Himachal Pradesh High Court
Lekh Raj & Ors vs Inder Dev on 29 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.161 of 2007 Date of Decision: 29.08.2016 ___________________________________________________________ .
Lekh Raj & ors. ..... Appellants.
Versus
Inder Dev ...... Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
of Whether approved for reporting?1 Yes.
For the Appellants: Mr. Sunil Mohan Goel, Advocate.
rt For the Respondent: Mr. V.S. Chauhan, Advocate.
Sandeep Sharma, Judge Instant Regular Second Appeal filed under Section 100 of the Code of Civil procedure is directed against the judgment and decree dated 4.1.2007, passed by learned Additional District Judge (Fast Track), Kullu, District Kullu, H.P. in Civil Appeal No. 38/05, RBT. C. Appeal No. 06/05, affirming judgment and decree dated 17.5.2005 passed by learned Civil Judge (Jr. Division), Manali, Camp at Kullu, District Kullu in Civil Suit No. 72/04/162/04, whereby suit filed by the Whether reporters of the local papers may be allowed to see the judgment?
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respondent/Plaintiff (hereinafter referred to as 'Plaintiff'), for permanent prohibitory injunction restraining the defendants .
(hereinafter referred to as 'Appellants') was decreed and defendants were restrained from interfering in any manner over the suit land.
2. Briefly stated facts of the case as emerged from of the record are that plaintiff filed suit for permanent injunction restraining the defendants from interfering over rt the land measuring 4-15-0 Bigha bearing Khasra No. 5818/1, Khata Khatauni No. 1510/2126 and land measuring 1-6-0 bigha bearing khasra No. 7312/5817/2, khata khatauni No. 1509/2125 as depicted in the jamabandi for the year 1998-99 situated at Phati Shilihar, Kothi Kotkandi, Tehsil & District Kullu, H.P. Plaintiff averred in the plaint that earlier land comprising Khasra No. 7312/5817 and Khasra No. 5818 was jointly owned and possessed by the parties and later on the same was partitioned and after partition, land measuring 4-15-0 bigha bearing khasra No. 5818/1 and land measuring 1-6-0 bigha bearing Khasra No. 7312/5817/2 was allotted to the plaintiff, who became exclusive owner in possession of the ::: Downloaded on - 15/04/2017 21:06:05 :::HCHP ...3...
suit land. Plaintiff further averred that defendants became owner in possession of land comprising Khasra No. .
7312/5817/3 (1-6-0 bigha) and land comprising Khasra No. 5818/2 (1-11-0 bigha). Plaintiff further claimed that after partition mutation was effected in the revenue record.
Plaintiff further contended that defendants, who are of quarrelsome persons, started interfering over the suit land in the first week of July, 2004, as a result of which, he was compelled rt to file a suit for permanent prohibitory injunction.
3. Defendants by way of detailed written statement refuted the claim put-forth on behalf of petitioner by taking preliminary objections of locus standi, maintainability, estoppel, valuation and suppression of facts. On merits, defendants also denied the case of the plaintiff by stating that vide sale deed dated 23.01.1998, the defendants purchased 1/4th share of Shri Jagdish Chand alias Raj Kumar and Smt. Soma Devi in the land comprising Khasra No. 7312/5817 and Khasra No. 5818 and at the time of the sale of the aforesaid land, Shri Jagdish Chand alias Raj Kumar and Smt. Soma Devi put the defendants into specific ::: Downloaded on - 15/04/2017 21:06:05 :::HCHP ...4...
possession of land measuring 4-3-0 bighas of Khasra No. 5818, as such, they became exclusive owner in possession .
of land measuring 4-3-0 bighas of Khasra No. 5818.
Defendants claimed that they made improvements and raised the plum orchard by spending more than Rs. 3 lacs and entries in the revenue record are wrong, illegal and of void. Defendants further alleged that aforesaid land was never partitioned, rather the defendants are in peaceful, rt open and continuous exclusive ownership and possession of land measuring 4-3-0 bighas of Khasra No. 5818 at the spot and the possession of the defendants is without any interruption and even up till today defendants have not been dispossessed from the suit land by any authority. In the aforesaid background, defendants prayed for dismissal of the suit filed by the plaintiff.
4. Learned trial Court on the basis of pleadings framed following issues:-
"1.Whether the plaintiff is the exclusive owner in possession of the suit land as alleged? ...OPP
2. Whether the plaintiff is entitled to the prohibitory injunction as prayed for?
...OPP
3. Whether the plaintiff has a cause of action? ....OPP
4. Whether the plaintiff has the locus standi to sue?
...OPP ::: Downloaded on - 15/04/2017 21:06:05 :::HCHP ...5...
5. Whether the defendants have become owners of the suit property by way of adverse possession as claimed? ...OPD .
6. Whether the suit is not maintainable in the present form? ...OPD
7. Whether the plaintiff is estopped from filing the suit by his act and conduct? ...OPD
8. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? ...OPD
9. Whether this court has got no jurisdiction to hear and decide the instant suit? ...OPD
10. Relief."
of Vide judgment dated 17.5.2005 learned Trial Court decreed the suit of the plaintiff, restraining the rt defendants from interfering in the suit land, description whereof is given hereinabove.
5. Being aggrieved and dis-satisfied with the impugned judgment passed by the learned Trial Court, present appellants/defendants filed an appeal under Section 96 of the Code of Civil Procedure read with Section 21 of the H.P. Courts Act before learned Additional District Judge (Fast Track), Kullu, H.P., who vide judgment dated 4.1.2007, dismissed the appeal and upheld the judgment and decree passed by the learned Civil Judge (Jr. Division), camp at Kullu. Hence, this Regular Second Appeal before this Court.
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6. This Court on 6.11.2007 admitted the appeal on following substantial question of law Nos. 3 & 4:-
.
"Q.No.3 Whether partition proceedings entered into between plaintiff and Raj Kumar and Soma Devi vide instrument of partition dated 8.3.1999 and order dated 16.3.1999 are non est as Raj Kumar and Soma Devi were not co-owners of the land subject matter of partition on the above mentioned dates? Q.No. 4. Whether both the learned Courts below have totally mis-read the instruments of partition of and subsequent orders made by AC Ist Grade in this regard."
7. rtShri Sunil Mohan Goel, counsel representing the appellants vehemently argued that impugned judgment and decree passed by both the Courts below are bad in law and not based upon the correct appreciation of evidence adduced on record and as such deserves to be quashed and set aside. Mr. Goel strenuously argued that Courts below miserably failed to appreciate the fact that it was specifically proved on record that defendants are in exclusive possession of the land measuring 4-3-0 bighas of Khasra No. 5818 out of the suit land and is an absolute owner since 23.1.1998, meaning thereby suit of the plaintiff for permanent prohibitory injunction was not maintainable at all. As per Mr. Goel, since defendants categorically stated in written statement that they are in exclusive possession of ::: Downloaded on - 15/04/2017 21:06:05 :::HCHP ...7...
the suit land, no suit for permanent prohibitory injunction could be maintained by plaintiff in the absence of specific .
proof that he is in possession of suit land qua which defendants have allegedly interfered.
8. As per Mr. Goel, no suit for permanent prohibitory injunction could be filed/entertained, when of admittedly possession of land qua which injunction was with the defendants. Mr. Goel forcefully contended that rt learned Courts below while passing impugned judgments and decree failed to take note of the fact that suit land was purchased by defendants from Shri Jagdish Chand alias Raj Kumar and Smt. Soma Devi, who had delivered peaceful possession of land measuring 4-3-0 bighas of Khasra No. 5818 at the spot in favour of appellants/defendants and since then they are in exclusive possession of the same. He also stated that both the Courts below have failed to take note of the positive evidence led on record by the appellants/defendants that after being put into possession by aforesaid Shri Jagdish Chand alias Raj Kumar and Smt. Soma Devi, defendants made improvement and raised plum orchard on the same by spending more than 3 lacs to the ::: Downloaded on - 15/04/2017 21:06:05 :::HCHP ...8...
knowledge and notice of the respondent/plaintiff, but respondent/plaintiff at no point of time was in exclusive .
owner in possession of the suit land. Mr. Goel further contended that findings of both the Courts below to the extent that the appellants/defendants were not necessary party for the partition suit land as they had purchased the of land in the year 1998 and the partition proceedings were of the year 1992-93, are wrong since the partition was allowed rt in the year 1999, which is admitted fact on record. Mr. Goel while concluding his arguments, argued with full vehemence that Courts below have failed to appreciate that the pleadings as well as evidence adduced on record by the respective parties and both the Courts below ignored the well settled principle of law that nothing in evidence beyond pleadings can be relied upon and as such he prayed for acceptance of the appeal by setting aside the impugned judgments and decree passed by both the Courts below.
9. Shri V.S. Chauhan, Advocate, counsel representing respondent/plaintiff supported the impugned judgments passed by both the Courts below. Mr. Chauhan, while referring to the impugned judgments passed by both ::: Downloaded on - 15/04/2017 21:06:05 :::HCHP ...9...
the Courts below vehemently argued that bare perusal of the impugned judgments passed by the Courts below .
suggests that no interference of the Court is warranted especially, when it stands clearly established on record that judgments passed by both the Courts below are based upon the correct appreciation of the evidence available on record.
of Mr. Chauhan with a view to rebut the submissions having been made by counsel representing the rt appellants/defendants, that no suit for permanent prohibitory injunction could be filed without being in the possession of land qua which injunction is sought, referred to the statements made by plaintiff's witnesses wherein, they have unequivocally stated that plaintiff is owner in possession of suit land and defendants are causing interference by making an attempt to raise construction over the same.
10. Mr. Chauhan during arguments having been made by him also invited the attention of the Court to Ex.P/4, a copy of judgment passed by Senior Sub Judge, Lahaul & Spiti in Civil Suit No. 12/91, whereby suit filed by Smt. Soma Devi and Shri Jagdish alias Raj Kumar, who ::: Downloaded on - 15/04/2017 21:06:05 :::HCHP ...10...
were co-sharer with the plaintiff in the landed property was dismissed, to substantiate his argument that .
appellants/defendants were never put into possession qua Khasra No. 5818. As per Mr. Chauhan, bare perusal of the aforesaid judgment passed by learned Sub Judge, Lahaul & Spiti at Kullu, clearly suggests that Smt. Soma Devi and of Shri Jagdish alias Raj Kumar, from whom appellants/defendants purchased the land were not rt absolute owner in possession of Khasra No. 5818, as such, plea taken by the appellants/defendants that possession was delivered to them is entirely false and has been rightly rejected by the Courts below. Mr. Chauhan also invited the attention of the Court to the statement given by PW3 i.e. Mohar Singh, Kanungo, who stated that warrant of possession related to suit land was executed by him on the order of Tehsildar, whereby, land in question was partitioned. PW3 categorically stated on oath that on 13.12.1999 he delivered the possession of land bearing Khasra No. 5818/1 (4-15-0), bighas and Khasra No. 7312/5817/2 (1-6-0 bigha) to plaintiff. Mr. Chauhan also invited the attention of the Court to partition instrument i.e. ::: Downloaded on - 15/04/2017 21:06:05 :::HCHP ...11...
Ex.P/3 made available on record by plaintiff to demonstrate that property in question was partitioned and possession of .
respective share of the parties was delivered. While concluding his arguments, Mr. Chauhan forcefully contended that when it stands duly proved on record that Smt. Soma Devi and Shri Jagdish alias Raj Kumar, from of whom appellants/defendants had purchased land were not held to be absolute owner in possession of Khasra No. 5818, rt claim of appellants/defendants that he was put into possession of the aforesaid Khasra number in its entirety by Smt. Soma Devi and Shri Jagdish alias Raj Kumar deserves to be rejected, on its face value.
11. Mr. Chauhan also urged that scope of interference of this Court in the present case is very limited especially when two Courts have recorded concurrent finding of facts as well as law. To substantiate the aforesaid plea he placed reliance upon the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264.
12. I have heard learned counsel for the parties and gone through the record of the case carefully.
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13. This Court admitted the present appeal on the substantial questions of law as has been reproduced .
hereinabove. Keeping in view the text and contents of both the substantial questions of law, this Court would be taking up both the questions together for consideration.
14. In nutshell, the case of the plaintiff is that he of became owner in possession of the suit land on the basis of partition having been effected inter se the parties in the rt court of competent jurisdiction. It clearly emerged from the record that prior to partition effected vide order dated 16.3.1999 Ex.DW/2B, passed by AC Ist Grade, Kullu, plaintiff and defendants were joint owner in possession of the suit land. After aforesaid partition order passed by AC Ist Grade, Kullu, plaintiff became owner in possession of the land measuring 4-15-0 bighas bearing Khasra No. 5818/1 and land measuring 1-6-0 bighas bearing Khasra No. 7312/5817/2 situated at Phati Shilihar, Kothi Kotkandi, Tehsil & District Kullu, H.P. Similarly, defendants also became owners in possession of the land measuring 1-6-0 bighas comprising Khasra No. 7312/5817/3 and land measuring 1-11-0 bighas comprising Khasra No. 5818/2.
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Pursuant to aforesaid partition proceedings, necessary mutation was also effected in respect of land as mentioned .
above, however, defendants started undue interference in July, 2004, compelling plaintiff/respondent to file suit for permanent prohibitory injunction restraining defendants from interfering in the suit land. Defendants resisted the of claim of the plaintiff by stating that they are in possession of land measuring 4-3-0 of Khasra No. 5818, in an exclusive rt manner and plaintiff has no right, whatsoever, to claim any part of the same. To substantiate his aforesaid stand, appellants/defendants stated that they have purchased this piece of land from Shri Jagdish alias Raj Kumar and Smt. Soma Devi vide sale dated 23.1.1998. Defendants claimed that at the time of purchase of land from aforesaid persons, they were also delivered specific possession of land measuring 4-3-0 bighas comprising Khasra No. 5818 and as such they are in the exclusive possession of the aforesaid land. Defendants also claimed that they spent sufficient amount on the land in order to raise orchard and the revenue entries to the contrary are wrong, illegal and void.
But, interestingly this Court while examining the aforesaid ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...14...
stand taken by the defendants/appellants was unable to lay its hand on any document available on record suggestive of .
the fact that they were put into possession of land measuring 4-3-0 bigha comprising Khasra No. 5818 by Shri Jagdish alias Raj Kumar and Smt. Soma Devi, who allegedly sold the land measuring 1-5-15 bighas out of Khasra No. of 7312/5817 and land measuring 1-11-0 bighas being 1/4th share out of land measuring 6-6-0 bighas in Khasra No. rt 5818. To the contrary, plaintiff placed on record judgment Ex.P4, suggestive of the fact that Smt. Soma Devi and Shri Jagdish alias Raj Kumar, from whom defendants had purchased land as referred above, filed suit before Senior Sub Judge, Lahaul & Spiti at Kullu to the effect that they are owner in possession of Khasra No. 5818, but aforesaid plea of Smt. Soma Devi and Shri Jagdish alias Raj Kumar was rejected outrightly by the learned Senior Sub Judge vide judgment dated 3.6.1997. Hence, contention put-forth on behalf of appellants/defendants that they were put into specific possession of land measuring 4-3-0 bighas of Khasra No. 5818, by Smt. Soma Devi and Shri Jagdish alias Raj Kumar from whom defendants have purchased ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...15...
land vide sale deed dated 23.1.1998 has been rightly rejected by the Courts below.
.
15. Since, Smt Soma Devi and Shri Jagdish alias Raj Kumar were not held to be in possession of Khasra No. 5818 by the Court of Senior Sub Judge, Lahaul & Spiti, which was decided on 6.3.1997, it is not understood how aforesaid of persons could put appellants/defendant in possession of Khasra No. 5818 in its entirety vide sale deed dated rt 23.1.1998, as such, this Court sees no force in the contention put-forth on behalf of counsel representing the appellants/defendants and accordingly the same is rejected.
But, in this regard perusal of evidence adduced on record by the plaintiff clearly establishes that he became owner in possession of land measuring 4-15-0 bighas bearing Khasra No. 5818/1, Khata Khatauni No. 1510/2126 and land measuring 1-6-0 bighas bearing khasra No. 7312/5817, khata khatauni No. 1509/2125 as depicted in the jamabandi for the year 1998-99 situated at Phati Shilihar, Kothi Kotkandi, Tehsil & District Kullu, H.P. Pursuant to partition order dated 16.3.1999 i.e. Ex.DW2/A, passed by Assistant Collector Ist Grade, Kullu, PW3 Mohar Singh, ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...16...
Kanungo executed warrant of possession relating to suit land. PW3 Mohar Singh, Kanungo, specifically stated on .
oath that warrant of possession relating to suit land was executed by him on the order of Tehsildar and land in question was partitioned as per order. It clearly emerges from the statement of PW3 that on 13.12.1999, he delivered of the possession of land measuring 4-15-0 bighas comprising Khasra No. 5818/1 and land measuring 1-60 bighas rt bearing Khasra No. 7312/5817 to plaintiff, namely, Inder Dev. Similarly, this Court had an occasion to peruse instrument of partition placed on record by the plaintiff to demonstrate that suit land was partitioned and delivery of possession of the land to the respective parties was delivered pursuant to issuance of warrant of possession by Assistant Collector Ist Grade, Kullu. At this stage, contention put-forth on behalf of counsel representing the appellants/defendants that the Courts below gave undue credence to the statement of PW3 Mohar Singh, Kanungo, who nowhere stated in his statement that he delivered warrant of possession in the presence of some independent parties, may be examined. As per Mr. Goel, bare perusal of ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...17...
statement of PW3 Mohar Singh, Kanungo suggests that he never delivered warrant of possession in presence of parties .
and, as such, version put-forth on behalf of him could not be relied by the Courts below in the absence of some independent witnesses corroborating his statement with regard to delivery of possession. The aforesaid contention of put-forth on behalf of appellants/defendants deserves to be rejected outrightly solely for the reason that bare perusal of rt instrument of partition Ex.P3 clearly suggests that partition was effected on 8.4.1999 by Assistant Collector Ist Grade, Kullu and pursuant to that parties to the partition proceedings were put to possession qua the land by warrant of possession. Moreover, defendants have not been able to extract anything contrary in cross-examination conducted on PW3, who categorically stated in his examination-in-
Chief that pursuant to issuance of warrant of possession, he delivered possession of suit land to the plaintiff as well as other co-sharers. Rather, careful perusal of cross-
examination conducted on this witness, nowhere suggests that appellants/defendants were able to shatter the testimony of PW3, who was candid enough to state that ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...18...
pursuant to warrant of possession issued by Tehsildar, he put plaintiff in the possession of the land measuring 4-15-0 .
bighas comprised in Khasra No. 5818/1.
16. Apart from above, appellants/defendants instead of pointing out discrepancies, if any, in the evidence adduced on record by the plaintiff, was expected to lead of positive evidence on record to prove that plaintiff was never put into possession pursuant to issuance warrant of rt possession issued by Tehsildar after conclusion of partition proceedings. Rather conjoint reading of statements given by PW1, PW2 and PW3 leaves no doubt that joint land was partitioned by the revenue authorities and the possession of the which was delivered to plaintiff by PW3 pursuant to warrant of possession issued by Tehsildar. Careful perusal of the cross-examination conducted on these aforesaid plaintiff witnesses, clearly suggests that defendants were not able to shatter the testimony of this aforesaid plaintiff witnesses, who unequivocally stated that after passing of order dated 16.3.1999 by Assistant Collector Ist Grade, plaintiff was put into possession of Khasra No. 5818 by PW3. Moreover, PW3, in his cross-examination categorically ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...19...
denied the suggestion put to him by the defendants that actual possession was not delivered to the plaintiff. Whereas .
statement of DW3 Lekh Ram itself falsifies the stand taken by defendants that possession of Khasra No. 5818 was delivered to him by Smt. Soma Devi and Shri Jagdish alias Raj Kumar on 23.1.1998 and since then he is in possession of of the suit land, because as has been discussed above, when Smt. Soma Devi and Shri Jagdish alias Raj Kumar rt were not held to be in possession by the learned Senior Sub Judge in Civil Suit filed by Smt. Soma Devi and Shri Jagdish alias Raj Kumar, where was the occasion for them to put appellants/defendants in possession of the land as claimed by the appellants/defendants.
17. Similarly, DW1 Lekh Raj while making statement before the Court below stated that neither suit land has been partitioned nor possession has been disturbed.
Moreover, close scrutiny of the cross-examination conducted on DW1suggests that he did not make truthful disclosure to the Court while making his statement because in his cross-examination he stated that prior to 1998 his ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...20...
father was in possession of suit land and thereafter he became owner of the suit land on the basis of sale deed. If .
the statement given by DW1 is read in its entirety, it clearly emerges that defendant No. 1 has not taken consistent stand rather he has taken contrary please with regard to sale and possession of the suit land. Though, DW1 Lekh Raj of while making statement in his examination-in-chief, feigned ignorance with regard to partition proceedings conducted by rt Assistant Collector Ist Grade, Kullu, but in his cross-
examination he categorically stated that he had not filed appeal against the partition, meaning thereby, property in question stand partitioned in accordance with law and parties were put to possession of respective shares in terms of order passed by Assistant Collector Ist Grade, Kullu, in the partition proceedings. This Court after perusing instrument of partition dated 8.4.1999 i.e. Ex.P3 and order dated 16.3.1999 is fully convinced that suit land was partitioned between the co-sharers strictly in terms of Section 122 of H.P. Land Revenue Act and pursuant to order dated 16.31999, plaintiffs were put into possession qua land measuring 4-15-0 bighas bearing Khasra No. ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...21...
5818/1 and land measuring 1-6-0 bighas bearing Khasra No. 7312/5817/2. Perusal of instrument of partition dated .
8.3.1999, clearly suggests that Smt. Soma Devi and Shri Jagdish @ Raj Kumar were impleaded as party in the partition proceedings since they were recorded as joint owner in the revenue record at the time of initiation of of partition proceedings in the year 1992. It is admitted fact that appellants/defendants purchased share of land from rt Shri Jagdish @ Raj Kumar and Smt. Soma Devi in the year 1990, as such, there was no occasion for plaintiff to implead them as a party in partition proceedings in the year, 1993.
When admittedly partition proceedings were initiated for the partition of land jointly owned by plaintiff and other co-
owners and Smt. Soma Devi and Shri Jagdish alias Raj Kumar were arrayed as party to partitioned proceedings, appellant-defendants cannot be allowed to claim that partition proceedings were conducted at their back because admittedly after the purchase of the suit land, appellants/defendants entered into the shoe of Smt. Soma Devi and Shri Jagdish Chand @ Rajkumar. Hence, this Court is of view that there is no illegality and infirmity in the ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...22...
instrument of partition dated 8.3.1999 passed by Assistant Collector, pursuant to which plaintiff was put into the .
possession of the suit land vide warrant of possession 16.3.1999. Moreover, perusal of Ex.P3 i.e. instrument of partition, nowhere suggests that during partition proceedings said Smt. Soma Devi and Shri Jagdish alias Raj of Kumar ever disclosed factum of sale, if any, made in favour of the appellants/defendants with regard to land measuring rt 4-3-0 bighas comprised in Khasra No. 5818. Since, Smt. Soma Devi and Shri Jagdish alias Raj Kumar were recorded as a joint owners in the revenue record pertaining to year, 1993, when the partition proceeding was initiated, this Court sees no illegality and irregularity in impleading Smt. Soma Devi and Shri Jagdish alias Raj Kumar as a party respondents in the partition proceedings. Careful perusal of the pleadings as well as evidence led on record by both the parties, clearly suggests that vide instrument of partition dated 8.3.1999, joint land owned by plaintiff as well as Smt. Soma Devi and Shri Jagdish alias Raj Kumar, who were recorded as joint owners, were ordered to be partitioned vide order dated 16.3.1999. Plaintiff was put into possession of ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...23...
land measuring 4-15-0 bighas baring Khasra No. 5818/1 and land measuring 1-6-0 bighas bearing Khasra No. .
7312/5817/2, as such, this Court sees no force in the contention put-forth by counsel representing the appellants/defendants that Courts below have misread the instrument of partition while passing impugned judgment.
of
18. In view of the detailed discussion made hereinabove, this Court sees no merit in the present appeal rt and accordingly substantial questions of law as referred to hereinabove are answered accordingly.
19. While exploring the answer to the substantial questions of law referred to hereinabove, this Court perused entire pleadings and record, it clearly emerges that though appellants/defendants while refuting the claim of the plaintiff stated that suit for permanent prohibitory injunction could not be filed by plaintiff since possession of suit land was with him. But as has been discussed in detail, appellants/defendants at no point of time were able to prove on record that they are in possession of the suit land.
Though by placing reliance on the sale deed dated ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...24...
23.1.1998, defendants made an attempt to demonstrate that at the time of sale, they were put into possession of suit .
land by Smt. Soma Devi and Shri Jagdish alias Raj Kumar but no document whatsoever was placed on record to substantiate the plea, whereas plaintiff by leading cogent and convincing evidence was successful in proving that after of the partition of the land, which was jointly owned and possessed by plaintiff and defendants, he was put into rt possession of land measuring 4-15-0 bighas baring Khasra No. 5818/1 and land measuring 1-6-0 bighas bearing Khasra No. 7312/5817/2. Plaintiff specifically placed on record judgment Ex. P4 to prove that at no point of time defendants were put into exclusive possession of Khasra No. 5818 as claimed by them because suit filed by Smt. Soma Devi and Shri Jagdish alias Raj Kumar was dismissed by learned Senior Sub Judge, Lahaul & Spiti rejecting their claim that they are exclusive owner of the Khasra No. 5818.
Moreover, written statement filed by the defendants nowhere suggest that claim of the plaintiff that he is in exclusive possession of Khasra No. 5818 was ever refuted, rather careful perusal of the averments made in the written ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...25...
statement suggest that though defendants claimed themselves to be in possession of Khasra No. 5818, but .
nowhere specifically denied the claim of the plaintiff that he is in possession of Khasra No. 5818. Rather perusal of the pleadings suggests that defendants took contradictory pleas to prove their case. At the first instance, defendants claimed of to be owner in possession of the suit land in term of sale deed executed in their favour by Smt. Soma Devi and Shri Jagdish rt alias Raj Kumar, thereafter, they claimed themselves to be owner in possession by way of adverse possession. But admittedly, on both counts, as referred to above, defendants were unable to substantiate their pleas of becoming owner of suit land either by adverse possession or on the basis of sale deed, by leading cogent and convincing evidence. DW1 though stated that he became owner of the suit land by way of adverse possession but statement made by him nowhere suggests that he stated anything with regard to continuous possession qua suit land.
20. Consequently, in view of detailed discussion made hereinabove, this Court has no hesitation to conclude that judgments passed by both the Courts below are based ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...26...
upon the correct appreciation of record/evidence available on record. To answer the substantial questions, reproduced .
hereinabove, this Court traveled through entire evidence led on record by the parties to the lis and it can be safely concluded that both the Courts below have rightly returned the concurrent findings of facts as well as law after dealing of with the evidence on record meticulously. Hence this Court is of the view that this is not a fit case wherein exercise of rt powers/jurisdiction under Section 100 CPC, concurrent findings returned by both the Courts below can be upset, especially when the defendants have failed to prove that impugned judgments are perverse. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by Hon'ble Apex Court in Laxmidevamma's case supra, wherein the Court has held as under:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under ::: Downloaded on - 15/04/2017 21:06:06 :::HCHP ...27...
Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse.
.
In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
(p.269)
21. Hence, in view of the aforesaid discussion, this of Court is persuaded to conclude that the impugned judgments passed by both the Courts below are based on proper appreciation of the evidence, be it ocular or rt documentary on the record and, as such, substantial questions of law, framed above, are answered accordingly.
Hence, present appeal fails and the same is, accordingly dismissed.
22. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.
(Sandeep Sharma )
August 29, 2016 Judge
(sanjeev)
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