Temple Trust Committee and rooms were also not constructed by Jakhu Temple Trust Committee.
On the basis of pleadings adduced on record by respective parties, learned trial Court framed following issues:
1. Whether the plaintiff is entitled to the relief of possession of the suit land, as alleged? OPP
2. Whether the plaintiff is also entitled for a decree of sum of Rs.3,60,000/- on account of use and occupation charges, as alleged? OPP
3. Whether the suit is not maintainable? OPD
4. Whether the suit is bad for want of notice U/S 80 CPC? OPD
5. Whether the suit is bad for non-joinder of necessary parties? OPD
6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
7. Whether the suit is time barred? OPD
8. Whether no cause of action has accrued to the plaintiff? OPD
9. Whether the plaintiff has no locus standi to file and maintain the present suit? OPD
10. Whether the plaintiff is stopped from filing the present suit? OPD
11. Relief.::: Downloaded on - 05/04/2023 20:32:48 :::CIS -5-
6. Subsequently, on the basis of evidence led on record by .
respective parties, learned trial Court decreed the suit of the plaintiff for vacant and peaceful possession of the land but dismissed the suit qua recovery of Rs.3,60,000/- on account of use and occupation charges.
Both the parties filed appeals against the judgment and decree dated 5.3.2008 i.e. Civil Appeal No. 19-S/13 of 2008 by defendants and Civil Appeal No. 20-S/13 of 2008 by the plaintiff before learned first appellate court, who vide judgment and decree dated 26.2.2009, accepted the appeal filed by the plaintiff and dismissed the appeal filed by the defendants. Plaintiff did not lay further challenge to the judgment and decree dismissing his appeal, whereas, defendants have filed present appeal against the judgment and decree, whereby first appellate court, while upholding the judgment and decree passed by learned trial Court, also directed the defendants to pay use and occupation charges of Rs.3,60,000/- besides handing over possession of suit land/premises to the plaintiff.
7. Present appeal came to be admitted on 28.2.2011 on the following substantial questions of law:
1. Whether both the courts below have erred by not taking into consideration that in view of the specific pleadings of the defendants to the effect that the defendant No.2 through a wireless organization is in possession of two small rooms since 1986, which were constructed long back and consequent upon the reference made to Deputy Commissioner, Shimla, vide office letter ::: Downloaded on - 05/04/2023 20:32:48 :::CIS -6- No. 24500 dated 15.11.1986, the possession of accommodation was handed over to the appellant on 15.11.1986. By non-
consideration of the aforesaid pleadings, both the courts below .
have fallen in error by not appreciating that the present suit is bad for non joinder of necessary parties as Jakhu Temple Trust Committee was a necessary party in the present suit and the preliminary objection to this effect has been taken in the written statement by the defendants?
2. Whether both the courts below have fallen in error by not appreciating that the defendants are in possession of the premises in question since the year 19876 and till the dat of the filing of the suit i.e., 31.12.2003, the plaintiff or his predecessor-in-interest has not objected to the possession of the predecessor-in-interest has not objected to the possession of the defendant over the premises nor they had objected to the construction of premises by the Jakhu Temple Trust Committee much prior to 1986 and as such, the suit is hit by Section 115 of the Indian Evidence Act, as the plaintiff is stopped to file the present suit on account of estoppal by silence and omissions?
3. Whether once it is proved on record of the case that the defendants are in possession of the suit premises since the year 1986 and no objection what-so-ever was raised by the plaintiff or his predecessor during the course of construction of the premises, i.e. much prior to 1986, the suit is liable to be dismissed on account of barred by limitation, delay and latches, hence, liable to be dismissed.
4. Whether the ld. First appellate court has wrongly reversed the findings of trial court when no reasonable and trustworthy and cogent evidence has been led by the plaintiff/respondent in support of his claim for recovery of any amount on account of use and occupation charges.
5. Whether the findings of the ld. First appellate court with regard to claim of the plaintiff for recovery of amount on account of use and occupation charges is based on presumptions, assumptions and ::: Downloaded on - 05/04/2023 20:32:48 :::CIS -7- hypothesis, which are otherwise not proved on the basis of the material on record, hence, such findings are liable to be set-aside.
6. Whether in the absence of any material on record, both the courts .
below have erred in holding that the plaintiff/appellant is owner of the premises in question, especially in view of the fact that all the necessary parties were not impleaded by the plaintiff to effectively and finally adjudicated upon this question and also the preliminary objection was raised in this behalf by the defendants/appellants.
7. Whether both the Courts below have fallen in error by not appreciating that no legal and valid notice under Section 80 CPC was served on defendants prior to filing of the present suit.
8. Whether there has been continuous mis- appreciating and mis- reading of pleadings of the parties and material evidence on record by both the Courts below, which has caused in justice to defendants, which itself is a substantial question of law.
9. Since all the substantial questions of law, on which the appeal at hand stands admitted are interconnected, rather pertain to specific question of misinterpretation and misreading of evidence led on record by the parties, by learned Courts below, while passing impugned judgments and decrees, this court deems it fit to deal with all the questions in one go to avoid repetition of evidence and facts.
10. Having heard learned counsel for the parties and perused the evidence, be it ocular or documentary, led on record by respective parties vis-à-vis reasoning assigned by learned Courts below, while passing impugned judgments and decrees, this court is not persuaded to agree with Mr. Vishal Panwar, learned Additional Advocate General that learned Courts below have misread or misappreciated the ::: Downloaded on - 05/04/2023 20:32:48 :::CIS -8- evidence. Though, in the case at hand, defendants tried to set up a case that suit property, on which two rooms were constructed either by .
the Jakhu Temple Trust Committee or by the Police Department, was in possession of Jakhu Temple Trust Committee and plaintiff is not the owner of suit property but careful perusal of evidence led on record by plaintiffs clearly proves on record that plaintiff is sole owner of suit property. Earlier Gopal Krishan Pandit, father of the plaintiff was owner but after his death, land came to be mutated in favour of the plaintiff.
Copy of Jamabandi for the years 1996-96, Exhibit. PW-1/A and PW-
1/B and DW-2/V-1 to DW-2/V-3 clearly suggests that Gopal Krishan was owner of suit land. Initially entry in the column of possession was "Mandir Shri Hanuman Ji Kabij Mandraja Khatauni No. 11 Marfat Betar Vidhag", nature of land was also described as, "Gair Mumkin Betar Ghar Pucca Ek Manjila" In the remarks column of Jamabandi, note has been given in red ink that on the death of Gopal Krishan, mutation No. 47 of inheritance was entered in the name of plaintiff and others. It is also mentioned that mutation No. 49 of partition was sanctioned. In the partition, said land besides other land fell to the share of plaintiff and his mother Smt. Rama Pandit. Exhibit. PW-1/G i.e. copy of Jamabandi for the years 2001-02 further reveals that plaintiff is the owner of land involved in the suit and possession of the temple is shown over such land through wireless department. In the remarks column there is a mention of mutation No. 49 of partition and further vide mutation No. ::: Downloaded on - 05/04/2023 20:32:48 :::CIS -9- 55, entries of possession pertaining to dispute land have been corrected and name of Shri Hanuman Mandir Committee has been .
deleted and only Wireless Department has been shown in occupation of the land in dispute.
11. Exhibit. DW-2/V-3 is the copy of missal hakiyat which clarifies that suit land was owned by Gopal Krishan. Needless to say that presumption of truth is attached to revenue record and such presumption is rebuttable. However, in the case at hand, defendants have not been able to rebut the presumption of truth attached to revenue record placed on record by the plaintiffs suggestive of the fact that he is owner of suit property. It is further evident from the record that plaintiff and his mother gifted some land to Jakhu Temple Trust Committee on 2.7.2003 vide Exhibit. PW-4/A. Bare perusal of aforesaid documents clearly suggests that land in Khasra Nos. 25 and 26 was gifted by plaintiff to the temple trust. However, suit land was never gifted by plaintiff or his predecessor-in-interest to the Jakhu Temple Trust Committee. There is nothing on record to suggest that the plaintiff or his predecessor-in-interest, ever abandoned their possession on the land in dispute.
12. In the case at hand, defendants also set up a case that land in question was allotted to them by Deputy Commissioner, Shimla who at the relevant time was Chairman of the Jakhu Temple Trust Committee.
Since Jakhu Temple Trust Committee was not the owner of suit land, there was no question, if any, for the Deputy Commissioner, being ::: Downloaded on - 05/04/2023 20:32:48 :::CIS
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Chairman of the Trust to give suit land for establishment of Wireless Station. Copies of Jamabandi for the year 2001-02, Exhibit. PW-1/G .
and DW-2/V-1 to DW-2/V-3, further clarify that mutation No. 59 of correction was attested, whereby entry of Mandir Shri Hanuman Ji Kabij Mandraja Khatauni No. 11 Marfat Betar Vidhag was deleted.
There is nothing on record, suggestive of the fact that mutation No. 59 was ever laid challenge by the defendants in revenue court. Since Temple Committee was never in possession of suit land, there was no
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r to occasion for it to further hand over possession of suit property to the Police Department.
Since, in the case at hand, it is not in dispute that plaintiff filed suit for possession on the basis of title and it is none of the case of the defendants that they became owner of disputed land by way of adverse possession, no illegality can be said to have been committed by the learned Courts below, while holding plaintiff entitled to possession on the basis of title.
14. Though, defendants successfully proved on record by leading cogent and convincing evidence that two rooms constructed on suit land were possessed by them and at relevant time, Wireless Station was being run but such evidence, if any, would not make defendants entitled to continue with the possession of property, which actually belongs to the plaintiff. Similarly, this Court finds that defendants also proved on record that electricity and water connections were in the ::: Downloaded on - 05/04/2023 20:32:48 :::CIS
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name of Police Department. It has also come in evidence that property tax qua aforesaid property was being paid by the Police Department.
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Since there is no document led on record suggestive of the fact that "Jakhu Temple Trust Committee: was the owner of property, possession, if any, of the rooms given by Deputy Commissioner, Shimla to the Police Department, enabling it to run Wireless Station, is of no consequence.
15. Sanjeev Pandit, while deposing as PW-1 categorically deposed that he is in possession of 44000 square metres of land in Jakhu. He deposed that earlier suit land was owned and possessed by his father Gopal Krishan Pandit and after his death, he inherited his estate. He deposited that defendants did not take permission from him or his father before constructing rooms. He deposed that he and his father never permitted the defendants to use disputed land without use and occupation charges. He deposed that suit land was never acquired by the defendants nor any compensation paid to them. He deposed that rooms were built in 1992 and since then, department is using the same. He also deposed that his late father objected to illegal occupation on dispute land by the defendants but in vain. He successfully proved on record notice sent by him to the defendants under registered cover, calling upon the Department to vacate the premises. Exhibit. PW-1/F is the copy of communication received by the advocate of the plaintiff. Plaintiff claimed that without right or ::: Downloaded on - 05/04/2023 20:32:48 :::CIS
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authority, 200 square feet area has been occupied by the defendants,.
He further deposed that now a days, such area can fetch monthly rent .
of Rs.40,000-50,000. He deposed that he demanded use and occupation charges at the rate of Rs.10,000/- per month. He deposed that Hanuman Mandir Committee never remained in possession of land in dispute. Some part of land, which fell to his share, was gifted by him to Shri Hanuman Mandir Committee vide gift deed mark X-1 (Exhibit.
PW-4/A). He deposed that in revenue record entry qua possession was
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r to wrongly entered, which was corrected. Exhibit. PW-1/G is the copy of Jamabandi to that effect.
PW-2 Rakesh Sharma, the then Sub Divisional Magistrate (Urban) deposed that he was Assistant Commissioner, Hanuman Mandir Committee and during his tenure, plaintiff and his mother Rama pandit, had gifted land to the Jakhu Temple Trust Committee, vide gift deed dated 2.7.2003. In his cross-examination, he stated that disputed rooms were in existence prior to his joining as Sub Divisional Magistrate(Urban)/Assistant Commissioner, Jakhu Temple Trust Committee. He also stated that plaintiff never objected in writing to the construction of rooms during his tenure as Sub Divisional Magistrate/Assistant Commissioner.
17. PW-3 Vinod Kumar deposed that he lives in Boileauganj, Shimla and he has given land to Tata Telecommunications for installation of mobile tower. He deposed that area let out by him measuring 550 ::: Downloaded on - 05/04/2023 20:32:48 :::CIS
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square feet to Tata Telecommunications fetched Rs.12,000/- per month. Exhibit. PW-3/A is the copy of lease deed which was entered .
into between PW-3 Vinod Kumar and Tata Telecommunications.
18. DW-2 Vijay Singh, sated that he was serving in the Wireless Department since August 2005. He deposed that Repeater Station was installed at Jakhu (Shimla) in the year 1986 for VIP security, communication etc. He further deposed that letter dated 15.11.1986, Exhibit. DW-2/A was written to Deputy Commissioner, Shimla for providing the accommodation. The Deputy Commissioner in turn handed over the possession of two rooms of Mandir Committee to Wireless Department. He deposed that possession of rooms was taken by B.L. Gupta, Inspector on 15.1.1986 itself as per Exhibit DW-2/B. He deposed that before Wireless Department took possession, rooms were in possession of Temple Committee. He deposed that the plaintiff or his father never objected to their possession.
19. If entire evidence led on record by respective parties is perused in its entirety, it can be safely inferred that at the time of handing over two rooms, if any, by the Jakhu Temple Trust to the defendants, plaintiff was actual owner of the suit land. Though plaintiff or his father had gifted some portion of land in Jakhu area to Jakhu Temple Trust, but definitely, there is nothing on record suggestive of the fact that suit land was also part of gifted land.
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20. As has been taken note herein above, entry in the column of cultivation in the name of Jakhu Temple Trust Committee was .
corrected on the request of the plaintiff. Vide mutation No. 55, entry of Mandir Shri Hanuman Ji Kabij Mandraja Khatauni No. 11 Marfat Betar Vidhag was deleted i.e. Exhibit. PW-1/G, DW-3/A and DW-2/V-I. Aforesaid correction made vide mutation No. 55 never came to be laid challenge as such, same has attained finality.
21. Since it stands duly proved on record that defendants were in unauthorized occupation of suit land, no illegality can be said to have been committed by learned first appellate court, while holding the plaintiff entitled to recovery of Rs.3,60,000/- on account of use and occupation charges from defendants at the rate of Rs.1,000/- per month.
22. Having scanned entire evidence vis-à-vis reasoning assigned in the judgments and decrees passed by learned Courts below, this court finds it difficult to agree with learned Additional Advocate General, that learned Courts below have failed to appreciate the evidence in its right perspective, rather, this court is convinced and satisfied that both learned Courts below have meticulously dealt with each and every aspect of the mater and there is no scope left for interference.
23. All the substantial questions of law are answered accordingly.
24. Now, it would be appropriate to deal with the specific objection raised by the learned counsel representing the defendant with regard ::: Downloaded on - 05/04/2023 20:32:48 :::CIS
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to maintainability and jurisdiction of this Court, while examining concurrent findings of law and facts returned by both the Courts below.
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Learned counsel for the respondents, invited 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, wherein the Hon'ble Supreme Court has held:
"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)
25. 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 ::: Downloaded on - 05/04/2023 20:32:48 :::CIS
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regard to aforesaid observation made by the Apex Court and true it is that in normal circumstances High Court, while exercising powers .
under Section 100 CPC, is restrained from re-appreciating the evidence available on record.
26. The Hon'ble Apex Court in Parminder Singh versus Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017, has held as under:
"14) In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal."
27. It is quite apparent from the aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by learned Courts below, rather same are based upon correct appreciation of evidence as such, deserve to be upheld.
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28. The appeal stands dismissed in the afore terms, alongwith all pending applications. Interim directions, if any stand vacated. Record .
of learned court below be sent back forthwith.
(Sandeep Sharma)
Judge
April 3, 2023
(Vikrant)
r to
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