Himachal Pradesh High Court
Sh. Prem Lal vs Sh. Sunder Ram And Others on 21 July, 2023
Author: M.S. Ramachandra Rao
Bench: M.S. Ramachandra Rao
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 92 of 2018 Reserved On: 23.06.2023 Decided on: 21. 07.2023 .
____________________________________________________ Sh. Prem Lal ....Appellant Versus Sh. Sunder Ram and others ....Respondents _____________________________________________________ Coram Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice Whether approved for reporting? 1 For the appellant: Mr. Romesh Verma, Senior Advocate with Mr. Hitesh Thakur, Advocate.
For the respondents: Mr. P.S Chandel, Advocate, for respondent no.1.
Respondents No. 2 to 5 ex-parte.
M.S Ramachandra Rao, Chief Justice The appellant in this RSA is the 1st defendant in Civil Suit RBT No.37/1/11/10 on the file of the Civil Judge (Jr. Divn.) Court No.3, Ghumarwin, District Bilaspur, Himachal Pradesh.
2) The first respondent herein is the plaintiff and the other respondents are defendants no. 2 to 5.
3) The parties will henceforth be referred to as per array in the suit.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 21/07/2023 20:37:36 :::CIS 2The case of the plaintiffs
4) The plaintiff had filed the said suit against the defendants for relief of declaration, .
partition and permanent prohibitory injunction in respect of land measuring 1-1 bighas comprised in Khasra No. 55 (new) 1341/80 (old), Khata no. 144 min/khatoni no. 180 situated in village Ladhyani, Pargna-Ajmerpur, Tehsil Ghumawain, District Bilaspur, Himachal Pradesh.
5) The plaintiff contended that he and defendants no. 1 and 2 are the co-
owners in joint possession over the suit land by virtue of oral sale dt.10.06.1960;
entries in the revenue record showing defendants no. 3 to 5 as owners are illegal, null and void; that the father of the plaintiff and defendants no. 1 and 2 late Sh.
Narainu Ram had purchased the suit land under the said oral sale for Rs.80/- from late Sh. Prabhu Ram S/o Sh. Ram Ditta, father of defendants no. 3 to 5 and had thus acquired title to the suit land.
6) According to the plaintiff, after the death of late Sh. Narainu Ram, the suit land devolved upon the plaintiff and defendants no.1 and 2 under the Law of succession, but the revenue entries in Colum 4 regarding ownership erroneously continued to be in the name of defendants no. 3 to 5, though, in column 5 dealing with possession, the revenue entries were recorded in the name of the plaintiff and defendants no.1 and 2. According to him in column 9 of the Jamabandi, reason for ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 3 entry was recorded as "BA BABAJAH BAI", which according to the plaintiff meant by virtue of sale.
7) According to the plaintiff, despite acquisition of right of ownership by virtue of .
oral sale, the same was not reflected in the revenue record and so he is entitled for declaration of ownership by virtue of said oral sale and in the alternative by virtue of adverse possession as the possession of the plaintiff alongwith defendants no. 1 and 2 over the suit land is open, hostile, continuous, un-interrupted and in knowledge of the General Public.
8) He also contended that earlier he had filed a Civil Suit bearing no.472/1 of 1997 for relief of declaration on the basis of adverse possession, but had not taken the plea of oral sale and the said suit was dismissed as withdrawn under Order 23 Rule 1 (3) of the Code of Civil Procedure, 1908 on 04.11.2009 at the stage of RSA being RSA no. 693 of 2008, and liberty was granted to him to withdraw the suit with permission to file a fresh suit on the same cause of action subject to paying cost of Rs.10,000/- to the defendants, which payment shall be made before filing of the fresh suit.
9) He averred that cause of action accrued to him on 02.11.1997 when defendants no.
1 and 2 threatened to raise construction over the suit land more than their share which is only 1/3rd i.e. land measuring 0-7 biswa, so as to dispossess the plaintiff from the suit land ; and that defendants no. 3 to 5 were also threatening to dispose ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 4 off the suit land on the basis of wrong revenue entries and so he sought relief of permanent injunction and partition.
The stand of the defendants .
10) Defendants no. 2 and 3 to 5 filed written-statement.
11) In the written-statement filed by defendants no. 2 and 3 to 5, the entire contents of the plaint are admitted.
12) However, in the written-statement of defendant no.1, he raised a plea that inspite of the order passed by the High Court of Himachal Pradesh on 04.11.2009 permitting the plaintiff to withdraw the suit and file a fresh suit, the fresh suit was not filed within 60 days from that date, that the instant suit was filed on 04.01.2010 after depositing the amount of Rs. 10,000/- on 14.01.2010 violating the order of the High Court.
13) He denied that he and the plaintiff were owners in possession of the suit land under the sale deed dt. 10.06.1960 and submitted that father of the plaintiff and defendants no.1 and 2 never purchased the suit land from Prabhu Ram, father of defendants no. 3 to 5, for consideration of Rs.80/- on 10.06.1960.
14) It is submitted that though Narainu Ram, their father, was in possession of the suit land , but he never became owner of the suit land and no Rapat Rojnamcha dt.
10.06.1960 was entered in the patwar Circle Ladhyani.
15) He contended that the plaintiff was not entitled for possession by dismantling ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 5 construction of 1st defendant since Khangi Bant (private partition) was effected on the spot by Sh. Narainu Ram and parties to the suit i.e. legal heirs of Sh. Narainu Ram are in possession as per the said partition.
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16) Defendants no. 2 and 5 were proceeded ex parte in the trial Court vide order dt.
20.03.2015.
Issues framed in the suit
17) Before the trial Court, the following issues were framed:-
(i) Whether plaintiff is entitled for relief of declaration, as prayed for?...OPP r
(ii) Whether plaintiff is entitled for relief of injunction, as prayed for?...OPP
(iii) Whether plaintiff is entitled in alternative for relief of declaration to have become owners in possession of suit land by law of adverse possession, as prayed for?...OPP
(iv) Whether suit of the plaintiff is barred by limitation as alleged?...OPD
(v) Whether suit of the plaintiff is bad for mis-joinder, non-joinder of necessary parties, as alleged?...OPD
(vi) Whether suit of the plaintiff is not properly valued for purpose of Court fee and jurisdiction, as alleged?...OPD ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 6
(vii) Whether suit of the plaintiff is not maintainable in present form, as alleged?...OPD
(viii) Whether plaintiff has got no cause of action to file the present suit, as alleged?...OPD .
(ix) Relief.
18) Plaintiff examined PW-1 and marked Ex.PW-1/A, Ex.P-1 to P-9 and Ex.PA.
19) Defendant no.1 had examined himself as DW-2 and 4th defendant as DW-3 and they marked Ex.DW-1/A and DW-2/A. The judgment of the Trial Court
20) Vide judgment dt. 13.01.2016, the trial Court dismissed the suit of the plaintiff.
21) The trial Court held that the onus was on the plaintiff to prove the oral sale dt.
10.06.1960. Though the Jamabandis Ex.P-1 to P-7 indicate the possession of Narainu Ram and after him, the possession of plaintiff and defendants no. 1 and 2, and though the Jamabandis mention "BA BABAJH BAI" which means 'by virtue of sale', no declaration can be granted merely on the basis of revenue record such as Jamabandis.
22) It also found fault with the plaintiff for not filing the revenue record of the period 1960 to 1962. It held that the plaintiff, having stated in cross-examination that Rapat Rojnamcha qua the alleged oral sale exists, which was signed by Narainu Ram and Khayali Ram, he did not produce it and so adverse inference is to be drawn against him.
::: Downloaded on - 21/07/2023 20:37:36 :::CIS 723) It referred to the plea of defendants no. 3 to 5 in the written-statement, admitting the execution of the oral sale dt. 10.06.1960, but held that in support of the said plea neither defendants no. 3 to 5 nor any counsel appearing on behalf of .
defendants no. 3 to 5 were summoned; that counsel for defendants no. 3 and 4 told the Court that no written-statement was ever filed by defendants no.3 and 4 earlier;
perusal of the written-statement dt. 12.03.2010 shows that it contains signatures of defendants no.3 to 5 and their counsel. It observed that the factum of signatures on written-statement was not denied by defendants no. 3 and 4, but they contended that the plaintiff on false pretext obtained the signatures of defendants no.3 to 5.
24) However, it held that it had no option but to rely upon the existing written-
statement filed on their behalf, but inspite of the same, the plaintiff is not entitled for declaration since Ex.P-9 Jamabandi for the year 1955-1956 shows that one Ram Saran etc. were owner of the suit land and late Prabhu Ram, the predecessor-
in-interest of defendants no. 3 to 5, was merely an occupancy tenant. It observed that there is no pleading on record to show as to when and how Prabhu Ram, being occupancy tenant in the suit land, became owner of the suit land in question.
It observed that Prabhu Ram not being owner of the suit land was not competent to transfer the suit land by way of sale to late Narainu Ram.
25) It further held that assuming that Prabhu Ram became owner of the suit land by virtue of operation of the H.P Tenancy and Land Reforms Act, 1972, still he was ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 8 not competent to transfer the suit land till lapse of statutory period of 20 years.
26) It observed that the plea of adverse possession raised by the plaintiff had already been decided in the negative against him in the earlier suit filed by him which .
decision was also upheld by the Additional District Judge and so he is barred from taking the said plea of adverse possession in the present suit on the basis of issue estoppel and res judicata. It further held that plea of adverse possession and title by virtue of oral sale, are self contradictory.
27) It observed that the plaintiff was not the owner in possession of the suit land, that injunction cannot be granted against the real owner at the instance of a person in unlawful possession because it's an equitable relief and therefore he is not entitled for relief of injunction as well.
28) Challenging the same, the plaintiff preferred Civil Appeal No.15/13 of 2016 before the District Judge, Bilaspur, Himachal Pradesh.
The decision of the first Appellate Court
29) Vide judgment and decree dt. 23.12.2017, the said appeal was allowed, the judgment of the trial Court was set aside and the suit was decreed and a preliminary decree of partition was passed in favour of the plaintiff and against the defendants declaring that each of them have 1/3rd share therein the suit scheduled property. Decree for permanent prohibitory injunction was also passed restraining defendants no.1 and 2 from raising any sort of construction over the suit land till ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 9 the suit land remains joint. Defendants no. 3 to 5 were also restrained from alienating the suit land on the basis of wrong and illegal entries in the revenue record.
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30) The lower appellate Court held that though the 1st defendant had disputed that their father Narainu Ram purchased the suit land from Sh. Prabhu Ram, but Narainu Ram admittedly remained in possession of the suit land and after his death plaintiff and defendants no.1 and 2 came into possession over the suit land. It held that the case pleaded by defendant no.1 is vague since he failed to plead and prove about the capacity of Narainu Ram in possessing the suit land during his lifetime and his own capacity over the suit land.
31) It then referred to the evidence of DW-2 i.e the 4th defendant, who is son of Prabhu Ram, and noted that he took a different stand in the Chief examination to what was stated in the written-statement. But in cross-examination by the plaintiff this witness had admitted the case of the plaintiff that plaintiff and defendants no.1 and 2 had remained in possession of the suit land during the lifetime of Prabhu Ram and that Prabhu Ram never remained in possession of the suit land.
32) It held that even the 1st defendant had admitted the case of the plaintiff that the suit land is jointly possessed by his three brothers i.e. the plaintiff and defendants no. 1 and 2; that separate houses of the plaintiff and defendants no. 1 and 2 were also situated over the suit land; and that on 10.06.1960 Prabhu Ram had handed over ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 10 the possession of the suit land to Sh. Narainu Ram, who had also raised construction over the suit land.
33) It held that though the 1st defendant raised a new case that suit land had been .
partitioned in a private partition on 20.05.1979, this is not corroborated by any evidence such as revenue record.
34) It then placed reliance on the revenue record which showed that Prabhu Ram was recorded as owner of the suit land, but possession of Narainu was recorded as exclusive possession and the nature of the suit land was recorded as "Gair Mumkin Abadi" to the extent of 15 biswas and remaining 6 biswas land is recoded as "Banjar kadeem". It also noted that in column no. 9, the capacity of Narainu Ram is recorded on the basis of sale, and that after the death of Prabhu Ram, mutation was made in favour of defendants no. 3 to 5, and after the death of Narainu Ram the name of the plaintiff and defendants no. 1 and 2 was recorded in the column of possession.
35) It therefore concluded that Prabhu Ram sold the suit land to Narainu Ram by way of oral sale dt. 10.06.1960 and also handed over actual and physical possession thereof to Narainu Ram; and that at the time of the oral sale on 10.06.1960, the Transfer of Property Act,1882 was not applicable in the area; and so the oral sale was valid and Narainu Ram had become owner in possession of the suit land.
36) It opined that this finding is corroborated by the written-statement of defendants ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 11 no. 3 to 5.
37) It therefore held that after the death of Narainu Ram, the plaintiff and defendants no.1 and 2, being sons, succeeded to the said property in equal shares and revenue .
entries recording the names of defendants no. 3 to 5 in the column of ownership are wrong, erroneous, null and void in view of the sale by their father Prabhu Ram to Narainu Ram.
38) It held that Narainu Ram remained in actual and physical possession of the suit land and also raised construction over the suit land and the plaintiff and defendants no.1 and 2 have become joint owners in possession of the suit land on the basis of succession and there is no evidence of prior partition as claimed by defendant no.1.
The RSA
39) Challenging the same, this RSA is filed.
40) In the RSA, notices were issued, the judgment of the appellate Court was stayed and the plaintiff was restrained from changing the nature of the suit land, the revenue entries and alienating and encumbering the suit property till further orders on 13.03.2018.
41) Respondents no. 2 to 5 were served, but did not put in appearance through counsel, and so were set ex pate on 24.04.2018.
42) Counsel entered appearance on behalf of the plaintiff on that day.
::: Downloaded on - 21/07/2023 20:37:36 :::CIS 1243) This RSA was admitted on 13.06.2018 and the following substantial questions of law were framed:-
(i) Whether present suit is not maintainable because it has not been filed as per .
grant of permission granted by Hon'ble High Court on 04.11.2009 in RSA No.693/2008 because suit was filed on 04.01.2010 and cost of Rs.10,000/- as imposed was required to be deposited before 04.01.2010 but it was deposited on 14.01.2010?
(ii) Whether the Hon'ble High Court had granted permission to file fresh suit on the same cause of action which was involved in suit No.472/1 of 1997 i.e. on the plea of adverse possession, therefore, subsequent suit on the plea of purchase of suit land by Ld. Sh. Narinu is not maintainable being barred by limitation?
(iii) Whether present suit is time barred and hit by provisions of Order 2 Rule 2 CPC and could not be maintained on the plea of adverse possession?
44) Thereafter an application for early hearing was moved being CMP no. 10504 of 2022 on the pretext that the plaintiff was more than 70 years old and that application was allowed and appeal was directed to be listed on 23.11.2022.
45) The matter was heard on 23.06.2022 and judgment was reserved.
The consideration by the Court
46) As regards the 1st substantial question of law framed by this Court on the question i.e., whether the instant suit was filed within the period granted by the High Court in its order dt. 04.11.2009 in RSA no. 693 of 2008, and whether the cost imposed was deposited before the date of filing of the suit or later, though such a plea appears to be raised in the written-statement by the appellant/1st defendant, the judgments of the trial Court as well as the 1st Appellate Court do not indicate that ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 13 any argument on those aspects was addressed before the said Courts.
Therefore, it has to be presumed that this plea was given up by the appellant/1st defendant before the trial Court and the first appellate Court and he .
cannot therefore be permitted to canvas the said point in this Court in the RSA.
47) Coming to the 2nd substantial question of law i.e., as to whether the plaintiff/1st respondent could have raised the plea of purchase of the suit land by Narainu Ram when in the previous suit he had only raised the plea of adverse possession, and when the High Court had only granted permission to file fresh suit on the same cause of action which was involved in Civil Suit no. 472/1/1997, and also whether the fresh suit is barred by limitation is concerned, even this contention had not been advanced either before the trial Court or the first appellate Court by the appellant/1st defendant.
Moreover the pleadings in the previous suit no.472/1/1997 have not been placed on record or marked in the trial Court by the appellant/1st defendant to see what was the cause of action in the previous suit and what was the cause of action in the current suit, so that it can be compared with the cause of action in the instant suit.
Also a perusal of the order dt.04.11.2009 passed in RSA no. 693 of 2008 shows that in that order it was observed as under:-
"It was submitted by the learned counsel for the applicant that the plaintiff could not take the plea in regard to the oral sale having been effected in favour of his ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 14 father and there are revenue entries also, but these facts were not taken into account by the counsel for the plaintiff at the time of filing of plaintiff and accordingly, the suit was filed for ownership by ay of adverse possession only. It was alleged that this was a bonafide mistake and the plaintiff should be permitted .
to file a fresh suit in respect of the same subject matter on the same cause of action.
.....................................Since no limitation has been fixed on exercise of the powers for withdrawal of the suit and the point considered as that a fact was not pleaded in the plaint, which now the plaintiff wanted to plead by filing a fresh suit. There is nothing to show that a new point cannot be allowed to be taken at the time of withdrawal of the suit with liberty to file fresh suit on the same cause of action and the above decision clearly applies to the present facts.
In view of the above, it is clear that the applicant/appellant is entitled to withdraw the suit and permission has to be given to file a fresh suit on the same cause of action subject to deposit of Rs.10,000/- as costs payable to defendants, which shall be paid by the applicant/appellant before filing the fresh suit. The applicant/appellant may file fresh suit within a period of sixty days from today. The application is accordingly allowed."
48) Thus, it appears that this Court had permitted the plaintiff to raise a new point also while filing a fresh suit on the same cause of action including the point regarding oral sale in favour of his father.
49) Even the point of bar of limitation mentioned in the substantial question of law framed by this Court was not argued in the trial Court or in the first appellate Court and even before this Court by the counsel for the appellant/1st defendant, and therefore I do not find any merit in this contention also.
50) As regards question no. 3 where again the plea of bar of suit land is mentioned, for ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 15 the very same reasons, the said plea is not accepted.
51) As regards the point whether the instant suit is hit by the provisions of Order II Rule 2 CPC is concerned, in view of the order passed on 04.11.2009 in RSA no.
.
693 of 2008 that a new plea can be taken regarding oral sale by the plaintiff in the fresh suit, there is no merit is this contention as well.
52) As regards the question as to whether the suit can be maintained on the plea of adverse possession is concerned, though normally the Courts have held that the plea of title and adverse possession are mutually inconsistent with each other, in the instant case the plaintiff's contention was that he and defendants no. 1 an 2 were co-owners in joint possession over the suit land which is said to have been acquired on 10.06.1960 through an oral sale by their father Narainu Ram from defendants no. 3 to 5; and the plea of adverse possession is set up by the plaintiff qua defendants no. 3 to 5 and not against defendant no.1.
53) Admittedly defendants no.3 to 5 filed a written-statement admitting the claim about oral sale by the father of the defendants no. 3 to 5 by name Prabhu Ram on 10.06.1960 in favour of Narainu Ram and handing over possession to Narainu Ram. There was therefore no necessity for the appellant to prove the alternative case of adverse possession set up against defendants no. 3 to 5 and he has to be taken as having abandoned the said plea qua defendants no. 3 to 5.
54) I may point out that even the 1st defendant admitted that Narainu Ram was in ::: Downloaded on - 21/07/2023 20:37:36 :::CIS 16 possession of the suit land though he denied the acquisition of title by Narainu Ram under the oral sale of 10.06.1960.
55) But, to justify the exclusive claim of title, the 1st defendant had set up the plea of .
prior partition amongst plaintiff, himself and 2nd defendant which indicates that even according to him the property was jointly owned by three of them after the death of Narainu Ram. Since such prior partition was not proved, the plea of defendant no.1 that suit schedule property is his exclusive property cannot be accepted.
56) For the aforesaid reasons, I do not find any merit in the appeal and the same is accordingly dismissed. All pending application(s) stands disposed of accordingly.
No costs.
( M.S Ramachandra Rao ) Chief Justice July 21, 2023 (priti) ::: Downloaded on - 21/07/2023 20:37:36 :::CIS