Himachal Pradesh High Court
Sh. Jaswant Singh vs State Of H.P on 3 January, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 162 of 2017
Decided on: 02.01.2018
Sh. Jaswant Singh ...Appellant/plaintif
.
Versus
State of H.P. ...Respondent/defendant
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No.
For the Appellant: Mr. Suneet Goel, Advocate.
For the respondents: Mr. J. S. Guleria, Advocate.
Justice Tarlok Singh Chauhan, Judge (Oral)
The appellant is the plaintif who has lost in both the learned Courts below and aggrieved by the judgments and decrees so passed has filed the instant appeal.
2. The parties hereinafter in this judgment shall be referred to as the 'plaintif' and 'defendant'
3. Brief facts of the case are that the plaintif filed a suit for declaration with consequential relief of permanent prohibitory injunction against the defendant. Plaintif claimed himself the proprietor and khewatdar of village Karsoli, Tehsil Nalagarh, District Solan. His maternal grandfather Shri Baggu was owner in possession of land measuring 21B-6B, bearing khasra Nos.
1379/2/1, 7 and 11, comprised in Kh. Kht. Nos. 95/107, as detailed in the copy of jamabandi for the year 1969-70, situated in the area of village Karsoli, alongwith the property measuring 0-12 biswas, bearing khasra Nos. 9/2(0-3), 9/3(0-9), out of khasra No. 9(13-1), ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 2 comprised in Kh.Kht. Nos. 392 min/400 min, as entered in the copy of Jamabandi for the year 2010-11 (hereinafter referred to the suit land). The aforesaid land was purchased by the maternal grand-
.
father of the plaintif namely Sh. Baggu from Hari Ram son of Sh.
Johari vide sale deed dated 06.12.1969 and since then he was in possession of the same. Sh. Baggu constructed a kacha mud house, varamdah and kitchen etc. over the suit land in the year 1970 and started using the remaining portion as courtyard, Bara Bhawar and passage to the complete knowledge of all the concerned including the defendant and nobody had raised objection when the construction was being raised on the spot.
Later on. Sh. Baggu had gifted the aforesaid property to the mother of the plaintif in the year 1975 and since then the mother of the plaintif had been using suit land as owner and after her death the plaintif stepped into the shoes of his mother in the year 1981. In this manner, the plaintif has been coming into peaceful, continuous, hostile, uninterrupted possession of the suit land without any let or hindrance from any side. However, the aforesaid mud house had fallen in the month of July, 1999 during rainy season and thereafter the plaintif renovated the same on the same structure by making it pacca. The plaintif has no other residential house except the house in dispute in the locality. On coming into operation of the H.P. Village Common Lands (Vesting and Utilization) Act, 1974, the aforesaid house of the plaintif has been saved from vesting in the State of H.P. under the provisions ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 3 of the Act. As the plaintif himself and through his maternal grand-
father and mother is coming in peaceful, open, continuous, hostile and uninterrupted possession of the suit land since 06.12.1969 to .
the complete knowledge of the defendant and all other concerned, the plaintif has become owner of the suit property by way of adverse possession and defendant has no right, title and interest whatsoever over the same. Even statutory authority under the aforesaid H.P. Village Common Lands (Vesting and Utilization) Act, 1974 has not conducted any inquiry as envisaged under the Act, the defendant had started ejectment proceedings against the plaintif under Section 163 of the H.P. Land Revenue Act and accordingly A.C. Ist Grade, Nalagarh has passed ejectment order against the plaintif on 07.08.2012 and thereafter the plaintif had filed appeal before the Collector, Sub-Division, Nalagarh which was also dismissed on 20.03.2013 and in this manner the aforesaid orders passed by the A.C. Ist Grade, Nalagarh and Collector Sub-
Division, Nalagarh are wrong, illegal and void. As the matter was of urgent nature hence the application under Section 80(2) CPC was filed for seeking permission of the Court to file suit against the defendant. The defendant was requested several times to admit the claim of the plaintif but defendant refused to admit the same.
Hence, the present suit.
4. The defendant resisted the suit, filed written statement, inter alia taking preliminary objections of maintainability, cause of action, estoppel and want of notice under ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 4 Section 80 CPC and jurisdiction. On merits, denied that the maternal grand-father of the plaintif has come into possession of the suit property and he had purchased the same from Hari Ram .
and maternal grand-father of the plaintif namely Baggu and he constructed kacha mud house over the same. It is denied that the plaintif or his predecessor have been coming in possession of the suit property since the year 1969 and their possession is open, peaceful, continuous and uninterrupted and the plaintif has become owner of the suit property by way of adverse possession.
It is alleged that in fact the plaintif is encroacher over the suit land as per report dated 04.04.2011 made by the Patwari Halqua belonging to the defendant. Thereafter, the encroachment proceedings were initiated against the plaintif under Section 163 of the HP Land Revenue Act and accordingly, A.C. Ist Grade Nalagarh has passed ejectment order dated 07.08.2012 against the plaintif vide which the plaintif has already been ordered to be ejected from the suit land. Thereafter, the plaintif had filed an application against the said order before Collector Sub-Division Nalagarh which was also dismissed. Thus, when it has come on record that the plaintif had constructed house over the disputed land only in the year, 2011, there is no question that the plaintif has become owner of the suit land by way of adverse possession.
In fact, the plaintif is trying to mislead the Court. Since the suit land has already been vested with the State of H.P. i.e. defendant free from all encumbrances, the plaintif has no right, title and ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 5 interest whatsoever over the suit land. The cause of action set up by the plaintif is denied and suit is sought to be contested.
5. In replication, the plaintif reasserted his claim put .
forth in the plaint by denying the defence taken in written statement by the defendant.
6. On the pleadings of the parties, following issues were framed for trial on 07.01.2015:-
1. Whether the plaintif has become owner of suit land by way of adverse possession, as alleged?OPP
2. Whether the ejectment order dated 07.08.2012 passed by A.C. Ist Grade, Nalagarh in case No. 2/11, titled as State vs. Jaswant Singh and order dated 20.03.2013, passed by Collector, Sub-Division, Nalagarh in appeal No. 36 VIII/2012 and the warrant of dispossession issues are wrong, illegal, null and void having no efect, as alleged?OPP
3. If issues No. 1 & 2 are proved in affirmative, whether the plaintif is entitled for the relief of permanent prohibitory injunction, as prayed for?OPP
4. Whether the suit is not maintainable, as alleged?OPD
5. Whether the plaintif has no cause of action to file the present suit, as alleged?OPD
6. Whether the plaintif has no locus-standi to file the present suit, as alleged?OPD
7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged?OPD
8. Whether the suit is bad for non-compliance of mandatory provision of Section 80(1) CPC, as alleged?OPD
9. Whether the plaintif is estopped from filing the present suit due to his own act and conduct, as alleged?OPD
10. Whether this Court is have no jurisdiction to try the present suit, as alleged?OPD
11. Relief
7. Learned trial Court after recording evidence and evaluating the same, dismissed the suit of the plaintif. Appeal filed against the same also came to be dismissed by the learned Additional District Judge-I Solan vide judgment dated 09.01.2017.
8. Aggrieved by the judgments and decrees passed by both the Courts below, the plaintif has filed the instant appeal ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 6 mainly on the ground that the findings recorded by the learned Courts below are perverse.
I have heard learned counsel for the parties and have .
gone through the records of the case.
9. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v.
Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English -
International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 7 PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) .
PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 810. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But .
if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
10. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 9 evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
11. What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 10 even in that case a question of law has to be formulated and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) .
"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and
2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 11 not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out .
on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 12
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the .
ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 13 High Court and restore that of the trial court as confirmed by the appellate court."
12. Adverting to the facts, it would be noticed that the plaintif has filed the suit whereby he has sought declaration based .
on the plea of adverse possession
13. It is more than settled that the plea of adverse possession can only be used as shield and not as sword. This question otherwise need not detain this Court any longer in view of the authoritative pronouncement of the Hon'ble Supreme Court in Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another, 2014(1) SCC 669, wherein it was observed as under:-
"5. In so far as first issue is concerned, it was decided in favour of the plaintif returning the findings that the appellant was in adverse possession of the suit property since 13.4.1952 as this fact had been proved by plethora of documentary evidence produced by the appellant. However, while deciding the second issue, the court opined that no declaration can be sought on the basis of adverse possession inasmuch as adverse possession can be used as a shield and not as a sword. The learned Civil Judge relied upon the judgment of the Punjab and Haryana High Court in Gurudwara Sahib Sannuali vs. State of Punjab PLR page 756 and thus, decided the issue against the plaintif. Issue No.3 was also, in the same vein, decided against the appellant. In so far as issue no.4 pertaining to relief of injunction is concerned, the learned Civil Judge held that aslong uninterrupted possession of the appellant was established, the appellant was entitled to the decree of injunction and the respondents were restraining from dispossessing the appellant forcibly and illegally from the suit land and also restrained from damaging the building of Gurudwara Sahib. Issue No.5 was decided against the respondent on the ground that no evidence was led to show how the suit was not maintainable in the present form. While ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 14 granting relief, the learned Civil Judge partly decreed the suit holding as under:
"It is held that plaintif is in adverse possession over the suit property since 13.4.1952 and defendants are .
restrained from dispossessing the plaintif forcibly and illegally from the suit property and further restrained from damaging the building of Gurudwara Sahib except according to due process of law. As discussed above, the remaining relief as sought by the plaintif is dismissed. Decree sheet be prepared. File be consigned to the record room."
6. It is pertinent to note that the respondents accepted the judgment and decree pertaining to prohibiting injunction. It is the appellant who filed the First Appeal. Obviously, the confines of the said appeals related to the issue pertaining to declaration of ownership of adverse possession. The First Appellate Court while dismissing the appeal observed as under:
"The respondents have not challenged the judgment and decree dated 6.1.2009 passed by the ld. Civil Judge (Jr. Div.), Khanna, which means that they have accepted that the appellant was in adverse possession of the suit land since 13.4.1952. The issue whether adverse possession of the appellant/plaintif had matured into his ownership is purely a question of law and it is a settled that no declaration of title can be sought on the basis of adverse possession. Ld. Trial court has rightly relied upon the case titled Gurudwara Sahib Sannauli vs. State of Punjab PLR 756 wherein it is held that no declaration can be sought by the plaintif with regard to adverse possession because such a plea is available only to the defendant. Since the appellant was not the lawful owner of the property in dispute, therefore, respondent No.1 was within its rights to auction a part of the same, on 19.12.2003 in favour of respondent No.2. Respondent No.1 has proved that land measuring 13B-12B was auctioned on 19.12.2003 in the presence of BDPO Doraha and Ranjit Singh was declared as the last bidder and the auction was struck in his name of a consideration of Rs.1,11,000/- and the land measuring 6B on which the building of Gurudwara Sahib had been constructed, was not auctioned. In view of my above discussion, I find no material illegality or irregularity in the judgment and decree dated 6.11.2009 passed by ld. Trial court and therefore the appeal is dismissed and the findings of the ld. trial court are affirmed. Decree sheet be prepared. File of lower court be returned forthwith. File be consigned to the record room."::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 15
[7] In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintif is found to be in adverse .
possession, it cannot seek a declaration to the efect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.
14. Faced with situation, the learned counsel for the plaintif would further argue that in terms of the judgment in Gurdwara Sahib's case (supra) the plaintif can only be ordered to be evicted in accordance with law and, therefore, his possession be protected till such time.
15. However, I find no merit in this contention for the simple reason that defendant had already initiated eviction proceedings on the basis of which ejectment order came to be passed by A.C. Ist Grade, Nalagarh on 07.08.2012 in case No. 2/11, titled as State vs. Jaswant Singh. This order was assailed before the Collector, Sub-Division, Nalagarh by way of Appeal No. 36- VIII/12, however, the same was also dismissed vide order dated 20.03.2013 and, therefore, it cannot be held that plaintif cannot claim that he is being forcibly evicted.
16. As a last ditch efort and by way of last resort, it is vehemently argued by Shri Suneet Goel, learned counsel for the appellant that at least the land measuring 3 biswas over which the house of the appellant is standing may be protected.
::: Downloaded on - 03/01/2018 23:27:55 :::HCHP 1617. I am inclined to accept the prayer, as otherwise the plaintif would be deprived of his only dwelling and, therefore, it would be extremely harsh, in case, he is ordered to be evicted .
therefrom.
18. In view of the aforesaid discussion, even though, this Court does not find any merit in this appeal, while affirming the judgments and decrees passed by both the learned Courts below, it is declared that the plaintif is the owner of land measuring 3 biswas over which his house is constructed and the defendant is restrained from interfering i.e. possession over the said land.
However, it is clarified that the plaintif is not entitled to any other declaration or injunction whatsoever.
19. Consequently, the appeal is partly allowed, only to the extent indicated above, leaving the parties to bear their own costs.
Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan), Judge.
January 02, 2018 sanjeev ::: Downloaded on - 03/01/2018 23:27:55 :::HCHP