Himachal Pradesh High Court
Sunka And Others vs Respondents on 22 May, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.109 of 2006.
Reserved on : 26.4.2017.
Decided on : 22nd May, 2017.
.
Sunka and others ....Appellants.
Versus
...Respondents.
Ram Dhan and others
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the appellants : Mr. Ashwani K. Sharma, Sr. Advocate with
Mr. Jiwan Kumar, Advocate.
For the respondents : Mr. Rajnish K. Lall, Advocate.
Chander Bhusan Barowalia, Judge.
The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellant against the judgment and decree, dated 18.11.2005, passed by the learned District Judge, Bilaspur, District Bilaspur, H.P, in Civil Appeal No.98 of 2003, whereby the learned Appellate Court below has affirmed the judgment and decree passed by learned Senior Sub Judge, Bilaspur, District Bilaspur, (H.P), in Case No.91-1 of 1990, dated 31.5.2003.
2. Briefly stating facts giving rise to the present appeal are that respondents/plaintiffs (hereinafter referred to as 'plaintiffs') filed a suit for injunction and in alternative for possession against the appellants/defendants (hereinafter referred to as 'defendants') alleging that land comprising Khewat No.102 min, Khatauni No.119 min, Khasra 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 25/05/2017 00:00:30 :::HCHP 2No.164 and 167, measuring 6.14 bighas, situated in Village Jamthal, Pargana and Tehsil Sadar, District Bilaspur, H.P, (hereinafter referred to as 'suit land') in the ownership and possession of the plaintiffs. The .
defendants have no right, title or interest in the suit land, but they have started causing interference in the suit land and threatening to dispossess the plaintiff from the suit land forcibly. The defendants started interfering in the suit land on 1.8.1990 by cutting the grass from there and when they were asked not to do so, they threatened to dispossess the plaintiff from the suit land. It is further averred that on 19.3.1990, demarcation was conducted qua the suit land, which was confirmed by the Assistant Collector IInd Grade and during demarcation, the defendants were not found in possession of any part of the suit land whereas the plaintiff was found in exclusive possession and new construction raised by the plaintiff was also found in his own land.
3. The suit was resisted and contested by defendants by filing written statement alleging that plaintiff has no cause of action to file the suit and the suit is not maintainable in the present form being barred by time. They have also contended that suit is also barred by principle of resjudicata. In reply, they have specifically contended that they are in possession of the suit land having become its owner by way of adverse possession. The defendants are owners of the portion of the suit land, as they are in possession since the time of Thagu, predecessor-in-interest of the parties and their houses are existing ::: Downloaded on - 25/05/2017 00:00:30 :::HCHP 3 thereon. It has been denied by the defendants that any demarcation was conducted by the plaintiff on 19.3.1990 and the defendants were not found in possession of the suit land.
.
4. The learned trial Court framed following issues :
"1. Whether the plaintiff is entitled to the relief of possession of the suit land being its owner as alleged? OPP.
2. Whether the suit is not maintainable being time barred as alleged? OPD.
3. Whether the suit is barred by principle of resjudicata as alleged ? OPD.
4. Whether the defendants are in possession of part of the suit land and have become its owner by way of adverse possession as alleged ? OPD.
5. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction and proper Court fee has not been paid ? If so, its effect ? OPD.
6. Relief."
5. The learned trial Court after deciding Issue No.1 in favour of the plaintiffs, Issue Nos.2 to 5 against the defendants, decreed the suit.
6. Feeling aggrieved thereby the defendants maintained first appeal before the learned District Judge, Bilaspur, assailing the findings of learned Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective.
However, the learned Appellate Court below affirmed the findings of the learned trial Court and dismissed the appeal. Now, the appellant has ::: Downloaded on - 25/05/2017 00:00:30 :::HCHP 4 maintained the present Regular Second Appeal, which was admitted on the following question of law :
"Whether the findings of the learned trial Court and first .
Appellate Court are dehors the evidence on record and non-consideration of the evidence, which if considered, would have led to the opposite conclusion ?"
7. Learned Senior Counsel appearing on behalf of the appellant has argued that the appellant constructed the house in their own land and the respondent has maintained the suit without any cause and the demarcation report has not attained finality. He has argued that the learned Courts below have failed to take into consideration this fact that the defendants have proved on record that their houses were already constructed on the suit land almost 25 years back from the date of filing of the suit. He has further argued that the plaintiff in his statement in criminal case has admitted the existence of old house of the defendants on the disputed land and those houses were constructed by their forefathers. He has further argued that even otherwise also the defendant has become owner-in-possession of the suit land by way of adverse possession. On the other hand, learned counsel appearing on behalf of the respondent has argued that the learned Court below has passed the decree for suit of possession and rightly restrained the defendants from interfering in the suit land, so the impugned judgment and decree passed by the learned lower Appellate Court below needs no interference.
::: Downloaded on - 25/05/2017 00:00:30 :::HCHP 58. In rebuttal, learned Senior counsel appearing on behalf of the appellant has argued that as the appellants are owner and they had claimed adverse possession that plea was neither considered by the .
learned Court below or adjudicated upon in their right perspective, so the impugned judgment and decree passed by the learned Courts below is against the law without appreciating the facts, which have on record to its true perspective and liable to be set aside.
9. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail.
10. The defendant has alleged the adverse possession on the suit land and DW-1 Sunka Ram, while appearing in the witness box has stated that his land is situated adjacent to the land of the plaintiff and they have their residential houses on 1.10 bigha of land belonging to the plaintiff since their forefathers and one house has been constructed by Govinda about 25 years ago in which Sukh Ram, worked as mason. He has further stated that when the plaintiff took the demarcation of the land in March, 1991 then 1.10 bigha of land of the plaintiff was found in possession of the defendants and the defendants have become the owner of the suit land. He has also stated that the plaintiff had also filed a criminal case, which was decided in favour of the defendants. In his cross-examination, he has stated that he cannot tell in which month the construction work of the house was started. He ::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 6 has also admitted that when the construction of the house was started at that time, he had no knowledge that the area under the construction belonged to the plaintiff. Statement of DW-1 was recorded on 9.1.1991 .
meaning thereby till 1991, he was not aware of the ownership of the plaintiff. Though, he has denied in cross-examination that the house was constructed after the institution of the suit. However, he has admitted in his cross-examination that Bhagat Ram-plaintiff is owner-in-
possession of the suit land. DW-2 Sukh Ram, has deposed that he had constructed the house of Govinda about 25 years ago, in which he worked as mason and when the house was constructed the plaintiff has not objected. In his cross-examination, he has showed his ignorance to tell the month and year of the construction of the house. However, he has specifically stated that he had constructed only two rooms and after the construction, he has never visited the disputed place. DW-3 Nand Lal, has deposed that the plaintiff had conducted demarcation of the suit land and during demarcation, the defendants were found in possession of the land of the plaintiff to the extent of 1.10 bigha and 3 houses have been constructed on this 1.10 bigha of land and part of the suit land is cultivable. He has further stated that before the demarcation the party had no dispute. In his cross-examination, he has stated that he cannot tell the month and year of construction of the house. In his further cross-examination, he could not give the description and number of rooms of house of Govinda. He has further ::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 7 admitted that the son of the plaintiff had also filed a criminal case against him. PW-1 Nikku Ram has stated in his cross-examination that the houses of the plaintiff are also situated on the suit land. He has .
also denied that during the demarcation, the houses of the defendants were found in the suit land. PW-3 Giand Chand, has also stated in his cross-examination and admitted that the houses of Govinda, Sunka Ram and Nikku Ram are situated in 1.10 bigha of land, which have been constructed about four years ago prior to making his statement in the Court. Thereafter, statement of Ram Dhan, Special Power of Attorney of Bhagat Ram, while appearing in the witness box as PW-1, has stated that his father Bhagat Ram is owner of the suit land and defendants have no right, title or interest over the suit land. He has further deposed that in the year 1999, when the defendants interfered in the suit land, he applied demarcation and which demarcation was admitted by the defendants. At the time of demarcation, there was no construction of the defendants on the suit land. He has deposed that he had also moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, in which the defendants had made the statement that they are not constructing any house over the suit land nor they intend to construct any such structure. He has also stated that his grand father was tenant of the suit land and had become its owner.
Thangu Ram was grand father of Bhagat Ram, who had two sons Balia and Sahlo and Sahlo expired before Balia and the present plaintiff is the ::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 8 son of Balia and Sahlo had two sons Gurditta and Chuhru. He has denied that this land was previously in the occupation of Thangu Ram, as tenant. He has also constructed a house. He has also denied that .
the houses over the suit land have been constructed long back.
11. From the evidence on record, copy of jamabandi for the year 1986-87 Ex.P-1, land is recorded in the ownership and possession of Bhagat Ram (plaintiff). Ex.P-2 copy of Khasra Girdwari w.e.f.
30.10.1987 to 21.2.1990 the same entries found. Ex.PD copy of jamabandi for the year 1971-72, which was prepared after the consolidation showing the plaintiff to be in ownership and possession of the suit land. Earlier also in Case No.39/1 of 1990 titled Sunka Ram vs. Bhagat Ram etc. vide judgment dated 20.4.1991, copy of which is Ex.PE, suit was dismissed by the learned Civil Judge, Bilaspur, District Bilaspur, H.P. In that suit, the defendant was plaintiff and claim was for the damages for destruction of crop and the suit was dismissed.
Similarly, in the other documents on record i.e. jamabandi for the year 1996-97, 1991-92 and 1986-87, plaintiff is recorded in ownership and possession of the suit land. When the revenue record also goes to show that the plaintiff is in ownership and possession of the suit land and the presumption of truth is attached to the revenue record is not rebutted by the defendants, it can safely be held that it is the plaintiff, who is owner-in-possession of the suit land. During the consolidation operation, interim draft was also prepared which is evident from Ex.PO, ::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 9 Ex.PQ and Ex.PR and after the conclusion of the consolidation operation, Misal Haqiat Bandobast Jadeed was prepared vide Ex.PD in the year 1971-72, in which Bhagat Ram (plaintiff) has been recorded as owner-
.
in-possession of the suit land. The defendants have not been shown in possession on any part of the suit land. It is the case of the plaintiff that they are coming in possession of the suit land since long even before the consolidation. The defendants are not entered in possession of any part of the suit land. In case had they been in continuous possession of the land for such a long time, it was expected that entry to that effect must have been made in the revenue record. In the absence of such entry, it cannot be believed that the defendants had been possessing the land before the consolidation operation. Though, the defendants have placed on record Ex.DA to show that Khasra No.307, 308 and 309 were carved out of previous Khasra No.164 and its mutation have been sanctioned in favour of Balia to the extent of one share and Surjan 1/3rd share etc, vide order dated 21.1.1966, but vide order dated 6.9.1970, the same was again attested and sanctioned in favour of Bhagat Ram. In cross examination, the defendants have specifically admitted that the plaintiff was owner of the suit land. The defendants have also admitted that demarcation of the suit land was taken by the plaintiff. Ex.PH and Ex.PI, copies of demarcation report qua Khasra No.164. The perusal of these documents show that at the time when the demarcation was made on 17.1.1990, construction of the ::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 10 defendant was not found on the suit land. The suit was filed before the learned trial Court on 3.8.1990 and when the demarcation was taken, no construction of the defendant was found. It will go to show that till .
the filing of the suit, the defendants have not raised any construction over the suit land and at the time of demarcation, it was also found that Ram Dhan son of Bhagat Ram (plaintiff) was raising construction of a house of 20 feet in length and 10.05 feet in width in Khasra No.167, which was admittedly adjacent to the suit land. The plaintiff is owner of the suit land and suit for possession now is based on title and it is not necessary for the plaintiff to prove his dispossession for seeking the relief of possession. The plaintiff on the basis of his title can recover back the possession of the suit land against the defendants and it is for the defendants to show that they are in adverse possession of the suit land for 12 years before filing of the suit. Suit for possession based on title even if dispossession is also alleged the defendants can only succeed if they proved that their possession has become adverse to the plaintiff. As far as the plea of adverse possession taken by the defendants are concerned, the defendants have failed to prove their adverse possession, in accordance with law, as no ingredient of adverse possession is on record.
12. In Pyare Lal vs. State of Himachal Pradesh, 2012 (3) Himachal Law Reporter, 1855, has observed in para 27 as under :
::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 11"27. Their Lordships of the Hon'ble Supreme Court in R. Hanumaiah and another Vs. Secretary to Government of Karnataka, Revenue Department and .
others, (2010) 0 5 SCC 203 have dealt with the nature of proof required in suits for declaration of title against the Government as under:
"19. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the r government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government ::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 12 to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper .
records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements. 20. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. 21. A court should necessarily ::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 13 seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds .
tracing the title for a period of more than thirty years;
or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession authorized or unauthorized; permissive;
casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title). 22. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient.::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 14
Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. 23. As noticed above, many a time it is .
possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may."
13. In Sher Singh and others vs. Virender Singh and others, 2015 (1) Himachal Law Reporter, 134, has held as under:
"[13] The plea of ownership simplicitor is based on the concept of title which one may have acquired through various sources like succession, gift, will, sale, exchange etc. where one is in possession of the suit land lawfully. On the other hand, when the plea of adverse possession is projected, inherent in the plea is that someone-else was the owner of the property.
(See: P.Periasami (dead) by LRs. Versus P.Periathambi and others, 1995 6 SCC 523. To establish a claim of title by prescription, that is adverse possession for 12 years or more, possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period existing 12 years. Having said so, it can safely be concluded that the pleas based on title and adverse possession are mutually inconsistent and ::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 15 the latter does not begin to operate until the former is renounced. (Refer: Mohan Lal (deceased) through his LRs Kachru and others versus Mirza Abdul Gaffar and .
Another, 1996 1 SCC 639, L.N.Aswathama and another versus P.Prakash, 2009 13 SCC 229 .
[14] Once, the plaintiffs have raised mutually inconsistent pleas, an omnibus issue cannot be framed to determine these pleas. The suit of the plaintiffs was not maintainable when they sought to raise pleas which were mutually destructive. The plaintiffs were required to opt for either one of the two claims. Even in that case, the plaintiffs could have only opted to set-up the plea of title because suit for declaration on the basis of adverse possession could not have been filed as this claim can only be agitated by way of defence and can be used only as a shield and not a sword as held by the Hon'ble Supreme Court Gurdwara Sahib versus Gram Panchayat Village Sirthala and another, 2014 1 SCC 669 in the following terms:-
"8. There cannot be any quarrel to this extent that 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 are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 16
14. In Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan & Ors, 2008 (4) Civil Court Cases 558 (S.C) has observed in para 18 as under :
.
"[18] In Karnataka Board of Wakf v. Govt. of India (2004) (3) Civil Court Cases 326 (S.C) : 2004 (2) Apex Court Judgments 379 (S.C) :2004 (10) SCC 779 at para 11, this court observed as under:-
"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."
The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading ::: Downloaded on - 25/05/2017 00:00:31 :::HCHP 17 adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his .
adverse possession."
15. Applying the law to the facts and circumstances of the case, it is clear that the defendants have failed to prove the adverse possession and even otherwise also the plaintiff was owner-in-
possession of the suit land. So, substantial question of law is decided accordingly holding that the learned Courts below have appreciated the evidence to its true perspective.
16. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed. In the peculiar facts and circumstances of the case, parties are left to bear their own costs.
Pending application (s), if any also stands disposed of.
(Chander Bhusan Barowalia) nd 22 May, 2017 Judge (CS) ::: Downloaded on - 25/05/2017 00:00:31 :::HCHP