Himachal Pradesh High Court
Balbir Singh & Another vs Qutubdeen & Another on 27 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 235 of 2020 Date of Decision: 16thSeptember,2023 .
Balbir Singh & another ....Appellants Versus Qutubdeen & another of ....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt Whether approved for reporting? Yes For the Appellants : Mr. Karan Singh Kanwar, Advocate.
For the Respondents : Mr. Ashok K. Tyagi, Advocate.
Rakesh Kainthla,Judge (Oral).
The present appeal is directed against the judgment and decree dated 29.11.20219, passed by the learned Additional District Judge, Sirmour, District at Nahan, Himachal Pradesh, vide which, the appeal filed by the present appellants (defendants before the learned Trial Court) was dismissed.(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
1. Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 2
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit for seeking .
possession of the land comprised in Khata Khatauni No. 86/147, Khasra No.116 min (116/1) measuring 1-1 bighas situated in mauza Sainwala Mubarkpur, Tehsil Paonta Sahib (hereinafter to be referred as the suit land). It was pleaded that the plaintiffs are of owners of the suit land. The defendants entered into the suit land and started claiming it to be owned by them in lieu of the rt exchange. They started digging the suit land to raise construction.
The plaintiffs objected but the defendants did not stop. They disclosed that an entry of exchange regarding the suit land was recorded in their favour on 23.04.1999. The plaintiff obtained revenue papers and discovered that an entry of exchange was recorded in them. The plaintiff represented to the Tehsildar that no such exchange had taken place and the mutation of the exchange was cancelled on 03.05.2006. Defendants occupied the suit land and raised construction over it despite the objections of the plaintiffs. The defendants were requested to hand over the possession but in vain. Hence, the suit was filed to seek the relief mentioned above.
::: Downloaded on - 28/09/2023 20:35:06 :::CIS 33. The suit was opposed by the defendants by filing a written statement taking preliminary objections regarding lack of .
locus standi, jurisdiction, and cause of action, the suit having not been properly valued for the purpose of Court fees and the plaintiffs being estopped by their act, conduct and acquiescence to file the present suit. The contents of the plaint were denied on of merits. It was asserted that the plaintiffs have no right, title or interest over the suit land. The defendants are owners in rt possession of the suit land. The defendants constructed a house by investing ₹11,98, 916/- openly and to the knowledge of the plaintiffs. The plaintiffs never objected to the construction and now they are estopped to file the present suit. The construction was made in the year 1998 and not 2006 as asserted in the plaint.
The suit land was in possession of Raja, the defendants' father, as a non-occupancy tenant along with other lands. He acquired proprietary rights of other lands but could not acquire the same in respect of the suit land because of Protection under the H.P. Abolition of Big Landed Estates and Land Reforms Act and the H.P. Tenancy and Land Reforms Act. Raja Ram and the defendants are in possession of the suit land measuring 1-1 bigha. It was recorded as 1 bigha by the Patwari based on an estimate. Plaintiff ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 4 No. 1 and his brother Chura were non-occupancy tenants of Khasra No. 116, 129, 118 and 130 to the extent of 14-1 bighas. The .
plaintiff no.1 and Chura were recorded in possession of 2-2 bigha land bearing Khasra No. 116, whereas, they were/are in possession to the extent of 2-1 bigha and Raja, the father of the defendant was in possession of 1-1 bighas land bearing Khasra of No. 116. The Revenue entries to the contrary are wrong and illegal.
The proposal of the exchange could not be materialized. The rt mutation was contrary to the facts and the proposed mutation was rejected. The defendants became the owners after the lapse of the protection accorded under the Acts. Therefore, it was prayed that the suit be dismissed.
4. A replication denying the contents of the written statement and affirming those of the plaint was filed.
5. Learned Trial Court framed the following issues on 04.11.2011:
1. Whether the plaintiffs are owners of the suit land and are entitled for the decree of possession on the basis of title, as alleged?
OPP ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 5
2. Whether the plaintiffs have no locus standi to file the present suit? OPD Whether the plaintiffs are estopped by their .
3.act, conduct and acquiescence? OPD
4. Whether this court has no pecuniary jurisdiction to entertain and try the present suit? OPD
5. Whether the plaintiffs have no cause of of action? OPD.
6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD rt
7. Whether the revenue entries in favour of the plaintiffs are wrong, collusive and fraudulent?OPD
8. Relief.
6. The parties were called upon to produce the evidence and plaintiff no.2 Salamat Ali examined himself (PW-1) and Dil Mohamad (PW-2). The defendants examined Sher Singh (DW-1), Randhir Singh (DW-2), Hem Raj (DW-3) and Amit Gautam (DW-
4).
7. The learned Trial Court held that there was no order of any competent authority to change the revenue entries in favour of the predecessor of the defendants. Since the change was unexplained; therefore, the presumption of correctness attached ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 6 to the revenue entries stood rebutted. The version of the plaintiffs that construction was raised in the year 2006 was more probable .
than the version of the defendant. The plea that there was acquiescence on the part of the plaintiffs to the construction was not established because Salamat Ali was ill and in financial debt at the time of the construction. The learned Trial Court answered of issue no. 1 in the affirmative, the remaining issues no. 2 to 7 in the negative and decreed the suit of the plaintiffs.
8. rt Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendant filed an appeal, which was decided by the learned Additional District Judge, Sirmour at Nahan. An application for leading evidence was also filed by the appellants/defendants, which was dismissed by the learned First Appellate Court after holding that the applicants had failed to furnish any plausible explanation regarding the non-production of the documents before the learned Trial Court. The documents were not relevant for the adjudication of the dispute pending before the Court. There was no explanation for the change in the entry recorded in favour of the predecessor-in-interest of the defendants and the presumption of the correctness attached to ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 7 the Jamabandi stood rebutted. The defendants did not claim any adverse possession and only claimed that the house was .
constructed in the year 1997-98. This version was falsified by the mason produced by them. There was no infirmity in the findings recorded by the learned Trial Court.Hence, the appeal was dismissed.
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9. Feeling aggrieved and dissatisfied with the judgments and decrees passed by the learned Courts below, the present rt appeal has been filed asserting that the learned Courts below erred in decreeing the suit. The suit land was in possession of the predecessor-in-interest of the defendants as a non-occupancy tenant along with other land. He acquired the proprietary rights over the other land but could not acquire the proprietary rights over the suit land. The learned First Appellate Court relied upon the irrelevant facts to base its judgment. The total market value of the suit land is more than ₹ 32 Lakhs and the learned Trial Court had no jurisdiction to try the suit. The statements of witnesses were not properly appreciated. The electricity connection was old and this fact was ignored. No objection was raised to the construction being raised by the defendants. The defendants ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 8 made a huge investment in raising construction to the knowledge of the plaintiffs. Hence, the plaintiffs are estopped by their acts, .
conduct and acquiescence from filing the present suit. The learned First Appellate Court erred in dismissing the application under Order 41 Rule 27 CPC. The documents sought to be produced were material and would have enabled the Court to pronounce the of judgment. No proof of ownership was produced by the plaintiffs.
Therefore, it was prayed that the present appeal be allowed and rt the judgments and decrees passed by the learned Courts below be set aside.
10. The following substantial questions of law are proposed with the memorandum of appeal: -
1. Whether the judgment and decree of the learned Additional District Judge is based on misconstruction, misinterpretation and misreading of pleadings, oral and documentary evidence on record and contrary to evidence on record and is thus perverse?
2. Whether the learned Additional District Judge has misconstrued, misinterpreted and misread documents as well as statements of PWs and DWs?
3. Whether the learned Trial Court did not have the jurisdiction to try the suit as the suit had been ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 9 undervalued by the plaintiffs and in view of the specific objection taken by the defendants?
4. Whether the learned Trial Court should have .
appointed a local commissioner for ascertaining the true value of the property for the purpose of court fee and jurisdiction since the jurisdiction of the learned Trial Court was disputed on account of the fact that the market value of the property is very high and moreover since the defendants had placed material on record which elucidates of that the value of the property is much higher than what has been pleaded in the plaint?
5. Whether the learned Court below has erred in rt rejecting the application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for placing on record and proving documents; the documents being material documents?
6. Whether the learned Additional District Judge has erred in not appreciating that the suit was liable to be dismissed on the grounds of estoppel and acquiescence as the plaintiffs have not produced any evidence that they resisted to the construction being carried out by the defendants which construction was carried out by the defendants by spending a huge amount, openly and to the knowledge of the plaintiffs?
11. I have heard Mr. Karan Singh Kanwar, learned Counsel for the appellants and Mr. Ashok Kumar Tyagi, learned counsel for the respondents.
12. Mr. Karan Singh Kanwar, learned counsel for the appellants submitted that the learned Courts below erred in ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 10 decreeing the suit. It was duly proved on record that the construction was raised in the year 1996 openly to the knowledge .
of the plaintiffs and the plaintiffs did not take any action to stop the construction or take forcible possession; therefore, they are estopped from filing the suit. The learned First Appellate Court erred in dismissing the application under Order 41 Rule 27 of the of Code of Civil Procedure without a speaking order. The contents of the application and the relevance of the documents were not rt discussed; therefore, it was prayed that the appeal be admitted on the proposed substantial questions of law.
13. Mr. Ashok Kumar Tyagi, learned counsel for the respondents supported the judgments and decrees passed by the learned Courts below and submitted that no interference is required with the same. The present appeal does not disclose any substantial question of law; hence, he prayed that the appeal be dismissed.
14. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
::: Downloaded on - 28/09/2023 20:35:06 :::CIS 1115. The application for leading additional evidence filed before the learned Trial Court reproduces the pleading, the .
contentions raised in the memorandum of appeal, statements of the parties and the documents produced before the learned Trial Court. It mentions in para 7 that the documents were left inadvertently and they are necessary for the adjudication of the of dispute. It was mentioned in the final paragraph that evidence could not be produced due to inadvertence, and the lack of rt knowledge of such documents. Their relevance was found by the counsel engaged in the appeal. The documents are required to be produced for adjudication of the dispute between the parties. The learned First Appellate Court had specially mentioned in para 21 of the judgment that no plausible explanation was furnished for the non-production of the documents in the Trial Court for 6 years and the relevance of the documents was not established.
Therefore, it cannot be said that the learned First Appellate Court had not given the reasons. The reasons were given. The submission that the Court was required to discuss the relevance of each document and only then it can be said that the reasons were given is not acceptable. Order 41 Rule 27, clearly provides that before a party can be permitted to lead evidence, it has to show ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 12 why he could not produce the evidence before the learned Trial Court despite the exercise of due diligence. As already mentioned, .
the application mentions in advertence, lack of knowledge and discovery by the counsel engaged before the learned First Appellate court. All these reasons are not due diligence. It was laid down by the Hon'ble Supreme Court in Haryana State Industrial of Development Corporation Versus M/S Cork Manufacturing Co (2007) 8 SCC 120 that inadvertence to produce the evidence or improper rt legal advice is no reason for admitting the additional evidence. It was observed:
"18. In any view of the matter, Order 41 Rule 27 of the CPC also does not empower an appellate court to accept additional evidence on the ground that such evidence could not be produced or filed either before the trial court or before the first appellate court due to inadvertence or lack of proper legal advice. Mr. Mohan, learned Additional Solicitor General however sought to argue that the pleadings made in the application for acceptance of additional evidence would come within the meaning of "substantial cause" under Order 41 Rule 27 (1)(b) of the CPC which would require the appellate court to accept the legal notice in order to pronounce its judgment. We are unable to accept this submission of Mr Mohan. In our view, lack of proper legal advice or inadvertence to produce the legal notice in evidence is not a ground to hold that there was substantial cause for acceptance of the additional evidence."::: Downloaded on - 28/09/2023 20:35:06 :::CIS 13
16. This position was reiterated in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362: 2012 SCC OnLine SC .
528, wherein it was observed at page 168:-
"40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this of Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal."
17. Hence, it cannot be said that the reasons furnished by rt the learned First Appellate Court for dismissing the application that the appellants failed to furnish any plausible explanation are without any material. It was a valid reason duly supported by the law as well as the record. Hence the grievance that the application was dismissed by a non-speaking order is not justified.
18. The learned Trial Court held that a copy of Jamabandi (Ex.PX) for the years 1953-54 shows that Khasra No. 183 min was in the possession of Chuhra and Nanku as non-occupancy tenants. The Misal Hakiyat (PY), mentions that old Khasra No. 183 min was assigned new Khasra No. 116 measuring 3-2 bighas. It was recorded in the possession of Chuhra and Nanku as non-
occupancy tenants. In the same document, 1-1 bighas of land ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 14 comprised in old field no. 183 min, new no.118 was recorded in the non-occupancy tenancy of Raja. It was held that there was .
nothing on record to suggest how the revenue entry in the Misal Hakiyat was changed in the next Jamabandi. No order of any competent authority was placed to suggest that this change was effected lawfully. Therefore, the presumption attached to the of revenue record stood rebutted. These findings were upheld by the learned First Appellate Court. There is nothing on record to show rt the change in the revenue record. None was pointed out during arguments to this Court, which would justify the change made in the revenue record. The copy of the Jamabandi does not mention anything in the column of remarks as to how this change was made. Thus, the learned Courts below were justified in holding that the change was unauthorized. Reliance was placed on behalf of respondents on the judgment of the Hon'ble Supreme Court in Partap Singh (dead) through legal representatives and others vs. Shiv Ram (dead) through legal representatives 2020 (11) SCC 242, wherein the Hon'ble Apex Court was pleased to hold that that presumption of truth attached to the revenue record will be rebutted if the entry was made fraudulently or surreptitiously or ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 15 without following the proper procedure. It was observed at page 252:-
.
25. The presumption of truth attached to the revenue record can be rebutted if such entry was made fraudulently or surreptitiously (Vishwa Vijay Bharati case [Vishwa Vijay Bharati v. Fakhrul Hassan, (1976) 3 SCC 642] ) or where such entry has not been made by following the prescribed procedure (Bhimappa Channappa Kapali v. Bhimappa Satyappa Kamagouda [Bhimappa Channappa Kapali v.
of Bhimappa Satyappa Kamagouda, (2012) 13 SCC 759 : (2014) 5 SCC (Civ) 419] ). Even in Guru Amarjit Singh [Guru Amarjit Singh v. Rattan Chand, (1993) 4 SCC 349: AIR 1994 SC 227], where thirty years old lease deed was produced, this Court rt had not accepted the proof of the relationship between the landowner and tenant in absence of receipt of payment of rent.
26. Therefore, we find that the presumption of truth attached to the record of rights can be rebutted only if there is fraud in the entry or the entry was surreptitiously made or the prescribed procedure was not followed. It will not be proper to rely on the oral evidence to rebut the statutory presumption as the credibility of oral evidence vis-à-vis documentary evidence is at a much weaker level."
19. Thus, there is no infirmity in the findings recorded by the learned Trial Court that the revenue entries could not be relied upon because of the unauthorized change in the revenue record.
20. It was submitted that the defendant raised construction openly and peacefully to the knowledge of the plaintiffs. Therefore, the plaintiffs are estopped to file the present ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 16 suit by their acts and conduct. Reliance was placed upon judgments of the Hon'ble Supreme Court in B.L. Sreedhar and .
others vs. K.M. Munireddy (Dead) and others AIR 2003 Supreme Court 578 and Chairman, State Bank of India & anothervs.
M.J.Jamesh 2022 (2) SCC 301.
21. This submission is not acceptable. There is no proof of of any representation made by the plaintiffs to the defendants which is necessary to constitute estoppel. It was laid down by the rt Hon'ble Madras High Court in M. Ramalingam vs N. Thangavelu (1997) 2 MLJ 41 that in the absence of the representation, the plea of the defendant regarding estoppel was not acceptable. It was observed:
"18. Before putting up construction, he did not make any attempt to measure the same. He was under the belief that it was his property. Naturally, there cannot be any question of acting on the representation of the plaintiff and the same has caused detriment to him.
19. What was the encouragement given by the plaintiff is not stated. The defendant did not have any mistake about his legal rights, nor has he a case that on the basis of the mistake on his part, he has spent money. The defendant has no case that before putting up the construction, the plaintiff was also made known about his legal right, and the limits of his property. In what way the plaintiff encouraged the putting up of the construction is also not explained. Mere silence by itself will not amount to representation unless a duty is cast on the plaintiff to speak about the ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 17 limits. If so, the plaintiff must also be made aware of the limits of the property. The case put forward by the defendant himself is that pursuant to the partition decree, the plaintiff has not taken possession and, therefore, the .
plaintiff is not entitled to recover the property. That means the limits of the property were not clear and made known to the plaintiff. It is only on the basis of the title, the plaintiff claims his right. When the defendant comes forward before the court with a case that the plaintiff should not exercise his legal right, it is for him to explain why he should be denied that right.
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20. Further, the suit is not for mandatory injunction alone. The suit is one for declaration of title and recovery of possession. In that case, it is not discretionary relief that is granted. There is a great difference between a suit for rt mandatory injunction and a suit for declaration of title and recovery of possession, with consequential relief of mandatory injunction."
22. It was laid down by the Punjab & Haryana High Court in Mohinder Pal Versus Omwati 2014 (174) Punjab Law Reporter 447 that in case of trespass on the land of others, there can be no question of acquiescence.It was observed:-
"4. Another principle, which was invoked while allowing the appeal filed by the plaintiff, which is the subject of an appeal in RSA no. 2920 of 1984 is that the plaintiff was guilty of acquiescence. The principle of acquiescence is invoked in cases where relief of mandatory injunction is sought against a defendant to do an act in his (defendant's) own property, which invades the plaintiff's right. A typical illustration could be of a construction made by the defendant in his own property and over which, the plaintiff has right of way. If the plaintiff fetters his own exercise of the right by allowing the defendant to do an act, he would be barred by acquiescence in such a case. The case has been dealt with by the Supreme Court in Krothapalli ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 18 Satyanarayana v. Koganti Ramaiah and others, 1984 (2) SCC 439 which examines the issue of acquiescence of a party, who had allowed her own right of way to be trampled by the defendant's construction. The situation would be different .
where a right to immovable property of the plaintiff is sought to be invaded by the defendant trespassing into the property and putting up construction. If the suit is filed for recovery of possession and claims as an ancillary relief, a mandatory injunction for removal, then acquiescence cannot come in the way. The plaintiff shall be entitled to recover possession of the whole property. The situation, of however, would be different if the suit is not for recovery of possession, but the suit is only for mandatory injunction. A mandatory injunction by itself is in the genre of equitable relief, which is discretionary. The Court may exercise its rt discretion not to grant the said relief and merely grant relief of compensation. This distinction is brought out in Nelson's Law of Injunction, 7th edition, Volume-I, pages 220 to
223. The text paraphrases two judgments, one in Evin Shauk Wa v. U. Pa Nyun, 5 ILR(Rang) 404 and another in the judgment of this Court in Municipal Committee, Nakodar v. Sadha Ram,1957 ILR(P&H) 638. If in a case where the plaintiff does not ask for possession but asks only for mandatory injunction directing the defendant to demolish the construction, the Court may well take into account the factor that so long as the plaintiff does not ask for possession of his property, he may lose his right by acquiescence. Where an encroacher puts up construction on another's land not being entitled to the superstructure, the plaintiff can be given full relief by a simple decree for possession, which would mean directing demolition of the building, even without a prayer for any mandatory injunction against the defendant. If there is also a relief of mandatory injunction in such a suit for possession, it is merely for the purpose of giving an opportunity to the trespasser to remove the superstructure put up by him and to avail himself an opportunity to mitigate his own loss. In the decision of this Court in Municipal Committee, ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 19 Nakodar, the suit was for a declaration of title in which a prayer for an injunction had been sought as auxiliary to the relief of declaration. The Court said that it was not a suit to which Section 54 of the old Specific Relief Act would apply.
.
This corresponds to Section 38 of the Specific Relief Act, 1963. The learned Judge pointed out that such was not a case in which the Court is free to uphold the title and yet in the exercise of its discretion refuse to grant the relief of injunction and the relief of injunction cannot be claimed as a substantive relief independently of the declaration sought.
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5. Nelson's Law of Injunction, at page 220, para 30, sets out the law thus:
...The fact that the property involved is of small value or is of no practical use to the plaintiff is wholly rt irrelevant to the grant of relief to the plaintiff. Equally irrelevant is any consideration as to whether the defendant would be inconvenienced or subjected to any hardship by the grant of a decree of ejectment against him. It is a simple case of trespass or encroachment on the plaintiff's property and the defendant is entitled to no consideration while granting relief to the plaintiff with reference to the wrongs committed by the defendant. In such a case, if the defendant instead of simply occupying the land after his encroachment and trespass puts upon a construction, can his position be in any way better? If it is to be held that simply because the defendant, in addition to committing trespasser encroachment, has put up construction on the land and because of such construction, there is a discretion left in the Court either to grant a decree for possession after directing the defendant to demolish the construction or to award damages instead of directing such demolition, that will be placing such a person in a better position for having aggravated his wrong by putting up a construction. In such a situation there can be no equitable consideration in favour of the defendant ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 20 and as a matter of fact, all notions of equity and justice will be opposed to any such contention... IV. Relief of recovery cannot be denied if the title is established but the relief of mandatory injunction is always .
discretionary.
6. In the first category of the suit, where the plaintiff's suit for possession was complaining of trespass committed by the defendant, it can never be stated that the plaintiff could be adequately compensated by only relief of damages in the second category of cases where merely the relief of mandatory injunction is asked, the discretion is available of for the Court to grant such relief or not. In the former case, acquiescence is not relevant to deny the relief of recovery of possession. It may be applied only for providing compensation for a defendant, who has suffered damage rt from putting up construction. In the latter case, acquiescence will disable a person from securing equitable relief. In such an event, the Court will be competent to substitute the relief for damages against the defendant in favour of the plaintiff as compensation for the right lost.
7. The principle, which I have elicited has a statutory basis as well. In a suit for recovery of possession based on the title, Article 65 of the Limitation Act provides for a period of 12 years from the time when the defendant's possession becomes adverse. If the defendant's construction has come about by way of trespass, a suit for declaration and recovery of vacant possession cannot be defeated by the theory of acquiescence. The defendant shall not be without remedy.
Section 51 of the Transfer of Property Act allows for compensation to be claimed by a person, who puts up construction bona fide believing the property belonged to him. The suit for recovery of possession that is decreed can apply Section 51 and secure to a defendant against whom possession is sought to compensate the defendant for the construction put up by him. However, in a mere suit for mandatory injunction, there is no provision for limitation but it shall be granted only in the manner contemplated ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 21 under Section 39 of the Specific Relief Act if such relief were to be on a stand-alone basis. This qualification becomes essential, for, this is not a mere suit for mandatory injunction. The plaintiff has sought recovery of possession .
through the court as an alternative prayer in both suits.
23. Similarly, it was laid down by this Court in K.S. Mehta and another vs State of H.P. and others 2007(2) SLC 204 that the trespasser of the land cannot claim justification of the act by mere of silence or inaction of the true owner unless the grant of permission is established. It was observed:
rt "9. The learned appellate Court is wrong in observing that since the plaintiff did not approach the Court within a particular period or immediately after the debris was being dumped on the ground, it is a fact which would be used against them. Having committed a tortuous act and continued to do so, unless acquiescence on the part of the plaintiff can be inferred from the evidence on record, the finding of the learned appellate Court is not in accordance with law. A trespasser on another persons property cannot claim justification of the act by mere silence or inaction on the part of the owner of the land unless it can be shown that the only conclusion of such silence is a grant of permission for the commission of the act."
24. In the present case, no evidence was led regarding any express or implied representation made by the plaintiffs; hence, the principle of acquiescence does not apply to the present case.
25. It was submitted that the construction was raised in the year 1998 and this fact was proved by the testimony of Sher ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 22 Singh (DW-1). This is not acceptable. Both the learned Courts beloed relied upon the statement of Hem Raj (DW-3) to conclude .
that the construction was raised somewhere in the year 2006.
Hemraj stated in his cross-examination that he had raised construction about 8-9 years ago. He made this statement in the year 2014;therefore, the learned Courts below rightly held that the of construction was raised somewhere in the year 2006.
26. In any case, the year of construction is irrelevant in the rt present case. Learned Courts below concurrently found that the plaintiffs are owners of the suit land. The plaintiffs can always file a suit based on the title and such a suit cannot be defeated by limitation without taking the plea of adverse possession.
27. It was laid down by this Court in Tilak Raj vs. Bhagat Ram & Another 1997 (1) Sim. LC 281 that in a suit based on the title where no plea of adverse possession had been raised could not be barred by limitation on the ground that it was filed after more than 12 years from the date of dispossession. It was observed:-
"10. The present suit is for possession on the basis of title. Article 63, Limitation Act, 1963, governs the present case. It provides that for possession of immovable property or any interest therein based on the title, the limitation of twelve years begins to run ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 23 from the date of the defendant's interest becomes adverse to the plaintiff
11. It is well settled that adverse possession means a .
hostile assertion, that is, a possession which is expressly or impliedly in denial of the title of the true owner.
12. It is also well settled that a person who bases his title on adverse possession must plead and prove by clear and unequivocal evidence, that is, possession was hostile to the real owner and amounted to a denial of of his title to the property claimed. In deciding whether the acts of the defendant constitute adverse possession, regard has to be had to the animus of such rt defendant which has to be ascertained from the facts and circumstances of each case.
13. It is equally well settled that mere possession for however long a period is not enough to claim title inasmuch as the possession has to be adverse.
14. In Liaq Mohammad v D. D. A. and others, AIR 1994 NOC (Delhi) 35, it has been held that a suit for possession based on title, where a plea of adverse possession has been raised, would not be barred by limitation on the ground that it has been filed after the expiry of twelve years from the date of dispossession.
15. Equally, it can be said that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time-barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession."
28. Similarly, it was held in Indira vs. Arumugam & Another (1998) 1 SCC 614 that in a suit based on the title, when the title has ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 24 been established, the plaintiff cannot be non-suited on the ground of limitation unless the plea of adverse possession is .
established. It was observed:-
"4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on the title had to prove not only the of title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:
rt Description of Period of Time from which the suit:- For limitation:- period begins to possession of Twelve run: - When the immovable years possession of the property or any defendant becomes interest therein based on the title adverse to the plaintiff.
5. It is, therefore, obvious that when the suit is based on the title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited.
Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the Second Appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the learned Judge for disposing of the Second Appeal, this appeal is allowed."
::: Downloaded on - 28/09/2023 20:35:06 :::CIS 2529. Similar is the judgment of this Court in Shishi Ram Vs. Megh Chand AIR 2013 HP 65, wherein it was held:-
.
"12. It is settled law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means hostile possession which is expressly or impliedly in denial of the title of the true owner, and in order to constitute adverse possession, the possession/ roved must be adequate in continuity, publicity and in extent so as to of show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the rt true owner must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possession actually informing the real owner of the former's hostile action.
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14. The learned first Appellate Court thus rightly conclude that when the plaintiff had filed a suit for possession based upon the title and the defendant had taken plea of adverse possession to defend his title, in that eventuality of the defendant's failure to prove his adverse possession, the suit filed by the plaintiff could not have been dismissed on the ground that the defendant failed to prove the possession within a period of 12 years prior to the filing of the suit as held by the Apex Court in Indira v. Arumgam [AIR 1999 SC 1549]."::: Downloaded on - 28/09/2023 20:35:06 :::CIS 26
30. Since no plea of adverse possession was raised;
therefore, the year of construction is immaterial in the present .
case.
31. It was submitted that the delay and latches are sufficient to dismiss the suit even though the same may be within limitation. This submission cannot be accepted. It was laid down of by Hon'ble Supreme Court Vidya Devi Versus State of H.P. 2020(2) SCC 569 that the delay and latches are immaterial in case of rt trespass which is a continuous cause of action. It was observed:
"12.12. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.
12.13 In a case where the demand for justice is so compelling, a Constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it. (P.S. Sadasivaswamy v. State of T.N., 1975 1 SCC 152.) 12.14 In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors., 2013 1 SCC 353 this Court while dealing with a similar fact situation, held as follows :::: Downloaded on - 28/09/2023 20:35:06 :::CIS 27
"There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, the grant of compensation for a wrong done to them .
decades ago, recovery of statutory dues, claims for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals of with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for a grant of the rt benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode."
(Emphasis supplied)
13. In the present case, the appellant being an illiterate person, who is a widow coming from a rural area has been deprived of her private property by the State without resorting to the procedure prescribed by law. The appellant has been divested of her right to property without being paid any compensation whatsoever for over half a century. The cause of action in the present case is a continuing one since the appellant was compulsorily expropriated of her property in 1967 without legal sanction or following due process of law. The present case is one where the demand for justice is so compelling since the State has admitted that the land was taken over without initiating acquisition proceedings, or any procedure known to law. We exercise our extraordinary jurisdiction under Articles 136 and 142 of the Constitution and direct the State to pay compensation to the appellant.
32. This position was reiterated in Sukh Dutt Ratra & another Vs. State of H.P & others 2022 (7) SCC 508. Therefore, delay ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 28 and latches are not sufficient to disentitle the plaintiff from seeking relief.
.
33. A plea was taken that the learned Trial Court did not have pecuniary jurisdiction to hear the present suit as the market value of the construction raised on the suit land was about ₹32 lakhs. This is not acceptable. It was laid down by this Court in of Niram Dass vs. Hirda Ram ILR 1975 HP 659 that the construction of the house or the raising of the orchard is immaterial to determine rt the court fee and jurisdiction when the plaintiff is seeking vacant possession of the suit land. It was observed:
8. The real question is whether the value of the land alone is to be considered for determining the value of the suit or regard must also be had to the value of the orchard. There is no dispute that the plaint in the suit refers to the land only and the relief also relates to the land only. The orchard was planted by the petitioner soon after the land was gifted to him. Learned counsel for thepetitioner relies on Shanti Prasad vs. Mahabir Singh(A.I.R. 1957 All. 402.), where a Full Bench of the Allahabad High Court has held that although the plaintiff had not claimed any relief in respect of the buildings and the garden in a suit for possession of land, and he is found entitled to the relief he has claimed, the defendant must either remove the buildings and do away with the garden in question or leave them as they are to be taken by the plaintiff along with the land. In the circumstances, it was laid down that the buildings and garden must be held to be affected by the relief sought within the meaning of the term used in Section 3 of the Suits Valuation Act. It was pointed out that even if the suit ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 29 was deemed to be a suit for possession of land alone, as it involved a building or garden standing on it the market value of the building and the garden standing on the land was bound to be added to the value of the land in order to .
determine the value of the land itself. Reliance was placed on Rule 3 of the U. P. Suits Valuation Act, 1942. Now, this provision expressly lays down that in suits for possession of land, the value of the land for purposes of jurisdiction shall be determined by aggregating the value of the land and the market value of buildings or gardens situated thereon. The decision turned on the particular language of of Rule 3 (e). Such a provision is absent in the Act before me. My attention has been drawn to Divisional Forest Officer, Sarahan Forest Division of Simla Forest Circle, Himachal Pradesh vs. Daut and Ors (A.I.R. 1968-S.C. 612.), but in that rt case, the definition of land included orchards standing thereon.
9. In Kewal Kishore vs. Hamad Ahmad Khan (A.I.R. 1959 Pun.
181) a Division Bench of the Punjab High Court held that in a suit for possession of land, on a part of which some buildings had been erected, the court fee payable in such a suit would not depend on the defence which might be raised but would be measured by the value of the land alone. In Durga Das vs. Nihal Chand (A.I.R. 1928 Lah. 852.), Jai Lal, J. held that in a suit for declaration, the market value of the land alone should be taken into consideration for determining the jurisdiction of the court and the amount of the court fee to be paid. It further observed that the plaintiffs claimed possession of the land and not of the building on the land.
10. It is said that different considerations arise when it is a case of land with trees thereon. It is urged that the case is entirely different from one of land on which a building has been constructed. It is pointed out, on the terms of Section 8 of the Transfer of Property Act that the definition of property means land and all things attached to the land. In my opinion, having regard to the scheme of Section 7 of the Court Fees Act such an inference is not easily possible.
::: Downloaded on - 28/09/2023 20:35:06 :::CIS 30Section 7 (v) speaks separately of land houses and gardens. When a garden or orchard is the object of the suit, the suit must be valued accordingly. Where, however, it is a suit for land only, it is the land alone which must be valued.
.
11. I am of the opinion that in a case such as this, the value of the land for the purposes of court fee and jurisdiction should be taken to be in stricto sensu and cannot include the value of an orchard planted thereon.
34. This position was reiterated in Krishna Devi vs. of Subhadra 2004 Latest HLJ 655, wherein it was observed:
"14. For the purpose of court fee, the plaintiff has valued the suit under Section 7 (iv) (c) of the H.P. Court Fee Act, rt 1968 (For Short 'Court Fee Act1). Both the Courts below on scrutiny of the evidence on record have found that at the time of the institution of the suit, there was no orchard on the land in dispute. Defendant, No.1 while appearing as DW-1 has admitted and stated that the apple trees were planted by him over the land in dispute during the pendency of the suit. The oral testimony of DW-1 stands corroborated by the copy of the application (Ext. PW-4/A), copy of the reply filed to the application (Ext PW-4/B) and copy of the order of the revenue officer dated 25.2.1987 to prove that the apple trees were planted on the land in dispute in the year 1988 and not prior thereto. Seeking decree for possession of the agricultural land, the valuation for the purposes of jurisdiction and Court fee is° required to be assessed on the basis of the land revenue payable of the land. The plaintiff, therefore, had valued the suit for the purposes of Court fee and jurisdiction on the basis of the land revenue payable of the and in dispute. Therefore, both the courts below have rightly held that the suit of the plaintiff is covered by Section 7(iv) (c) of the Court Fee Act The suit of the plaintiff in the alternative for possession of the land in dispute was not for an orchard land at the time of filing of the suit and, therefore the suit was not to be ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 31 valued for the purposes of court fee and jurisdiction at the time of market value of the orchard land."
35. The suit land was assessed to the land revenue. The .
plaintiff did not seek the possession of the house but of the vacant land and they were required to value the suit based on the land revenue, which they had. Therefore, it cannot be said that the suit land was beyond the pecuniary jurisdiction of the learned Trial of Court.
36. No other point was urged.
rt
37. Hence, the proposed questions of law do not arise in the present case, and the appeal cannot be admitted on the proposed substantial questions of law.
Final order:
38. In view of the above, the present appeal fails and the same is dismissed. The records of the case be remitted back to the learned Courts below. Pending miscellaneous applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 16th September,2023 (Ravinder) ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 32 .
of rt ::: Downloaded on - 28/09/2023 20:35:06 :::CIS 33 .
of rt ::: Downloaded on - 28/09/2023 20:35:06 :::CIS