Himachal Pradesh High Court
Prem Dass (Deceased) Through Lrs Dev Raj ... vs State Of Himachal Pradesh And Another on 23 October, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 604 of 2005
Decided on: October 23, 2017
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Prem Dass (deceased) through LRs Dev Raj and others
.........Appellant(s)
.
Versus
State of Himachal Pradesh and another ....Respondents
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting?1 Yes.
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For the appellants Mr. G.D. Verma, Senior Advocate with
Mr. B.C. Verma, Advocate.
For the respondents: Mr. M.L. Chauhan, Additional Advocate
General.
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Sandeep Sharma, Judge:
By way of instant Regular Second Appeal under Section 100 of the Code of Civil Procedure, challenge has been laid to judgment and decree dated 2.9.2005 passed by District Judge, Hamirpur, in Civil Appeal No. 6 of 2005, affirming judgment and decree dated 30.9.2004 passed by Civil Judge (Junior Division), Nadaun, District Hamirpur, Himachal Pradesh in Civil Suit No. 84/2001 (RBT No. 674/2003), whereby suit for possession by way of demolition of construction of road over land in dispute, having been preferred by the plaintiff- appellant (hereinafter, 'plaintiff') came to be dismissed.
2. Necessary facts as emerge from the record are that plaintiff filed a suit for possession by way of demolition of construction of road over the land in dispute, averring therein that he is owner-in-possession of the land comprised in Khata 1 Whether the reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 2 No. 2 min. Khatauni No. 5, Khasra No. 142 old, present Khasra No. 300 measuring 0-03-76 hectares and Khasra No. 300/1 measuring 0-00-18 hectares situated in Tika Saloa, Mauza Naunghi, Tehsil Nadaun, District Hamirpur, Himachal .
Pradesh (hereinafter, 'suit land'). Plaintiff further averred that the PWD authorities by mistake constructed Nadaun- Hamirpur Highway through suit land, instead of constructing aforesaid Highway through the land acquired by HPPWD for the said purpose. Plaintiff further averred that when he came to know about aforesaid mistake committed by HPPWD, he requested concerned Department to hand over the possession of suit land to him and to construct road over the land which was acquired for the purpose, but since defendants failed to hand over possession of the suit land to the plaintiff, he had no option but to file suit for possession by way of demolition of constructed road on the suit land. As per plaintiff, cause of action arose to him in August, 1998 onwards when factum with regard to construction of road over suit land owned and possessed by him came to his notice for the first time.
3. Defendants by way of written statement refuted the aforesaid claim of the plaintiff, raising therein preliminary objections of cause of action, non-joinder of necessary parties and limitation. Defendants further averred in the written statement that they are in possession of the land prior to the year 1964 and as such, they have become owner with the afflux of time. Defendants further claimed that the suit land is ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 3 in possession of HPPWD as Gair Mumkin Sadak, since 1960 and at present same is part of NH No. 70 and entries in the revenue record reflect factual position on the spot. Defendants further claimed before the court below that at no point of time, .
plaintiff ever objected to the possession of the defendants. Moreover, their possession qua suit land is open, continuous and hostile to the knowledge of the plaintiff and as such, same has ripened into perfect title and they have become owners by way of adverse possession. Defendants specifically claimed before the Court below that the suit of the plaintiff is barred by limitation as road is existing over the suit land since 1964 and at no point of time, plaintiff or other cosharers raised objection qua the construction/alignment of road as such, suit is liable to be dismissed being not maintainable.
4. Plaintiff by way of replication reasserted his claim and denied the contents of written statement in toto.
5. Learned trial Court below on the basis of pleadings adduced on record by the respective parties, framed following issues on 1.8.2002:
"1. Whether the plaintiff is entitled for the relief of possession by way of demolition of the constructed road through the suit land as alleged? OPP
2. Whether the plaintiff has no cause of action to file the suit? OPD
3. Whether the suit is bad for non-joiner of necessary parties? OPD
4. Whether the suit is barred by limitation? OPD
5. Relief."
6. Learned trial Court, subsequently, vide judgment and decree dated 30.9.2004, on the basis of evidence adduced on ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 4 record by the respective parties, dismissed the suit having been preferred by the plaintiff. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court, plaintiff preferred an appeal under Section 96 CPC, .
before the learned District Judge. However, the fact remains that same was also dismissed, as a result of which, judgment and decree dated 30.9.2004 passed by learned trial Court came to be upheld. In the aforesaid background, plaintiff has approached this Court, by way of instant Regular Second Appeal, praying therein for decreeing the suit after setting aside the judgments and decrees passed by both the learned Courts below.
7. This Court, vide order dated 14.9.2007, admitted the instant Regular Second Appeal, on the following substantial questions of law:
"1. Whether there has been misreading of evidence by both the courts below?
2. Whether long possession of the defendants itself is not a bar for awarding decree for possession by plaintiff on the basis of title?"
8. Mr. G.D. Verma, learned Senior Advocate duly assisted by Mr. B.C. Verma, Advocate, vehemently argued that the impugned judgments and decrees passed by learned Courts below are not sustainable in the eye of law as such same are liable to be set aside. While referring to the judgments and decrees passed by the learned Courts below, Mr. Verma, learned Senior Advocate, contended that the inferences and conclusions drawn by the learned Courts below are neither ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 5 supported by material on record, nor by any provisions of law. He further contended that both the learned Courts below have failed to appreciate real point of controversy and as such, findings returned by the learned Courts below are vitiated on .
account of misreading, misappreciation and misconstruction of pleadings of parties as well as oral and documentary evidence available on record. Mr. Verma, learned Senior Advocate, contended that since plea of adverse possession advanced by the defendants is/was not accepted by the learned Courts below, and plaintiff has been held to be owner-in-possession by the learned Courts below, as such, learned Courts below ought to have granted decree for possession in favour of the plaintiff on the basis of title qua the suit land. While referring to the findings returned by the learned Courts below with regard to limitation, learned Senior Advocate contended that there is no limitation for claiming possession of property on the basis of title, as such, observation/ finding returned by the learned Courts below that suit for possession could be filed within period of 12 years, is not sustainable and as such same deserve to be set aside. Learned Senior Advocate further contended that plea of estoppel as raised by the both the learned Courts below against the plaintiff is totally erroneous and illegal because plea of estoppel can not be allowed to be raised against legal right, especially when title of the plaintiff over the suit land has neither been disputed nor there is any material on record on the basis of which, plaintiff could be ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 6 held debarred from getting relief of possession. While concluding his arguments, Mr. Verma, learned Senior Advocate, forcefully contended that in a welfare State, no citizen can be deprived of his property without following due .
process of law and it has been repeatedly held by this Court as well as Hon'ble Apex Court that acquisition proceedings should be started and amount of compensation should be paid to the individual if the land is utilized for any public purpose. Learned Senior Advocate, further contended that findings returned by the learned District Judge while upholding the judgment and decree of trial Court, are totally erroneous and wrong because same are not borne out of record. Learned Senior Advocate, further contended that decree for possession could not be denied merely on the ground of delay and laches because our own High Court in a judgment in case titled as Jai Ram versus State of Himachal Pradesh, Latest Himachal Law Judgments 2005, Volume-II, 835, has held that delay and laches would not be a bar for grant of relief of possession, especially to the true owner of the property. In support of aforesaid arguments, Mr. Verma, learned Senior Advocate, placed reliance upon following judgments passed by the Hon'ble Apex Court as well as this Court:
(i) Vishwanath Bapurao Sabale versus Shalinibai Nagappa Sabale and others, (2009) 12 SCC 101
(ii) Pradyumna Mukund Kokil versus State of Maharashtra and others, (2015) 6 SCC 406 ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 7
(iii) Jai Ram versus State of Himachal Pradesh, Latest Himachal Law Judgments 2005, Volume-
II, 835
9. Mr. M.L. Chauhan, learned Additional Advocate General, while refuting aforesaid submissions having been .
made by Mr. G.D. Verma, learned Senior Advocate, contended that there is no illegality or infirmity in the judgments and decrees passed by learned Courts below, as such, instant appeal deserves to be dismissed. While referring to the findings/ reasoning given by the learned Courts below while rejecting claim of the plaintiff, Mr. Chauhan contended that it is quite apparent from the reading of aforesaid judgment passed by learned Courts below that both the learned Courts below have carefully dealt with each and every aspect of the matter meticulously and there is no scope of interference, whatsoever, especially in view of concurrent findings of facts and law recorded by both the learned Courts below. Mr. Chauhan, learned Additional Advocate General, while referring to the statement of PW-1, strenuously argued that the plaintiff himself admitted before the learned trial Court that road on suit land came to be constructed in the year 1960, whereafter, traffic is plying on the road since the year 1964. He further contended that it has specifically come in the cross- examination of PW-1 that he had purchased suit land from the original owner after construction of road i.e. 1965 as such, learned Courts below rightly held him not entitled for relief of possession after dismantling the road constructed over the suit ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 8 land. Mr. Chauhan, while inviting attention of this Court to the pleadings adduced on record by respective parties, vehemently argued that it stands duly proved on record that road came to be constructed on suit land in the year 1960 and at no point of .
time, objection if any, was either raised by the original owner or thereafter by the plaintiff as such, learned Courts below rightly rejected the plea of the plaintiff that he is entitled to possession of the suit land. Mr. Chauhan, further contended that as per plea set up by plaintiff, he came to know about change in revenue entry in the year 1998, but even thereafter, instant suit came to be filed in the year 2001 i.e. after three years, but perusal of the pleadings as well as evidence adduced on record by the plaintiff nowhere suggests that explanation, if any, is/was, rendered on record with regard to delay in filing the suit, especially when it has come in his cross-examination that he had purchased the suit land from the original owner after construction of road. While placing reliance upon Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, Mr. Chauhan, stated that in view of concurrent findings of facts and law recorded by both the learned Courts below, present appeal deserves to be dismissed outrightly.
10. I have heard the learned counsel for the parties and gone through the record carefully.
11. This Court solely with a view to find answer to the aforesaid substantial questions of law, carefully examined the ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 9 pleadings and evidence adduced on record by the respective parties vis-à-vis impugned judgments and decrees passed by learned Courts below, perusal whereof certainly does not persuade this Court to agree with the contentions having been .
raised by the learned counsel representing the plaintiff that both the learned Courts below have misread, misconstrued and misappreciated the evidence led on record by respective parties, as a result of which, erroneous findings have come on record, rather, this Court, after having perused entire record is convinced and satisfied that both the learned Courts below have dealt with each and every aspect of the matter meticulously and there is no scope left for this Court to interfere in the matter, especially in view of concurrent findings of facts recorded by the learned Courts below.
12. This Court finds from the record that though defendants, while refuting the claim of the plaintiff specifically raised plea of adverse possession, but no specific issue was framed in this regard by the courts below. Plaintiff, specifically claimed before the Courts below that he is owner of the suit land alongwith other cosharers and authorities of Public Works Department have constructed road from Nadaun to Hamirpur through suit land, without adopting due process of law. As per plaintiff, authorities, instead of constructing road through land acquired for the purpose, constructed the same through suit land by mistake, which fact came to his knowledge in August, 1998. Defendants claimed that they are coming in peaceful ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 10 possession of suit land, since 1960 and they have become owner by way of adverse possession. Since, at no point of time, plaintiff objected to the construction of road, suit is barred by doctrine of acquiescence and laches.
.
13. Plaintiff, with a view to prove his case, examined himself as PW-1 and reiterated the contents of the plaint that he is owner-in-possession of the suit land. He also deposed before the Court below that in August, 1998, he came to know that PWD has constructed road through his land, whereafter, he requested department to hand over possession of the suit land to him and construct road through the land acquired by them for the purpose. Plaintiff, with a view to prove that factum with regard to PWD having constructed road through suit land came to his knowledge only in the year 1998, also placed on record Missal Hakiyat as Exhibit P1, wherein note came to be appended that suit land bearing Khasra No. 300/1 measuring 00-00-18 hectares has been ordered to be recorded in the possession of the HPPWD.
14. Interestingly, aforesaid witness in his cross-examination categorically admitted that road in question came to be constructed in the year 1960 and he had purchased suit land after construction of road in 1965. Most importantly, it has come in his cross-examination that he did not take possession of the land, over which road was constructed. Similarly, this witness admitted in cross-examination that he does not know ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 11 whether PWD had paid compensation, if any, to the land owners, at the time of construction of road or not.
15. Leaving everything aside, this witness, in his cross- examination, admitted that since the time of construction of .
road, PWD is in possession of the suit land. To the contrary, defendants specifically proved on record by leading evidence in the shape of DW-1 i.e. Assistant Engineer, PWD that vehicles on the road are plying since the year 1964 and at not point of time, plaintiff ever raised any objection for the construction of this road through suit land. This witness further deposed before the Court below that in the year 1998, possession qua the suit land came to be entered in the name of PWD in the revenue record. During cross-examination, this witness admitted that during settlement operations, entries were effected as per spot position. Though, aforesaid witness feigned ignorance that plaintiff came to know of construction of road in the year 1998, but stated before Court below that road is in existence since 1960.
16. At this stage, it may be observed, at the cost of repetition, that no findings qua the plea of adverse possession taken by defendants are/were returned by the learned Courts below and no specific issue qua this plea is/was framed, rather, suit of the plaintiff came to be dismissed on the ground of delay and laches. Needless to add, suit for possession could be filed within 12 years from the date of knowledge, but in the case at hand, plaintiff was unable to place on record evidence, ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 12 much less convincing evidence to demonstrate that he had no knowledge about construction of road through suit land, till the year 1998. As has been taken note above, it has specifically come in the cross-examination of PW-1 that road in .
question came to be constructed in the year 1960 and he had purchased suit land after construction of road in 1965.
17. It is not understood that when factum with regard to construction of road in the year 1960 was within knowledge of the plaintiff, how he could claim that he acquired knowledge about construction of road over the suit land in 1998.
18. Similarly, perusal of Exhibit P1 clearly suggests that entry of possession in favour of the defendants qua the suit land came to be reflected in Missal Hakiyat in the year 1994- 95, but even thereafter, no steps, whatsoever were taken by the plaintiff to get the entry corrected in the revenue record. Plaintiff himself admitted in his cross-examination that he purchased suit land after construction of road in the year 1965, but, interestingly, neither sale deed is/was placed on record nor original owner is/was examined to prove on record that no compensation, if any, was received by the original owner qua the land actually used by the defendants for the construction of road in question.
19. Interestingly, there is no suggestion put to DW-1 i.e. Assistant Engineer that road in question came to be constructed on the land other than the one acquired for the purpose of construction of the road. As per plaintiff, he ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 13 purchased suit land after construction of road in the year 1965, but there is nothing on record suggestive of the fact that prior to purchase of suit land, effort if any was made by the plaintiff to verify the title of the suit land.
.
20. Mr. G.D. Verma, learned Senior Advocate, contended that evidence, if any, with regard to compensation, if any, to the original owner qua suit land was required to be adduced on record by the defendants to demonstrate that due and admissible compensation is/was paid to the original owner qua the suit land, but aforesaid plea deserves to be rejected outrightly on the ground that onus, if any, to prove that no admissible and due compensation is/was paid to the original owners/plaintiff by the defendants qua the suit land, is/was upon the plaintiff, who filed the suit for possession, by way of demolition of the road over the suit land.
21. True it is, that there is no specific finding returned by the learned Courts below with regard to plea of adverse possession raised by the defendants and qua the title of the plaintiff but, that could not be sole criteria for the learned Courts below to grant decree of possession in favour of the plaintiff that too after expiry of 12 years from the date of knowledge with regard to construction of road on the suit land. Since it stands duly proved on record that the plaintiff had purchased suit land after construction of the road, it was incumbent upon the plaintiff to examine original owner as witness to prove on record that he /they had not given any ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 14 consent for construction of road through the suit land, but, interestingly, as has been taken note above, no endeavour is/was made on behalf of the plaintiff to examine the original owner.
.
22. Though, this court, after having carefully perused statements/ admissions made in the cross-examination is fully convinced and satisfied that the road in question came to be constructed in the year 1960, has no hesitation to conclude that plaintiff had full knowledge with regard to construction of road, prior to the year 1998, but, even otherwise, if this plea is accepted that he was unaware of the fact that road came to be constructed over suit land till the year 1998, even then there is no cogent and convincing evidence led on record by the plaintiff in this regard to demonstrate that he acquired knowledge with regard to construction of road only in the year 1998. It is not in dispute that road in question is in existence since 1960 and traffic is plying on road after 1964, there is no evidence adduced on record by the plaintiff to demonstrate that after having purchased suit land from the original owner, he raised objection, if any, with regard to existence of road over the suit land. Since as per own admission of the plaintiff, he had purchased suit land after construction of road in the year 1965, it is not understood that why he kept mum for such a long time and during this period why no steps were taken by him to either get revenue record corrected or to initiate ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 15 proceedings, if any, against the defendants, for vacation of the suit land.
23. In the case at hand, suit for possession came to be filed in 2001, i.e. after 36 years, whereas suit for possession could .
only be filed within a period of 12 years from the date of knowledge. In the case at hand, plaintiff was not able to prove on record by leading cogent and convincing evidence that he had no knowledge about construction of road through suit land, till the year 1998 and as such, learned Courts below rightly held that it can be presumed that he had knowledge of existence of road through suit land, from the very beginning and he slept over the matter for years together.
24. This court, after having carefully gone through the evidence led on record by respective parties sees no illegality or infirmity in the findings returned by learned Courts below that suit of the plaintiff is hopelessly barred by doctrine of acquiescence and laches as such, plaintiff is not entitled for possession of suit land, as claimed by him.
25. Mr. G.D. Verma, learned Senior Advocate, while placing reliance upon judgment passed by Hon'ble Apex Court in Vishwanath Bapurao Sabale versus Shalinibai Nagappa Sabale and others, (2009) 12 SCC 101, contended that there is no limitation for suit, if any, filed on the basis of title.
26. Hon'ble Apex Court, in the judgment referred herein above, while dealing with plea of adverse possession taken by the appellant-defendant held that for claiming title by way of ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 16 adverse possession, it was necessary for the plaintiff to plead and prove Animus Possidendi. Peaceful, open and continuous possession being ingredients of adverse possession, long possession by itself would not be sufficient to prove adverse .
possession as contained in the maxim, Nec vi, nec clam, nec precario, long possession by itself was not sufficient to prove adverse possession.
27. In the aforesaid judgment, Hon'ble Apex Court further held that the suit of respondent-plaintiff was based upon title and his title was proved, as such, onus was upon the appellant-defendant to prove his adverse possession over the property in question. Hon'ble Apex Court, in the aforesaid judgment, taking note of judgment in Prem Singh and Ors. v. Birbal and Ors. [2006 (5) SCC 353], held that if the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void. The Hon'ble Apex Court held as under:
"20. The suit filed by Nagappa however was based on title. Once he proved his title the onus was on Laxmibai and consequently upon the appellant to prove that they started possessing adversely to the interest of Shivappa. For the purpose of arriving at a finding as to whether appellant and Laxmibai perfected their title by adverse possession, the relationship of the parties may have to be taken into consideration.
21. It must also be borne in mind that factum of execution of the documents being not in question, it was also expected that Bapurao and after his death Laxmibai would file a suit for cancellation of ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 17 those documents in terms of Section 31 of the Specific Relief Act, 1963.
22. In Prem Singh and Ors. v. Birbal and Ors. [2006 (5) SCC 353], this court held :
"20. If the plaintiff is in possession of a property, he may file a suit for declaration that the deed is not binding upon him but if he is not in possession thereof, even under a void .
transaction, the right by way of adverse possession may be claimed. Thus, it is not correct to contend that the provisions of the Limitation Act would have no application at all in the event the transaction is held to be void.
21. Respondent 1 has not alleged that fraudulent misrepresentation was made to him as regards the character of the document. According to him, there had been a fraudulent misrepresentation as regards its contents.
22. In Ningawwa v. Byrappa Shiddappa Hireknrabar this Court held that the fraudulent misrepresentation as regards character of a document is void but fraudulent misrepresentation as regards contents of a document is voidable stating: (SCR p. 801 C- D) "
"5. The legal position will be different if there is a r fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable."
In that case, a fraud was found to have been played and it was held that as the suit was instituted within a few days after the appellant therein came to know of the fraud practised on her, the same was void. It was, however, held: (SCR p. 803 B-E) "7. ...Article 91 of the Limitation Act provides that a suit to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be subject to a three years' limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him. In the present case, the trial court has found, upon examination of the evidence, that at the very time of the execution of the gift deed, Ext. 45 the appellant knew that her husband prevailed upon her to convey Surveys Plots Nos. 407/1 and 409/1 of Tadavalga village to him by undue influence. The finding of the trial court is based upon the admission of the appellant herself in the course of her evidence. In view of this finding of the trial court it is manifest that the suit of the appellant is barred under Article 91 of the Limitation Act so far as Plots Nos. 407/1 and 409/1 of Tadavalga village are concerned."
27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 18 on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.
28. If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 .
years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court.(emphasis in original)"
28. This Court, after having carefully perused the law laid down by the Hon'ble Apex Court in the aforesaid judgment is unable to accept the aforesaid contention of Mr. Verma,
29.
r to learned Senior Advocate that Limitation Act would have no application if suit is filed on the basis of title.
While placing reliance upon the judgment passed by Hon'ble Apex Court in Pradyumna Mukund Kokil versus State of Maharashtra and others, (2015) 6 SCC 406, Mr. G.D. Verma, learned Senior Advocate contended that it has been held that government should not raise plea of limitation.
Law laid down by the Hon'ble Apex Court, in the aforesaid judgment is not applicable at all in the present case. Hon'ble Apex Court in the aforesaid judgment has not touched the aspect, if any, of plea of limitation, rather, Hon'ble Apex Court has held that it was not proper on the part of High Court to permit the Municipal Corporation to raise plea of adverse possession and Government body/State authority can not take possession of somebody's land, without due process of law. The Hon'ble Apex Court has held as under:::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 19
"3. The only objection which the learned counsel for the appellant has raised is about the observation made in paragraph 27(b) of the impugned Judgment with regard to adverse possession of the Municipality. According to Respondent No.3-Municipal Corporation, the Corporation was in possession of the land belonging to the appellant.
4. The appellant claims to be the owner of the land in .
question and even as per the Revenue Records, the appellant appears to be the owner.
5. In our opinion, it was not fair on the part of the High Court to permit Respondent No.3 - Municipality to raise a plea with regard to adverse possession. It would not be proper on the part of the Government body or any state authority to take possession of somebody's land without following due process of law and even if a citizen has permitted his land being used by a government authority, the authority should not take undue advantage thereof at the time of giving compensation when the said land is acquired."
30. Since, other judgments cited by Mr. Verma, learned Senior Advocate, directly relate to the plea of adverse possession as such, same are not required to be considered and looked into in view of no findings having been returned by both the learned Courts below qua plea of adverse possession raised by the defendants. In the case at hand, suit of plaintiff filed for possession came to be rejected on the doctrine of acquiescence and laches and as such, there is no occasion for this Court to go into question of adverse possession, which plea has been virtually not taken note by the learned Courts below, while dismissing the suit of the plaintiff.
31. In view of detailed discussion made herein above, this Court is not inclined to accept the contention of learned Senior Advocate representing the plaintiff that the learned Courts below misread, misconstrued and misappreciated the evidence while dismissing the suit of the plaintiff, rather, this Court is ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 20 persuaded to hold that both the learned Courts below have appreciated evidence in its right perspective and have dealt with each and every aspect of the matter meticulously.
32. Since, plea of adverse possession as raised by the .
defendants has not been taken note by the learned Courts below, this Court, is not called upon/required to answer substantial question of law No.2, which directly relates to long possession of the defendants. Otherwise also, as has been discussed herein above, defendants have successfully proved on record that they are coming in possession of the suit land since the year 1960 and no steps whatsoever are/were taken by the plaintiff to get the suit land vacated in accordance with law till the year 2001, i.e. when suit for possession by way of demolition of road constructed over suit land, came to be filed after 36 years. Substantial question of law No.1 is answered accordingly.
33. Before adverting to the merits of the case, it would be appropriate to deal with the specific objection raised by the learned counsel representing the respondents with regard to maintainability and jurisdiction of this Court, while examining the concurrent findings returned by both the Courts below. Mr. Chauhan, invited the attention of this Court to the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein the Hon'ble Supreme Court has held:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 21 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 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)
34. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re- appreciating the evidence available on record, but as emerges from the case referred above, there is no complete bar for this Court to upset the concurrent findings of the Courts below, if the same appears to be perverse.
35. In this regard reliance is placed upon judgment passed by Hon'ble Apex Court in Sebastiao Luis Fernandes (Dead) through LRs and Others vs. K.V.P. Shastri (Dead) through LRs and Others, (2013)15 SCC 161 wherein the Court held:
::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 22
"35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth v. Seshammal, (2006)5 SCC 545, wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below : (SCC pp.555-56) "24. The principles relating to Section 100 CPC relevant .
for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law.
Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of r law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same."
(pp.174-175) ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP 23
36. The Hon'ble Apex Court in Parminder Singh versus Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017, has held as under:
"14) In our considered opinion, the findings recorded by .
the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal.
15) It is more so when these findings were neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings were found to be against the evidence, nor against the pleadings and lastly, nor against any provision of law."
37. It is quite apparent from aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by learned Courts below, rather same are based upon correct appreciation of evidence as such, same deserve to be upheld.
38. In view of the detailed discussion and law as referred to above, there is no merit in the present appeal, which is accordingly dismissed. Judgments and decrees passed by the learned Courts below are upheld. Pending applications, if any, are also disposed of. Interim directions, if any, are vacated.
(Sandeep Sharma) Judge October 23, 2017 (Vikrant) ::: Downloaded on - 14/11/2017 18:08:52 :::HCHP