Himachal Pradesh High Court
Harish Kumar vs Manorama Devi & Others on 16 June, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
.
RSA No. 228 of 2014
Decided on : 16.6.2016
Harish Kumar .....Appellant.
Versus
Manorama Devi & others. ....Respondents.
Coram:
of
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
rt
For the Appellant: Ms. Leena Guleria, Advocate.
For the Respondents: Mr. H.K Paul, Advocate.
Sureshwar Thakur, Judge (oral)
The instant appeal stands directed against the impugned judgment and decree rendered by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 95-P/XIII/2012 on 29.7.2013, whereby it while affirming the judgment and decree rendered on 31.12.2009 by the learned Civil Judge (Junior Division) Palampur, District Kangra, H.P. in Civil Suit No. 130/2007, dismissed the appeal preferred by the defendant/appellant herein.
1Whether reporters of the local papers may be allowed to see the judgment?
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2. The brief facts of the case are that the plaintiffs/ .
respondents (for short the "plaintiffs") are owners of the land comprised Khata No. 355, Khatauni No. 593, Khasra No. 577, land measuring 0-00-48 hectares situated at Mohal and Mauja of Dadh Jhikla, Tehsil Palampur, District Kangra H.P. (for short "the suit land"). It is averred that the suit land is lying vacant and was in their rtpossession. However on 19.6.2007 the defendant/appellant herein (for short "defendant") started raising shed on the suit land. When the defendant was resisted from doing so then he claimed that his possession over the suit land is duly recorded in the revenue records. The plaintiffs thereafter approached the Patwari Halka and obtained revenue record on 25.6.2007 and were surprised to know that the defendant has illegally got himself recorded in the column of possession of the suit land in the revenue records. It is averred that possession of the defendant over the suit land is unlawful and illegal. Hence the present suit.
3. The defendant contested the suit and filed written-
statement. He in his written-statement has taken preliminary ::: Downloaded on - 15/04/2017 20:36:18 :::HCHP ...3...
objections inter alia maintainability, cause of action, estoppel, .
locus standi, valuation and plaintiffs having not approached the Court with clean hands. On merits, the suit has been contested by setting up the title on the basis of his alleged of adverse possession. As per the defendant, he is in possession of the suit land from 2.12.1975 and his possession over the suit land rt was never objected to by anyone and now his possession has ripened into ownership on the basis of adverse possession. On all these submissions, the defendant prayed for the dismissal of the suit.
4. The plaintiffs filed a replication to the written-
statement filed by the defendant and reasserted the stand taken in the plaint.
5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties at contest:-
"1. Whether the plaintiff is owner of the suit land, as alleged? OPP.
2. Whether the plaintiff is entitled for decree of possession, as prayed for? OPP
3. Whether the defendant has become owner of the suit land by way of adverse possession? OPD ::: Downloaded on - 15/04/2017 20:36:18 :::HCHP ...4...
4. Whether the defendant is in possession of the suit land .
since 2.12.1975? OPD
5. Whether the suit of the plaintiff is not maintainable in the present form? OPD
6. Whether the plaintiff is estopped by his act and conduct to file the suit? OPD
7. Whether the plaintiff has no cause of action to file the of suit? OPD
8. Whether the suit is not properly valued for the purpose
9. rt of Court fee and jurisdiction? OPD Relief."
6. On an appraisal of evidence adduced before the learned trial Court, the learned trial Court decreed the suit filed by the plaintiffs. In an appeal preferred therefrom by the defendant before the learned first Appellate Court the learned First Appellate Court dismissed the appeal and affirmed the findings recorded by the learned trial Court.
7. Now, the defendant has instituted the instant Regular Second Appeal before this Court assailing the findings recorded by the learned Courts below in their impugned judgment(s). When the appeal came up for admission on 12.8.2014, this Court admitted the appeal on the hereinafter extracted substantial question of law:-
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2. "(1) Whether on account of mis-appreciation of .
the pleadings and misreading of the oral as well as documentary evidence available on record, the findings recorded by both Courts below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable?"
of Substantial question of Law:-
8. Uncontrovertedly as depicted in Ex.P-4 the rt predecessors-in-interest of the plaintiffs herein namely Madan Lal and Desh Raj acquired title qua the suit land under an alienation effectuated by its lawful owner in their respective favour. The aforesaid acquisition of title qua the suit land by Madan Lal and Desh Raj from its lawful owner occurred in the year 1962-1963. In sequel thereto, the revenue Officer concerned under his apposite order of 15.7.1962 attested mutation of ownership qua the suit land in their favour. A perusal thereof also unfolds the factum of both Madan Lal and Desh Raj standing delivered thereat, possession of the suit land by its hitherto owner. However as unraveled by Ex.P-1 the name of the defendant stands reflected in its apposite column of possession. Nonetheless ::: Downloaded on - 15/04/2017 20:36:18 :::HCHP ...6...
with the apposite remarks column of Ex.P-1 holding .
reflections of the defendant holding possession of the suit land since the time of his predecessor-in-interest, yet the aforesaid reflections therein would be inadequate for this of Court to conclude therefrom of his holding possession of the suit property in a lawful capacity especially when there rt occurs no reflection in Ex.P-7 of the predecessor-in-interest of the defendant holding possession thereof as a tenant on payment of rent to the plaintiffs herein.
9. Be that as it may even when the plaintiffs herein as enunciated by the aforesaid documentary evidence hold title qua the suit property besides with the extant possession of the suit property of the defendant continuing since his predecessor-in-interest in a capacity other than of each respectively holding it as tenants under the lawful owners, the defendant herein yet concerted to non-suit the plaintiffs herein by canvassing in his written-statement a plea of with his predecessor-in-interest holding with an animus possidendi, possession of the suit land since 2.12.1975 on whose demise ::: Downloaded on - 15/04/2017 20:36:18 :::HCHP ...7...
its possession with an alike animus possidendi remains with .
him, possession whereof hence on elapse of the statutorily prescribed period of limitation has by prescription ripened "into absolute ownership" of the defendant qua the suit of land, the non-appreciation of the aforesaid factum by each of the learned Courts below stands canvassed by him to rt sequel their renditions standing ingrained with a vice of theirs discarding relevant and germane evidence whereupon hence their impugned renditions warrant interference by this Court. However, even when the said espousal of the defendant to non-suit the plaintiffs stood embodied in his written-statement yet the defendant while adducing evidence in substantiation thereto has in his examination-in-
chief not made any communications therein of possession held qua the suit land by his predecessor-in-interest since 1975 and on his demise his possession thereof holding the indispensable ingredient of it being with an animus possidendi. For lack of an apposite communication by the defendant in his testimony comprised in his examination-in-
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chief qua the apposite ingredient of his through his .
predecessor-in-interest holding possession of the suit property with an animus possidendi since 1975, possession whereof hence on elapse of the statutorily prescribed period of time of stands by prescription ripened "into absolute ownership", disables this Court to conclude of hence the rt defendant/appellant adducing cogent evidence to sustain his plea of his acquiring title qua the suit property by adverse possession. Contrarily the imperative inference which warrants its standing drawn by this Court is of the reflections, if any, in the apposite revenue record of the predecessor-in-
interest of the defendant holding possession of the suit property and on his demise the latter holding its possession being merely permissive possession, possession whereof is neither in the capacity of both holding it as tenants under their respective lawful owners nor in any other lawful capacity rather theirs holding possession of the suit land merely as licencees under lawful owners who stand foisted with a tenable right to reclaim possession thereof.
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Consequently, the endeavor of the plaintiffs to seek .
restoration of the suit property from the defendant is legally apt besides also the concurrently recorded findings of both the Courts below do not suffer from any infirmity, hence the of impugned judgment(s) and decree(s) are maintained and affirmed. In view of the above, the appeal is dismissed as rt also the pending applications if any. Substantial question of law answered accordingly.
16th June, 2016 (Sureshwar Thakur),
(priti) (Judge)
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