Himachal Pradesh High Court
Shri Gorkhi Ram vs Shri Roshan Lal And Others ... on 16 November, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
RSA No.407 of 2005.
Judgment reserved on: 09.11.2016.
Date of decision:November,16thof 2016.
Shri Gorkhi Ram .....Defendant-Appellant.
of Versus Shri Roshan Lal and others .....Plaintiff-Respondents Coram rt The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1No For the Appellant : Mr.Bhupender Gupta, Senior Advocate with Mr.Ajit Pal Singh Jaswal, Advocate.
For the Respondents: Mr.K.D.Sood, Senior Advocate with Mr.Ankit Aggarwal, Advocate, for respondent No.1.
Tarlok Singh Chauhan, Judge.
The defendant is the appellant, (hereinafter referred to as the defendant) who has lost in both the Courts below and aggrieved thereby has filed the instant second appeal.
2. The facts, in brief, as pleaded are that the plaintiff/respondent No.1 (hereinafter referred to as the plaintiff) filed a suit for possession against the defendants for possession of a house situate over the suit land comprised in Khewat No.42 min, Khatauni No.46, Khasra No.215, measuring 1 biswa, situate in Village Tali, Pargana Fatehpur, Tehsil Sadar, District Bilaspur. It is averred that the house was earlier owned and possessed by the plaintiff and proforma defendants and since defendant No.1 had a large family and was not Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 2 having sufficient accommodation in the village, therefore, he requested them to let him use the house situate in the suit land as licensee till he .
completed the construction of his new house. This proposal was accepted by them and the defendant was permitted to reside in the house as a licensee, but despite he having constructed a new house in the Village did not vacate the house, rather refused to do so, hence the of suit.
3. The defendant/appellant contested the suit by filing written rt statement wherein certain preliminary objections with regard to estoppel, valuation, jurisdiction etc. were taken. On merits, it is averred that the plaintiff was neither the owner nor in possession of the suit land and the house in question was in exclusive ownership of the defendant.
He specifically denied that he was licensee for the last 30 years since the time of his grandfather Sundru and thus had perfected his title by way of adverse possession.
4. No replication was filed and on the pleadings of the parties the following issues were framed by the learned trial Court on 11.05.2000:-
"1. Whether the plaintiff is entitled to a decree for mandatory injunction and for vacant possession of the suit land/property? OPP.
2. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP.
3. Whether the suit is properly verified? OPD.
4. Whether the defendant has become owner of suit land by virtue of adverse possession? OPD.
5. Relief."::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 3
5. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit by answering the issues in the .
following manner:-
"Issue No.1: No, because the frame of the suit is not proper and it has not been properly valued for the purpose of Court fee and jurisdiction.
of Issue No.2: No. Issue No.3: Yes.
rt Issue No.4: No Relief : The suit is hereby dismissed with costs per operative part of the Judgment."
6. The plaintiff filed Appeal whereas the defendant filed Cross Objections assailing the findings rendered by the learned trial Court on issue No.4. The learned first appellate Court vide judgment and decree dated 23.06.2005 allowed the appeal filed by the plaintiff whereas the cross objections filed by the defendant were dismissed against which the defendant/appellant has filed the instant appeal.
7. On 10.08.2005, the appeal came to be admitted by this Court on the following substantial questions of law: -
"1. When the trial court found the value of the suit property of Rs.2.00 lacs and dismissed the suit filed by the plaintiff- respondent having been not properly valued for the purposes of Court fee and jurisdiction, has not the Lower Appellate Court exceeded its jurisdiction in holding that the value of the suit property was not Rs.2.00 lacs, without properly determining the valuation of the suit for the purposes of Court fee and jurisdiction? Has not the Lower Appellate Court taken erroneous view of law in wrongly considering the fact that the land over which the house in dispute was situated was assessed to land revenue, to ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 4 reverse the findings of the trial Court on the question of valuation and jurisdiction?
.
2. When the plaintiff asserted the possession of the defendant over the property in question to be that of a licensee, was not the suit of the plaintiff liable to be dismissed for possession without determining the license as required under the law, especially when it was proved that the of house was constructed by the defendant much before the institution of the suit without the objection of the plaintiff in the same place where the old house was situated?
3. rt Whether both the courts below have failed to appreciate that the provisions of Section 60 of Easement Act whether the possession of the defendant-appellant was protected on account of having raised the valuable structure much before the institution of the suit?
4. Whether both the courts below have recorded erroneous and perverse findings negating the claim of the defendant-
appellant having perfected its title over the property in question by afflux of time or prescription. When the possession of defendant was duly acknowledged over the suit property by endorsing the existence of the structure belonging to the defendant more than 12 years prior to the institution of the suit, was not the suit of the plaintiff barred by limitation and ought to have been dismissed as such?"
I have heard the learned counsel for the parties and gone through the records of the case.
Substantial Question of Law No.1.
8. The earlier part of the question as regards the valuation and jurisdiction has clearly become redundant as it is conceded that during the pendency of the suit the pecuniary jurisdiction of the learned trial Court was enhanced from `2.00 lacs to `5.00 lacs. That apart, the valuation of the suit would hardly have any effect as regards the decision rendered by the learned Courts below on the merits of the ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 5 case. As regards the later part of this question with regard to land being assessed to land revenue, which ultimately affected the decision of the .
learned trial Court, as observed earlier, even if, this question is answered either way, the same will have no bearing on the merits of the case.
9. Even, if it is assumed that the valuation of the suit was of more, even then, the same will have no bearing on the decision, firstly, for the reason that the pecuniary jurisdiction of the learned trial Court rt during the pendency of the suit had been enhanced from `2.00 lacs to `5.00 lacs. Further, even if it is assumed that the learned trial Court lacked pecuniary jurisdiction, the same shall have no bearing on the validity of the judgment and decree passed by it, more particularly, when the defendant has failed to question the judgment and decree so passed on the ground that there has been prejudice on the merits.
(Refer: Kiran Singh versus Chaman Paswan AIR 1954 SC 340).
10. The issue has already been considered by this Court in RSA No.115 of 2014, titled Surinder Singh Sautha versus Raja Yogindra Chandra, decided on 29.05.2014, wherein it was held as under:-
"18.The next point raised by learned counsel for the appellant is that the order passed by a Court lacking pecuniary jurisdiction is void, ab initio and, therefore, the judgment passed by the learned trial Court as affirmed by the learned lower Appellate Court is without jurisdiction and deserves to be set-aside. He referred to number of decisions of the various High Courts on the question viz. Mamraj Agarwala and others vs. Ahamad Ali Mahamad AIR 1919, Calcutta 984, Mool Chand Moti Lal vs. Ram Kishan and others AIR 1933 Allahabad 249, Shyam Nandan Sahay and others vs. Dhanpati Kuer and others AIR 1960 Patna 244 and Controller of Stores and another vs. M/s Kapoor Textile Agencies, AIR 1975 Punjab 321.::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 6
19. The judgments relied upon by learned counsel for the appellant would not be of much significance and have lost .
efficacy in view of the judgment of the Hon'ble Supreme Court in Kiran Singh and others vs. Chaman Paswan and others AIR 1954 S.C.340 wherein the Hon'ble Supreme Court held that when a case had been tried by a court on merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and of the policy of the legislature has been to treat objections of jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has rt been a prejudice on the merits. Further it may be observed that there have been a number of subsequent pronouncements of the Hon'ble Apex Court and also by this Court on this issue which otherwise are binding on this Court. The same are referred to and discussed in detail in the later part of the judgment.
20. The entire law with regard to the decree passed by a Court lacking pecuniary jurisdiction has been discussed in detail by the Hon'ble Supreme Court in Subhash Mahadevasa Habib vs. Nemasa Ambasa Dharmadas (dead) by LRs. And others (2007) 13 SCC 650 and the position has been summed up as follows:
"33. What is relevant in this context is the legal effect of the so-called finding in OS No. 4 of 1972 that the decree in OS No. 61 of 1971 was passed by a court which had no pecuniary jurisdiction to pass that decree. The Code of Civil Procedure has made a distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction. Whereas an inherent lack of jurisdiction may make a decree passed by that court one without jurisdiction or void in law, a decree passed by a court lacking territorial jurisdiction or pecuniary jurisdiction does not automatically become void. At best it is voidable in the sense that it could be challenged in appeal therefrom provided the conditions of Section 21 of the Code of Civil Procedure are satisfied.
34. It may be noted that Section 21 provided that no objection as to place of the suing can be allowed by even an appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 7 opportunity and unless there has been a consequent failure of justice. In 1976, the existing section was .
numbered as sub-section (1) and sub-section (2) was added relating to pecuniary jurisdiction by providing that no objection as to competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection had been taken in the first instance at the earliest possible of opportunity and unless there had been a consequent failure of justice. Section 21-A also was introduced in 1976 with effect from 1.2.1977 creating a bar to the institution of any suit challenging the validity of a decree rt passed in a former suit between the same parties on any ground based on an objection as to the place of suing.
The amendment by Act 104 of 1976 came into force only on 1.2.1977 when OS No. 4 of 1972 was pending. By virtue of Section 97 (2) (c ) of the Amendment Act, 1976, the said suit had to be tried and disposed of as if Section 21 of the Code had not been amended by adding sub-section (2) thereto. Of course, by virtue of Section 97 (3) Section 21-A had to be applied, if it has application. But then, Section 21-A on its wording covers only what it calls a defect as to place of suing.
35. Though Section 21-A of the Code speaks of a suit not being maintainable for challenging the validity of a prior decree between the same parties on a ground based on an objection as to "the place of suing", there is no reason to restrict its operation only to an objection based on territorial jurisdiction and excluding from its purview a defect based on pecuniary jurisdiction. In the sense in which the expression "place of suing" has been used in the Code it could be understood as taking within it both territorial jurisdiction and pecuniary jurisdiction.
36. Section 15 of the Code deals with pecuniary jurisdiction and, Sections 15 to 20 of the Code deal with "place of This Court in Bahrein Petroleum Co. Ltd. v. P.J. Pappu AIR 1966 SC 634 made no distinction between Section 15 on the one hand and Sections 16 to 20 on the other, in the context of Section 21 of the Code. Even otherwise, considering the interpretation placed by this Court on Section 11 of the Suits Valuation Act and treating it as equivalent in effect to Section 21 of the Code of Civil Procedure as it existed prior to the amendment in ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 8 1976, it is possible to say, especially in the context of the amendment brought about in Section 21 of the Code by .
Amendment Act 104 of 1976, that Section 21-A was intended to cover a challenge to a prior decree as regards lack of jurisdiction, both territorial and pecuniary, with reference to the place of suing, meaning thereby the court in which the suit was instituted.
37. As can be seen, Amendment Act 104 of 1976 of introduced sub-section (2) relating to pecuniary jurisdiction and put it on a par with the objection to territorial jurisdiction and the competence to raise an objection in that regard even in an appeal from the very rt decree. This was obviously done in the light of the interpretation placed on Section 21 of the Code as it existed and Section11 of the Suits Valuation Act by this Court in Kiran Singh v. Chaman Paswan AIR 1954 SC 340 followed by Hiralal Patni v. Kali Nath AIR 1962 SC 199 and Bahrein Petroleum Co. Ltd. v. P.J.Pappu AIR 1966 SC 634. Therefore, there is no justification in understanding the expression "objection as to place of suing" occurring in Section 21-A as being confined to an objection only in the territorial sense and not in the pecuniary sense. Both could be understood, especially in the context of the amendment to Section 21 brought about by the Amendment Act, as objection to place of suing.
38. It appears that when the Law Commission recommended insertion of Section 21-A into the Code, the specific provision subsequently introduced in sub-section (2) of Section 21 relating to pecuniary jurisdiction was not there. Therefore, when introducing sub-section (2) of Section 21 by Amendment Act 104 of 1976, the wordings of Section 21-A as proposed by the Law Commission were not suitably altered or made comprehensive. Perhaps, it was not necessary in view of the placing of Sections 15 to 20 in the Code and the approach of this Court in Bahrein Petroleum Co. Ltd. AIR 1966 SC 634. But we see that an objection to territorial jurisdiction and to pecuniary jurisdiction, is treated on a par by Section 21. The placing of Sections 15 to 20 under the heading "place of suing"
also supports this position. Taking note of the object of the amendment in the light of the law as expounded by this Court, it would be incongruous to hold that Section 21-A takes in only an objection to territorial jurisdiction ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 9 and not to pecuniary jurisdiction. We are therefore inclined to hold that in the suit OS No. 4 of 1972, the .
validity of the decree in OS No. 61 of 1971 could not have been questioned based on alleged lack of pecuniary jurisdiction. Of course, the suit itself was not for challenging the validity of the decree in OS No. 61 of 1971 an the question of the effect of the decree in OS No. 61 of 1971 only incidentally arose. In a strict sense, therefore, of Section 21-A of the Code may not ipso facto apply to the situation.
39. But the fact that Section 21 (2) or Section 21-A of the Code may not apply would not make any difference in rt view of the fact that the position was covered by the relevant provision in the Suits Valuation Act, 1887.
Section 11 of the Suits Valuation Act provided that notwithstanding anything contained in Section 578 (Section 99 of the present Code covering errors or irregularity) of the Code of Civil Procedure, an objection that a court which had no jurisdiction over a suit had exercised it by reason of undervaluation could not be entertained by an appellate court unless the objection was taken in the court of first instance at or before the hearing at which the issues were first framed or the appellate court is satisfied for reasons to be recorded in writing that the overvaluing or undervaluing of the suit has prejudicially affected the disposal of the suit. There was some confusion about the content of the section.
40. The entire question was considered by this Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. Since in the present case, the objection is based on the valuation of the suit or the pecuniary jurisdiction, we think it proper to refer to that part of the judgment dealing with Section 11 of the Suits Valuation Act. Their Lordships held: (AIR p. 342, para 7) "7. ....It provides that objections to the jurisdiction of a court based on overvaluation or undervaluation shall not be entertained by an appellate court except in the manner and to the extent mentioned in the section. It is a self- contained provision complete in itself, and no objection to jurisdiction based on overvaluation or undervaluation can be raised otherwise than in accordance with it.
::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 10With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts .
that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99 of the Civil Procedure Code of and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to rt be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits."
In Hiralal Patni v. Kali Nath, AIR 1962 SC 199, it was held that: (AIR p.201, para 4) "4..... It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure."
In Bahrein Petroleum Co. Ltd. v. P.J. Pappu AIR 1966 SC 634, it was held Section 21 is a statutory recognition of the principle that the defect as to the place of suing under Sections 15 to 20 of the Code may be waived and that even independently of Section 21, a defendant may waive the objection and may be subsequently precluded from taking it."
21. In fact, a similar proposition came up before this Court (Coram : Deepak Gupta, J, as his Lordship then was) in Tikam Ram and others vs. Purshotam Ram and others 2011 (3) Shim. L.C. 251 wherein again after noticing all the relevant provisions along with law, it was held as under:
::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 11"19. To appreciate the rival contentions of the parties, it would be appropriate to refer to Section 21 of the CPC and .
Section 11 of the Suits Valuation Act which read as follows:
Civil Procedure Code:
"21. Objections to jurisdiction. - [(1) No. objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the of Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent rt failure of justice.
(2) No objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice."
Suits Valuation Act "11. Procedure where objection is taken on appeal on revision that a suit or appeal was not properly valued for jurisdictional purposes.- (1) Notwithstanding anything in [Section 578 of the Code of Civil Procedure (14 of 1882)] and objection that by reason of the over-valuation or under-valuation of suit or appeal a Court of first instance or lower Appellate Court which had no jurisdiction with respect to the suit or appeal exercise jurisdiction with respect thereto shall not be entertained by an Appellate Court unless.-
(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower Appellate Court in memorandum of appeal to that Court, or ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 12
(b) the Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or .
appeal was over-valued or under-valued, and that the over-valuation or undervaluation thereof has prejudicially affected the disposal of the suit or appeal on its merits.
(2) If the objection was taken in the manner mentioned in clause (a) of sub-section (1), but the Appellate Court is of not satisfied as to both the matters mentioned in clause
(b) of that sub-section and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeals as if there rt had been no defect of jurisdiction in the Court of first instance or lower Appellate Court.
(3) If the objection was taken in that manner and the Appellate Court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals; but if it remands the suits or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.
(4) The provisions of the Section with respect to an Appellate Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under [Section 622 of the Code of Civil Procedure (14 of 1882)] or other enactment for the time being in force.
(5) This Section shall come into force on the first day of July, 1887."
20. The Apex Court in Kiran Singh and others vs. Chaman Paswan and others, AIR 1954 (41), SC 340 was dealing with a case for recovery of possession of more than 12 acres of land. The suit was dismissed. The plaintiff thereafter filed an appeal in the court of District Judge who also dismissed the appeal. In the second appeal, the plaintiffs for the first time raised an objection that the suit itself had not been properly valued for the purpose of Court fee and jurisdiction and prayed that their appeal should be treated as a first appeal against the order of the learned trial Court. The High Court rejected the plea of the plaintiffs on the ground that the defendants could succeed only when they established prejudice on ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 13 the merits of the case. An appeal was filed before the Apex Court and it was urged that the decree passed by .
the District Judge was a nullity because in an original suit having valuation of Rs.9980/-, appeal would lie to the High Court alone and not to the District Judge. The Apex Court held as follows:-
"It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a of nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and rt even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."
21. Relying upon these observations, Sh. Bhupender Gupta, learned senior counsel for the respondents submits that the decree and judgment of the learned trial Court is a nullity and the learned District Judge was justified in ordering the return of the plaint. This argument cannot be accepted to be correct because it was after making these observations that the Apex Court dealt with Section 11 of the Suits Valuation Act.
22. Dealing with the import of the word prejudice occurring in Section 11, the Apex Court held as follows:-
"The language of Section 11 of the Suits Valuation Act is plainly against such a view. It provides that over valuation or undervaluation must have prejudicially affected the disposal of the case on the merits. The prejudice on the merits must be directly attributable to over valuation or under valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over valuation or undervaluation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the Section."
23. It is also important to note that the aforesaid decision of the Apex Court was rendered much before the amendment of Section 21 of the Code of Civil Procedure. Vide Code of Civil Procedure Amendment Act, 1976, sub-
::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 14sections 2 and 3 were introduced in Section 21 and sub- section 2 clearly provides that no objection as to the .
competence of a Court with reference to the pecuniary limits of its jurisdiction shal be allowed by any Appellate Court unless such objection was taken in the court of the first instance at the earliest possible opportunity before settlement of issues and unless there has been a consequent failure of justice. Sub section 2 clearly of envisages that not only should the objections have been taken at the first instance but there should have been consequent failure of justice. If there is no failure of justice then the Court would not entertain the objection as rt to the competence of the Court with reference to its pecuniary limits. This aspect of the matter has not at all been considered by the lower appellate Court.
24. In Sat Paul and another v. Jai Bhan Ananta Saini, AIR 1973 Punjab and Haryana 58 decided prior to the amendment to Section 21 and only taking into consideration Section 11 of the Suits Valuation Act, a learned Single Judge of the Punjab and Haryana High Court held that without showing that any prejudice has been caused, the Appellate Court could not set aside the judgment only on the ground of the suit being improperly valued.
25. In Harshad Chiman Lal Modi v. DLF Universal Ltd. and another 2005 (7) SCC 791 the Apex Court held as follows:
"We are unable to uphold the contention. The jurisdiction of a Court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject- matter, however, is totally distinct and stands on a different footing. Where a Court has no jurisdiction over the subject matter of the suit by reason of any ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 15 limitation imposed by statute, charter or commission, it cannot take up the cause or matter.
.
An order passed by a Court having no jurisdiction is a nullity."
26. The Apex Court further went on to hold that the Courts at Delhi did not have jurisdiction under Section 16 to decide the issue and, therefore, lacked inherent jurisdiction to decide the matter.
of
27. The then Hon'ble Chief Justice of this Court in Ajay Singh v. Tikka Brijendra Singh and others, 2006 (2) SLC 394 considered this question in detail and after noting the rt provisions of Sections 21 and 99 of the Civil Procedure Code and Section11 of the Suits Valuation Act held as follows:
"A combined reading of the aforesaid three provisions of law clearly suggests, first and foremost that no objection as to the competence of a Court with reference to its pecuniary limits of jurisdiction shall be allowed unless there has been a consequential failure of justice, and secondly, that no decree shall be reversed or substantially varied etc. on account of any error etc. including an error of jurisdiction which does not affect the merits of the case and thirdly, no objection about the jurisdiction of a Court for over valuation or under valuation of a suit etc. shall be entertained by an Appellate Court unless, apart from the objection having been taken in the Court of first instance etc., the Appeal Court is satisfied for reasons to be recorded in writing that such overvaluation or under valuation has prejudicially affected the disposal of the suit by the trial Court."
28. In Hasham Abbas Sayyad v. Usman Abbas Sayyad and others, 2007 (2) SCC 355, the Apex Court held as follows:-
"24. We may, however, hasten to add that a distinction must be made between a decree passed by a Court which has no territorial or pecuniary jurisdiction in the light of Section 21 of the Code of Civil Procedure, and a decree passed by a Court having no jurisdiction in regard to the subject matter of the suit. Whereas in the former case, the ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 16 appellate Court may not interfere with the decree unless prejudice is shown, ordinarily the second .
category of the cases would be interfered with."
29. It would be pertinent to mention that the Apex Court and this Court clearly laid down that so far as objections to the territorial and pecuniary jurisdiction are concerned, the objections must be taken at the earliest possible opportunity and order of the Court not having of pecuniary jurisdiction cannot be said to be an nullity. The Court does not lack jurisdiction to decide such a dispute. It only does not have the pecuniary jurisdiction to decide rt the dispute. Therefore, if it entertains and tries the matter and decides these disputes then the learned Appellate Court cannot set aside its findings unless it comes to the conclusion that prejudice has been caused in terms of Section 11 of the Suits Valuation Act and consequent failure of justice in terms of Section 21 (2) of the Code of Civil Procedure."
Substantial Questions of Law No.2 and 3.
11. Since both these issues are intrinsically interlinked and interconnected, therefore, the same are taken up together for consideration.
12. Though the learned counsel for the defendant would vehemently argue that the suit was not maintainable as the plaintiff had without determination of the licence, as required under the law, filed the instant suit. I really do not find any force in this contention. The backdrop for raising this contention on the part of the defendant is that the house so admittedly constructed by the defendant before the institution of the suit while it is not so. The learned first appellate Court after scanning the entire evidence came to the conclusion that the house, if any, constructed by the defendant after demolition of the old house was infact constructed by him over his own land bearing khasra No.214 which is not the subject matter of the dispute. That apart, these ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 17 questions do not even emanate either from the pleadings or the evidence of the parties appears to be ingenuity and creation of a legal .
mind. It would also be noticed that the defendant does not admit himself to be the licensee and rather claims to have become owner of the suit land by way of adverse possession and, therefore, under these circumstances, the plea as sought to be raised in these questions is not of otherwise available to him and these questions are answered accordingly. rt Substantial Question of Law No.4.
13. At the outset, the plea of adverse possession, as raised by the defendant, requires to be noticed and the same is contained in para-4 of the preliminary objections of the written statement, which reads thus:-
"4. That the defendant is owner in exclusive possession of the house and land in suit for the last over thirty years, since the time of his grandfather Sundru. Sundru gave the suit land to the father of the defendant for the construction of the house, and after constructing a small house, the father of the defendant gave the house and land in suit to the defendant. That ever since the defendant got into possession of the suit property, his possession of suit land & house is open, effective, continuous, hostile and as of right and is adverse to every body including the plaintiff and proforma defendants. The plaintiff and proforma defendants are fully conscious of the defendant's adverse possession of the suit land, since its inception and his possession continue un-interrupted till today. The defendant reconstructed his old house on the suit land as the old house was going to fall, the plaintiff never objected to the re-construction of the same as such the suit of the plaintiff may kindly be dismissed."
14. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is well ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 18 settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario" i.e. peaceful, .
open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and must be actual, visible, exclusive, hostile and continued over the of statutory period. Therefore, a person who claims adverse possession has to show: rt
(a) on what date he came into possession;
(b) what was the nature of his possession;
(c) whether the factum of possession was known to the other party ;
(d) how long his possession is continued; and
(e) his possession was open and undisturbed.
It has to be remembered that the person pleading adverse possession has no equity in his favour since he is trying to defeat the right of the true owner, therefore, it is for him to clearly plead and establish all facts necessary to establish his adverse possession (Refer Dr. Mahesh Chand Sharma vs. Raj Kumari Sharma (Smt.) and others (1996) 8 SCC 128).
15. In P. Periasami (dead) by LRs. Vs. P.Periathambi and others (1995) 6 SCC 523, the Hon'ble Supreme Court held "whenever the plea of adverse possession is projected, inherent in the plea is that someone else is the owner of the property. The pleas of title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.
::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 1916. Adverse possession as the word implies must be actual possession of another's land with an intention to hold it and claim it as .
his own. It must commence with the dispossession of the rightful owner at some particular time. It must commence with a wrong and must be maintained as a matter of right. It must be actual, open, notorious, hostile, under claim of right, continuous and exclusi ve and maintained of for statutory period. The person, who claims adverse possession, must show on which date he came in possession, what was the nature of his rt possession, whether the factum of his possession was known to the legal claimant and how long his possession continued. Ouster of the real owner is the foundation of the title by adverse possession.
Conversely, mere possession for any number of years cannot constitute adverse possession. Regard must be had to the animus of the person doing that and this has to be ascertained from the cumulative facts and circumstances of each case. Thus, the crux of the adverse possession that it must be adequate, in continuity, in publicity and extent and plea is required atleast to show when possession becomes adverse so that the starting point of limitation against the party affected, can be found.
17. As already observed above, the pleadings set out by the defendant with regard to adverse possession are wholly deficient and, therefore, no amount of evidence for which there is no factual foundation in the pleadings can be looked into.
18. That apart, even if the evidence is looked into, the defendant has not been able to prove his adverse possession. Even while the proceedings were pending before the Assistant Collector IInd Grade with regard to correction of Khasra Girdawari which were ultimately decided on 17.03.1986, the only claim set up by the ::: Downloaded on - 15/04/2017 21:33:42 :::HCHP 20 defendant was with regard to his possession, whereas, on the other hand, the specific claim set up by the plaintiff was with regard to .
ownership of the land which was not even disputed by the defendant.
The mere fact that the defendant was put into possession would not ipso facto make his possession adverse to the real owner as one of the basic requirements of law is that the possession has to be open, of notorious and hostile apart from being continuous, exclusive and maintained as a matter of right over statutory period. Unfortunately, rt all these ingredients are lacking in the present case.
19. After having referred to the pleadings of the defendant, now even if the oral evidence is adverted to, it would be noticed that the defendant has not even stated when he came into possession of the suit land, nature of his possession, whether there was animus on his part to hold the land adversely to the original owner, if so, the time when such hostility had been brought to the notice of the actual owner. Moreover, as already observed, the defendant has not even proved that on which day, month or year, he had possessed the suit land adversely to the notice of the true owner. In absence of these ingredients, the plea of the defendant qua adverse possession cannot be accepted. The substantial question of law is answered accordingly.
20. In view of the aforesaid discussion, there is no merit in this appeal and accordingly the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
November,16th , 2016. (Tarlok Singh Chauhan), (krt) Judge.
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