Himachal Pradesh High Court
Kundan Singh & Others vs Of on 3 August, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .
RSA No. 474 of 2003 Reserved on : 28.7.2015 Decided on : 3.8.2015 Kundan Singh & Others .....Appellants.
Versus
of
Dheru & Others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
rt Whether approved for reporting?1 Yes.
For the Appellant: Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate.
For the Respondents: Mr. N.K Thakur, Sr. Advocate with Mr. Rahul, Advocate, for respondent No.1.
Sureshwar Thakur, Judge The instant appeal is directed against the impugned judgment and decree rendered by the learned District Judge, Una in Civil Appeal No. 81 of 2002 of 7.10.2003, whereby he while affirming the judgment and decree rendered by the learned Senior Sub Judge Una in Civil Suit No. 210/92 of 24.8.2002 dismissed the appeal preferred before him by the defendants/appellants.
1Whether reporters of the local papers may be allowed to see the judgment?
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2. The brief facts of the case are that the plaintiff Dheru filed a .
suit for permanent injunction restraining the defendants from interfering in the suit land. It has been averred in the plaint that the suit land is owned and possessed by the plaintiff. The suit land was of allotted to the plaintiff by the State of Himachal Pradesh in the year 1976 and thereafter the plaintiff reclaimed the land and made a lot of rt improvements thereon by spending huge amount. Now the defendant started threatening to interfere over the suit land. Hence, the present suit.
3. The defendants/appellants contested the suit and filed written-statement. Defendants in their written-statement have taken preliminary objection of the suit being not legally maintainable.
It has been alleged that the suit land bearing old Khasra No. 971 measuring 6 Kanals 17 marlas was allotted to the plaintiff in the year 1976 but plaintiff was never in physical possession of the same. The plaintiff was in possession of Khasra nos. 980 and 982 being owned and possessed by him. The plaintiff was told by the revenue staff that he was allotted land comprising Khasra No. 972 which is adjoining to his own land. The said khasra number is adjoining to ::: Downloaded on - 15/04/2017 18:40:59 :::HCHP ...3...
Khasra No. 971 which was in physical possession of deceased Phandi .
for the last 30 years and after his death the same is in possession of the answering defendants. The land comprised in khasra No. 972 was allotted to Chint Ram but the same was in physical possession of of the plaintiff. On 12.12.1991 when demarcation was conducted then the parties came to know about wrong possession. Thereafter the rt plaintiff moved an application before the D.C for correction, on the basis of which an inquiry was made. The plaintiff made a statement on 23.11.1992 admitting the possession of Phandi. The defendants have denied other averments made in the plaint.
4. The plaintiff/respondent filed a replication to the written-statement filed by the defendants and reasserted the stand taken in the plaint.
5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties at contest:-
"1. Whether the plaintiff is entitled to the relief of injunction, as prayed? OPP.
2. Whether the suit is not maintainable in the present form? OPD.
3. Whether the defendants have become owners of the suit land by way of adverse possession ? OPD.::: Downloaded on - 15/04/2017 18:40:59 :::HCHP
...4...
4. Relief."
.
6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit filed by the plaintiff/respondent. In appeal, preferred by the defendants/appellants before the learned First Appellate Court of against the judgment and decree of the learned trial Court the rt learned First Appellate Court dismissed the appeal and affirmed the findings recorded by the learned trial Court.
7. Now, the defendants/appellants have instituted the instant Regular Second Appeal before this Court assailing the findings recorded by the learned courts below in their impugned judgments and decrees. When the appeal came up for admission on 11.10.2004, this court admitted the appeal instituted by the defendants/appellants on the hereinafter extracted substantial questions of law:-
" (1) Whether both the Courts below have taken an erroneous view of law in holding the suit of the plaintiff/respondent to be maintainable by merely relying upon the revenue entries and ignoring the material documents i.e Ex. DW-4/A, DW-5/A, DW-
5/C, and Ex. DW-6/A. which prove the possession of ::: Downloaded on - 15/04/2017 18:40:59 :::HCHP ...5...
the defendants-appellants over the suit land before the .
institution of the suit? Have not both the courts below acted in excess of their jurisdiction in granting a decree of injunction in favour of the plaintiff-
respondent who was not proved to be in possession of the suit land?
of
2. Whether the trial Court has ignored the material evidence i.e Ex. DW-4/A the report of Shri Pirtam Chand merely on the ground that he was not examined rt by the defendants-appellants, when the statement of the said witnesses was recorded as DW-7, have not the finding of the Trial Court being adversely effected by ignoring such material evidence, which if considered, would have titled the scale?
3. Whether both the courts below have taken wrong view of law in holding the plaintiff/respondent to be entitled to the relief claimed in the suit, when the plaintiff-
respondent failed to plead and prove his dispossession during the pendency of the suit or otherwise?
Substantial question of Law No. 1,2 and 3:-
8. The suit of the plaintiff which stood decreed by both the Courts below was for permanent injunction restraining the defendants/appellants from interfering in the suit land. The decree of injunction rendered in favour of the plaintiff/respondent would stand vindication only when there was manifest portrayal ::: Downloaded on - 15/04/2017 18:40:59 :::HCHP ...6...
in the evidence existing on record of the plaintiff/respondent .
being in possession of the suit land. In the plaint it is averred that the suit property was allotted in favour of the plaintiff/respondent by the Government of Himachal Pradesh in the year 1976.
of Uncontrovertedly the suit land bore old Khasra No. 971 measuring 6 kanals 17 marlas. However, the land adjacent to it comprised in rt Khasra Nos. 980 and 982 also stood owned and possessed by the plaintiff/respondent. The pointed contention as canvassed by the defendants in their written-statement was of Khasra No. 971 which stood allotted in favour of the plaintiff/respondent having remained in physical possession of deceased defendant No.2 Phandi. An assertion of his having acquired title by adverse possession to the Khasra number aforesaid was bedrocked upon his having with an animus possidendi remained in physical possession thereof continuously for 30 years hitherto. However the assertion of the deceased Phandi having acquired title to the suit land by adverse possession stood withdrawn under a statement recorded on 4.3.2002. The effect of abandonment by the defendant Phandi of his plea of his having acquired title to the ::: Downloaded on - 15/04/2017 18:40:59 :::HCHP ...7...
suit land by adverse possession concomitantly in entwinement .
with the proclamations in Ex. DW-4/A and DW-5/A of old Khasra No. 971 being owned by the plaintiff/respondent besides of Khasra No. 973 being owned by the predecessor-in-interest of of the defendants/appellants No. 1 & 2 fosters, an apt conclusion especially when the communications qua the facts aforesaid as rt pronounced in DW-4/A and DW-5/A have not suffered repudiation by adduction of cogent evidence or the proclamations therein to the above effect having hence remained un-dislodged, that Khasra No. 971 is owned by plaintiff/respondent whereas old Khasra No. 973 is owned by defendants/appellants. The clinching pronouncements in DW-4/A and DW-5/A of Khasra No. 971 being owned by the plaintiff/respondent whereas Khasra No. 973 being owned by the defendant Phandi yet would not rest the controversy whether the plaintiff/respondent was tenably afforded a decree of injunction. Needless to say that a decree of injunction for it to acquire legal sinew or vigor necessitates loud and open pronouncements by evidence existing on record of the plaintiff/respondent being in possession of old Khasra No. 971.
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Both the learned courts below had concluded that old Khasra No. .
971 was in possession of the plaintiff/respondent. On the anvil of the conclusions drawn by both the Courts below of the plaintiff/respondent being in possession of old Khasra No. 971 of they proceeded to afford the decree of injunction in favour of the plaintiff/respondent. For the decree under challenge before this rt Court to be foisted with legitimacy, it is incumbent upon this Court to discern from the available evidence on record whether the findings and conclusions recorded by the both the courts below qua the plaintiff/respondent having held possession of old Khasra No. 971 hence his being entitled for decree of injunction acquire an aura of invincibility or legal formidability. The relevant, admissible and best evidence which necessitated besides warranted an appropriate appraisal was constituted in Ex. DW-
4/A and DW-5/A. Both the learned courts below discarded on legally unsound and frail reasons the probative efficacy and worth of both Ex. DW-4/A and DW-5/A. The untenable rejection of the Exhibits aforesaid by both the courts below has sequelled rendition of erroneous conclusions and findings on the ::: Downloaded on - 15/04/2017 18:40:59 :::HCHP ...9...
contentious and germane fact of whether the plaintiff/respondent .
held possession of old Khasra No. 971 as such was entitled to a decree of injunction. Both DW-4/A and DW-5/A stand for the reasons ascribed hereinafter bestowed with legal sanctity in their of respectively proclaiming the fact that the possession of Khasra No. 971 is held by the predecessor-in-interest of the rt defendants/appellants No. 1 & 2. The primadonna reason which prompts this Court to so conclude is that both Ex. DW-4/A and DW-5/A loudly bespeak the fact of possession of old Khasra No. 971 qua which a decree of injunction is sought by the plaintiff/respondent being held by the predecessor-in-interest of the defendants/appellants No. 1 and 2. Both Exhibits DW-4/A and DW-5/A have been proved by DW-7 and DW-5 respectively.
A perusal of the recorded deposition of PW-5 underscores the fact of his having proceeded to the spot for conducting/measuring the lands of the contesting parties. Even a perusal of the deposition of DW-7 who has proved Ex. DW-4/A does not unravel the fact that the Exhibits aforesaid with a portrayal therein of possession of old Khasra No. 971 being held by predecessor-in-interest of ::: Downloaded on - 15/04/2017 18:40:59 :::HCHP ...10...
defendants No 1 and 2 has been prepared without his carrying out .
the requisite measurements/demarcations. Consequently, when both concurrently besides depose in harmony qua the preparation of Ex. DW-4/A and DW-5/A having been preceded by theirs of carrying out the mandated measurements/demarcations, an apt inference which is, as a corollary drawable by this Court is that the rt portrayals recorded respectively in Ex. DW-4/A and DW-5/A qua possession of old Khasra No. 971 being not held by plaintiff/respondent rather by the defendants/appellants acquires immense legal fervor. Amplifying vigor to the inference aforesaid is garnerable from the factum of the counsel for the plaintiff while cross-examining them having omitted to put apposite suggestions to them for constraining apposite elicitations connoting the fact that the measurements/demarcations of the lands of the contesting parties which sequelled the preparation at their respective instances of DW-4/A and DW-5/A were not carried out or conducted in accordance with the provisions mandated in the HP Land Records Manual. Omission or absence on the part of the Counsel for the plaintiff to put appropriate ::: Downloaded on - 15/04/2017 18:40:59 :::HCHP ...11...
suggestion to both DW-5 and DW-7 for seeking elicitations from .
them qua the fact that the measurements/demarcations of the lands of the contesting parties were not conducted or carried out in consonance with the mandate of the H.P land Records manual of constrains an inference that the plaintiff/respondent hence acquiesce to the fact of the preparation of DW-4/A and DW-5/A rt having been preceded by a valid demarcation/measurement of the lands of the contesting parties. The effect of acquiescence hence of the plaintiff/respondent of both Exs. DW-4/A and DW-
5/A being anchored besides harbored upon a valid demarcations/measurements of the lands of the contesting parties is obviously that an aura of finality, solemnity besides conclusiveness is to be imputed to the findings and conclusions recorded in both Ex, DW-4/A and DW-5/A.
9. In addition, the testimony in the cross-examination of the plaintiff/respondent whereunder he has admitted the fact that he has acquired knowledge qua the factum of possession of the suit land during the settlement proceedings besides with a communication therein that he had filed an application before the ::: Downloaded on - 15/04/2017 18:40:59 :::HCHP ...12...
Deputy Commissioner for correction of entries of possession qua .
the suit land as also with his, in his cross-examination voicing the factum that he was previously unaware that he did not hold possession of the land allotted to him enlightenment whereof of dawned upon him only at the stage of the carrying out/conducting of measurements/demarcations of his land as rt well as of the land of the defendants/appellants, while hence constituting admissions of the plaintiff/respondent of his not holding possession of old Khasra No. 971 imputes amplifying sanctity to the pronouncements in Ex. DW-5/A and DW-4/A of the plaintiff/respondent not holding possession of old Khasra No.
971. Both the learned courts below have gone wayward besides strayed while dis-imputing probative potency to the aforesaid material pieces of evidence. Even though, for the reasons ascribed hereinabove both the aforesaid pieces of evidence marshaled legal vigor as well as tenacity and theirs having been for flimsy reasons overlooked by both the courts below has sequelled discarding of material pieces of evidence by them with the concomitant effect of theirs mis-appraising the evidence on record hence leading to ::: Downloaded on - 15/04/2017 18:40:59 :::HCHP ...13...
formation of fallacious conclusions. The effect of mis-appraisal of .
evidence by both the Courts below has sequelled a grossly fallacious inference by them of the plaintiff/respondent being in possession of old Khasra No. 971, concomitantly it has led both the of courts below to hence erroneously conclude that a decree of injunction as prayed for by the plaintiff qua old Khasra No. 971 rt was renderable in his favour. Dehors the above with the emanation in both Ex. DW-4/A and DW-5/A of old Khasra No. 971 having come to be allotted in favour of the plaintiff/respondent besides given the fact of abandonment by the predecessor-in-interest of defendants No. 1 and 2 of his plea of his having acquired title qua the suit land by adverse possession hence personificatory of an admission of the plaintiff/respondent having a legally sustainable title to old Khasra No. 971, prods this Court to, in the face of the plaintiff/respondent having in the alternative sought a decree for possession of old Khasra No. 971, hence afford in his favour a decree for possession of old Khasra No. 971.
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10. The up-shot of the above discussion is that the findings .
and conclusions recorded by the courts below on issue No. 1 stand reversed. In consequence, the appeal stands allowed and the impugned judgments and decrees are set aside. Nonetheless for of the reasons adverted to hereinabove the plaintiff/respondent is entitled to a decree on the strength of his title thereto for rt possession of old Khasra No.971, however, subject to the plaintiff/respondent within one month affixing on the plaint the court fee equivalent to the market value/land revenue of the suit land. Substantial questions of law answered accordingly. Records be sent back.
3rd August, 2015 ( Sureshwar Thakur ),
(priti) Judge.
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