Himachal Pradesh High Court
Joginder Singh & Others vs Smt.Lalita Devi on 16 May, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.534 of 2006
Judgment Reserved on: 09.05.2017
.
Date of decision: 16.05.2017
Joginder Singh & Others ....Appellants-Defendants
Versus
Smt.Lalita Devi ....Respondent-Plaintiff
Coram
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?1 Yes.
For the Appellants: Mr.Bhupender Gupta, Senior Advocate
with Mr.Ajeet Jaswal, , Advocate.
For the Respondent: Ms.Nishi Goel, Advocate.
Sandeep Sharma,J.
This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 28.08.2006, passed by learned Additional District Judge-(I), Kangra at Dharamshala, District Kangra, H.P., in Civil Appeal No.51-N/04, affirming the judgment and decree dated 27.04.2004, passed by learned Civil Judge(Junior Division), Court No.1, Nurpur, District Kangra, H.P., whereby suit for possession having been filed by the respondent-plaintiff (hereinafter referred to as the 'plaintiff') was decreed.
1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 2
2. Briefly stated facts, as emerged from the record, are that the plaintiff filed a suit for possession against the appellants-defendants (hereinafter referred to as the .
'defendants') averring therein that land comprised in Khata No.33min, Khatauni No.67, Khasra Nos.471, 476, plots 2, measuring 0-14-06 hectares, situated in Mohal Madanpur, Mauza Pandred, Tehsil Nurpur, District Kangra, H.P. (hereinafter referred to as the 'suit land') is owned by her and her daughter Deepika and defendants have no right, title or interest over the same. Plaintiff further averred in the plaint that till October, 2000, she alongwith her daughter was in cultivating possession of the suit land from the time of their ancestors. As per plaintiff, prior to her possession over the suit land, her husband; namely; Brahmo was owner in possession of the suit land, who died on 23.5.1990, and after his death she and her daughter were continued to be in possession of the suit land till October, 2000. Plaintiff further alleged in the plaint that defendants during settlement operation got themselves recorded as 'Kabiz' in the suit land in connivance with the settlement officials and taking undue advantage of this wrong entry of possession recorded in their favour, took forcible possession of the suit land on 25.10.2000 and started cultivating the same. Plaintiff further alleged that she has repeatedly asked the defendants to admit her claim in the suit land and handover ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 3 its possession, but all in vain and as such she was compelled to file instant suit for possession.
3. Defendants, by way of written statement, .
refuted the aforesaid claim of the plaintiff on the ground of maintainability, locus standi, cause of action and limitation. Defendants further claimed that they are in possession of the suit land since November, 1982 continuously till date and as such they have become owners of the suit land by way of adverse possession in the month of November, 1994 during the life time of Shri Brahmo i.e. the husband of the plaintiff. Defendants further alleged that the plaintiff and her daughter are not owners of the suit land and they have no concern, whatsoever, with it. Rather, they are in continuous and uninterrupted possession of the suit land since November, 1982 and their possession is hostile to the interest of the plaintiff and therefore, they claimed right of the ownership by way of adverse possession of the suit land. Defendants also denied the possession of the plaintiff and her daughter over the suit land till October, 2000 and also denied the possession of the husband of the plaintiff over the suit land prior to 23.8.1990, when he expired. Defendants also contended that deceased Brahmo i.e. husband of the plaintiff had seen their possession over the suit land since November, 1982 till his death i.e. 23.8.1990 and the settlement officials rightly recorded their possession over the ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 4 suit land during the course of settlement. In the aforesaid background, defendants sought dismissal of the suit having been filed by the plaintiff.
.
4. It emerged from the record that no replication was filed and learned trial Court below, on the basis of pleadings of the parties, framed the following issues for determination:-
"1. Whether the plaintiff is entitled to possession of suit land, as prayed? OPP.
2. Whether suit is not maintainable?
OPD.
3. Whether the plaintiff has no locus-
standi to file the suit? OPD.
4. Whether the plaintiff has no cause of action to file the suit? OPD
5. Whether the suit is barred by limitation? OPD
6. Whether plaintiff is estopped from filing the present suit ? OPD.
7. Whether the defendants have become owners of suit land by way of adverse possession in November, 1999, as claimed? OPD
8. Relief"
5. Subsequently, learned trial Court, on the basis of pleadings as well as evidence adduced on record by respective parties, decreed the suit of the plaintiff for possession directing therein defendants to handover the vacant possession of the suit land as described hereinabove. ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 5
6. Defendants, being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, preferred an appeal under Section 96 of the Code .
of Civil Procedure in the Court of learned Additional District Judge-(I), Kangra at Dharamshala, District Kangra, H.P. However, fact remains that appeal, having been preferred by the defendants, was dismissed, as a result of which judgment and decree passed by learned trial Court came to be upheld.
7. In r the aforesaid background, defendants approached this Court by way of instant appeal praying therein for dismissal of the suit of the plaintiff after setting aside the judgment and decree passed by both the Courts below.
8. This Court vide order dated 04.12.2006 admitted the instant appeal on the following substantial questions of law:-
"1. Whether the Courts below had wrongly ignored the entries made during settlement in favour of the appellants?
2. Whether the suit of the plaintiff was not maintainable in the absence of Ms.Deepika D/O Shri Brahma who was not made a party?"
9. Before exploring answer to the aforesaid substantial questions of law, this Court deems it fit to deal with the arguments having been made by Mr.Bhupender ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 6 Gupta, learned Senior Counsel, representing the appellants- defendants, that Court below wrongly decided the issues with regard to adverse possession as well as limitation. It .
may be noticed that plea of adverse possession as well as limitation having been taken by the defendants stood rejected by the Courts below for lack of evidence, as a result of which, plaintiff has been held to be owner in possession of the suit land on the basis of documentary evidence led on record by respective parties.
10. Mr.Bhupender Gupta, learned Senior Counsel, appearing for the appellants-defendants, vehemently argued that suit having been filed by the plaintiff is/was not maintainable because Ms.Deepika daughter of Shri Brahma, was not impleaded as a party. Mr.Gupta, while inviting the attention of this Court to the plaint having been filed by the plaintiff; namely; Smt.Lalita Devi, contended that it is the case of the plaintiff that she alongwith her daughter is owner and was in possession of the suit land from the time of their forefathers and as such Ms.Deepika was a necessary party to be impleaded for the adjudication of the case.
Substantial Question No.2:
11. This Court, with a view to explore answer to the substantial question of law No.2 as well as to ascertain the genuineness and correctness of the aforesaid submissions having been made by Mr.Gupta, learned Senior Counsel ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 7 representing the appellants-defendants, carefully perused the pleadings adduced on record by the respective parties. True, it is, that the plaintiff; namely; Smt.Lalita Devi, in her .
plaint claimed that suit land is owned by her and her daughter Ms.Deepika. She has also stated that she alongwith her daughter is owner in possession of the suit land from the time of their forefathers and they have been cultivating the same till October, 2000 and have been taking all the benefits of the suit land. But, interestingly, perusal of written statement having been filed by appellants-defendants nowhere suggests that objection, if any, with regard to non- joinder of necessary parties was ever raised by the defendants before the trial Court. Careful perusal of written statement filed by the defendants suggests that defendants raised as many as six preliminary objections, while refuting the claim of the plaintiff, but there is no objection, if any, with regard to the non-impleadment of Ms.Deepika as a party in the case and as such, this Court sees substantial force in the arguments having been made by Ms.Nishi Goel, learned counsel representing the respondent-plaintiff, that no plea with regard to non- impleadment of Ms.Deepika can be allowed to be raised at this stage.
12. Ms.Nishi Goel, learned counsel appearing for the respondent-plaintiff, supported the judgments passed by ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 8 both the Courts below and vehemently argued that no interference, whatsoever, is warranted in the present facts and circumstances of the case, especially in view of the fact .
that both the Courts below have meticulously dealt with each and every aspect of the matter. She also urged that scope of interference by this Court is very limited, especially when two Courts below have recorded concurrent findings on the facts as well as on law. In this regard, to substantiate her aforesaid plea, she placed reliance upon the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264.
13. To controvert the aforesaid submissions having been made by Ms.Nishi Goel, learned Senior Counsel representing the appellants-defendants, Mr.Gupta, while inviting the attention of this Court to the written statement having been filed by the appellants-defendants, vehemently argued that specific objection with regard to maintainability was raised by the defendants and as such Court below ought to have decided issue No.2 i.e. with regard to maintainability in favour of defendants, especially in view of non- impleadment of Ms.Deepika, who was necessary party for the adjudication of the case.
14. This Court, after having carefully perused the pleadings, especially, written statement having been filed by the defendants, finds no force in the aforesaid submissions ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 9 of Mr.Gupta because there is no specific objection, if any, with regard to the non-impleadment of Ms.Deepika daughter of plaintiff, rather, defendants, while opposing the case of the .
plaintiff as projected in the plaint, claimed themselves to be in hostile, continuous and un-interrupted possession of the suit land till 1982 and claimed themselves to have become owners of the same by way of adverse possession in the month of 1994 i.e. during the life time of Shri Brahmo, predecessor-in-interest of the plaintiff.
15. This Court, after having carefully perused issue No.2, framed by trial Court below, is not persuaded to accept the aforesaid submissions having been made by Mr.Gupta, solely for the reason that onus to prove the same was upon appellants-defendants, but evidence led on record by the defendants nowhere suggests that defendants were able to point out that in what manner suit of the plaintiff is not maintainable. Rather, plaintiff, by way of leading cogent and convincing evidence, successfully proved on record that the defendants are causing interference in the suit land owned and possessed by her and her daughter and as such suit having been filed by her was rightly held to be maintainable. Otherwise also, no prejudice, whatsoever, has been caused to the defendants for non-impleadment of Deepika, who happened to be daughter of plaintiff.
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16. At this stage, Mr.Gupta, contended that decree passed in favour of plaintiff may not be executable because suit of the plaintiff has been decreed, whereas, suit land has .
devolved upon plaintiff as well as her daughter, after the death of Brahmo. The aforesaid contention of Mr.Gupta has no merit because suit of the plaintiff has been decreed on the basis of averments contained in plaint, where she herself stated that she alongwith her daughter Ms.Deepika is the owner of the suit land after the death of her husband; meaning thereby that the plaintiff as well as her daughter Ms.Deepika both shall be entitled for possession of the suit land after passing of judgment and decree by learned trial Court. Substantial question of law No.2 is answered accordingly.
Substantial Question No.1:
17. Plaintiff, with a view to prove her case, as projected in the plaint, placed on record copy of Jamabandi for the year 1994-95 Ex.P-1, Missalhaquiat for the year 1982-83 Ex.P-2 and Jamabandi for the year 1972-73 Ex.P-3. Whereas, defendants placed on record documents Ex.D-1, copy of Jamabandi for the year 1999-2000, Ex.D-2 copy of Missalhaquiat for the year 1982-83 and Ex.D-3, copy of Jamabandi for the year 1977-78. Ex.P-3 clearly suggests that husband of the plaintiff was recorded as owner in possession of the suit land. Similarly, perusal of Ex.P-2 i.e. ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 11 Missalhaquiat for the year 1982-83 suggests that name of husband of the plaintiff was recorded as owner qua the suit land, whereas names of defendants came to be recorded in .
the column of possession. It also emerged from Ex.P-1 i.e. Jamabandi for the year 1994-95 that name of the plaintiff alongwith her daughter came to be recorded in the column of ownership, whereas names of defendants were recorded in the column of possession qua suit land. Though perusal of Ex.P-1, Ex.P-2 i.e. Jamabandi for the year 1994-95 and Missalhaquiat for the year 1982-83 suggests that names of the defendants came to be recorded in the column of possession, but there is no order or remark, from where it could be inferred that under what capacity names of the defendants came to be recorded in the column of possession of the suit land. Defendants in their written statement have stated that their names came to be recorded in the column of possession qua the suit land during settlement, but this Court was unable to lay its hands to any document placed on record by defendants suggestive of the fact that entry was recorded during settlement operation and as such this Court sees no illegality and infirmity in the findings returned by the Courts below that entry of possession in favour of the defendants in the Jamabandies for the years 1982-83 and 1994-95 are wrong, illegal and without any basis. All the aforesaid Jamabandies, as have been discussed above, Ex.P- ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 12 1, Ex.P-2 and Ex.P-3, clearly suggest that the name of plaintiff has been recorded as owner qua the suit land.
18. PW-1, Smt.Lalita Devi, categorically stated .
before the Court below that she is owner of the suit land and earlier her late husband was in possession of the same and after his demise she has been cultivating the suit land. It also comes in her statement that defendants came in illegal possession of the suit land. She also stated that despite several requests for possession, having been made by her to the defendants, she failed to deliver the same. True, it is, that in her statement she feigned ignorance regarding settlement, if any, took place during life time of her husband. Similarly, she stated that no application for correction of revenue entries was moved by her husband and even she did not move such application. But, if cross-examination, conducted on this witness, is seen carefully, no suggestion, whatsoever, was put to her that she and her husband were apprised by the defendants with regard to change in entries in favour of the defendants during settlement. Similarly, there is no suggestion put to the plaintiff that she or her husband were associated by settlement officials during settlement proceedings, where entries came to be recorded in the names of defendants on the basis of their possession over the suit land. There is nothing in the pleadings adduced on record by the defendants that they had ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 13 dispossessed the plaintiff or her husband from the suit land because admittedly as per case set up by the defendants, husband of the plaintiff was in possession of the suit land till .
1982-83. If, at all, the version put forth by the defendants is accepted to be correct that they came to be recorded in possession of the suit land during settlement proceedings held in 1982-83, defendants ought to have led evidence on record suggestive of the fact that after having been recorded in possession of the suit land, they dispossessed the plaintiff, whor was admittedly recorded as owner in possession of the suit land prior to entry made in favour of defendants in the year 1982-83. Since the entry, as recorded in the Missalhaquiat for the year 1982-83, Ex.P3, was without any basis and moreover husband of the plaintiff continued to be in possession of the suit land on the strength of revenue entry existing in his favour, as emerged from Ex.P3 Jamabandi for the year 1972-73, there was no occasion, whatsoever, for the plaintiff or her husband to move an application for correction of revenue record.
19. Defendant No.1 Pritam Chand, while deposing before Court below, claimed that they had taken possession of the suit land in the year 1982, which ultimately had ripened into ownership during November, 1994 by adverse possession. He further stated that neither the plaintiff nor her husband made any efforts to dispossess them. He also ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 14 stated before the Court below that settlement official visited the village during the year 1982-83, but, admittedly, there is no mention, if any, with regard to order, if any, passed by .
settlement officer for change of revenue entry on the basis of their possession. Similarly, this Court was unable to find any mention/remark with regard to dispossession of the plaintiff or her husband from the suit land after recording of entry of possession in the names of defendants. This Court carefully perused the written statement, but there is no averment with regard to dispossession of the plaintiff or her husband from the suit land, who, admittedly, was recorded owner in possession of the suit land prior to entry made in favour of defendants in the year 1982-83, Ex.P2.
20. Similarly, neither there is any averment made in the written statement that husband of the plaintiff was associated by settlement officials during settlement proceedings allegedly took place in the year 1982-83 nor defendants specifically stated before the Court below that settlement officials had associated the husband of the plaintiff or plaintiff while recording entry of possession in their favour. Other witnesses adduced on record by the defendants have not supported the case of the defendants. DW-2 and DW-3 have also nowhere stated with regard to dispossession of the plaintiff from the suit land after 1982- ::: Downloaded on - 19/05/2017 23:59:38 :::HCHP 15 83, i.e. when the names of defendants came to be recorded in the column of possession.
21. Apart from above, there is nothing in the .
statements of all the defendants witnesses from where it could be inferred that husband of the plaintiff or thereafter plaintiff was dispossessed by the defendants by doing some overt act. Hence, this Court, after having carefully perused the evidence led on record by the respective parties, has no hesitation to conclude that the plaintiff successfully proved on record that she and her daughter are owners of the suit land and defendants procured false and frivolous entry in their favour during the settlement and on the strength thereof wrongly dispossessed the plaintiff during October, 2000. Hence, this Court is not in a position to accept the submissions having been made by learned counsel that Courts below had wrongly ignored the entries made during the settlement in favour of the appellants, rather, this Court, after having carefully perused the record, is of the view that both the Courts below meticulously dealt with each and every aspect of the matter and rightly came to conclusion that defendants were not able to prove on record that on what basis entry of possession came to be recorded in their favour in the year 1982-83. Substantial question is answered accordingly.
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22. This Court is fully satisfied that both the Courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, .
whatsoever, in the present matter, since both the Courts below have returned concurrent findings, which otherwise appear to be based upon proper appreciation of evidence, this Court has very limited jurisdiction/scope to interfere in the matter. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by Hon'ble Apex Court in Laxmidevamma's case supra, wherein the Court 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 - 19/05/2017 23:59:38 :::HCHP 17
23. In the facts and circumstances discussed above, this Court is of the view that findings returned by the trial Court below, which were further upheld by the first appellate .
Court, do not warrant any interference of this Court as finding given on the issues framed by the trial Court below as well as specifically taken up by this Court to reach the root of the controversy appears to be based on correct appreciation of oral as well as documentary evidence.
24. Hence, in view of detailed discussion made hereinabove, this Court sees no illegality and infirmity in the judgments passed by both the Courts below. The judgment and decree passed by both the Courts below are upheld. The present appeal fails and is dismissed, accordingly.
25. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.
May 16, 2017 (Sandeep Sharma)
(aks) Judge
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