Himachal Pradesh High Court
Prem Chand And Etc. vs Jagar Nathu And Etc. on 19 September, 2005
Equivalent citations: AIR2006HP78, 2006(3)SHIMLC177
Author: K.C. Sood
Bench: K.C. Sood
JUDGMENT K.C. Sood, J.
1. These two Second Appeals No. 324/1997 and 325/1997 arise out of the common judgment of the learned Additional District Judge, Solan, dated 31st July, 1997.
2. The two appeals were admitted by identical orders dated 8th September, 1998. The order(s) read:
Heard. Admitted on the substantial questions of law framed by the appellant and as annexed with the memorandum of appeal. Mr. Navlesh Verma, learned Counsel for the respondent, waives service of notice on behalf of respondent-Jagar Nath after admission.
3. The substantial questions of law as framed by the appellant(s) in both the cases are:
1. Whether in absence of proper pleadings and proof of ouster could the plaintiff/ respondent be held to be in exclusive possession of the suit property and perfected his title by way of adverse possession particularly in view of the, sale deed dated 27-3-1972 acknowledging the right of other co-sharers in the suit property?
2. Whether the animus of hostility can be presumed in favour of one co-sharer merely on account of the fact that the said co-sharer is cultivating the land?
3. Whether mere non-participating in the profits of the joint land in any manner affects the status of the parties as co-owners? Was not it incumbent for the plaintiff/respondent to have led cogent evidence regarding family partition by virtue of which he claims exclusive title to the suit property? Was not presumption available to the defendant/appellant that possession of one co-sharer is possession of all?
4. Whether the possession of defendant/ appellant and the predecessor as a tenant was proved on record on account of order of the Revenue Officer, receipts of payment of compensation acquiring proprietary rights?
5. Are not the findings of both the Courts below vitiated on account of not taking into consideration old and new Khasra numbers connecting the suit land particularly Ext. D-8, the MISAL HAKIAT?
6. Whether both the Courts below have misread the contents of Ext. D-1, Power of Attorney executed by the tenants in favour of Dila Ram for obtaining the proprietary rights? Was not the tenancy of Ram Dittu, predecessor-in-interest of the defendant/ appellant, proved over the suit property if Ext. D-l was read in conjunction with Ext. D-8? .
7. When the defendant/appellant was proved to be in possession of the suit property as a tenant having acquired the title by operation of the H.P. Tenancy and Land Reforms Act, was it competent for the Courts below to have granted a decree for injunction in favour of the plaintiff/respondent?
4. The relevant facts for the disposal of these appeals may be, noticed:
Plaintiff-Jagar Nathu laid a Suit (No. 8/1 of 1982) before the Sub-Judge Ist Class, Arki, against Prem Chand and others for permanent prohibitory injunction seeking to restrain the defendants from interfering with his possession over the land subject-matter of dispute i.e. Khasra No. 135, measuring 6 Bighas 8 Biswas, situate in Mauja Gharo, Pargana Deora of Tahsil Arki in District Solan, as per Jamabandi for the year 1980-81.
5. The case of the plaintiff set out in the plaint is that the entire land is in possession of the plaintiff as it was given to his predecessor(s) in a private family partition a century ago. In alternative pleads plaintiff the defendants No. 6 to 14 and their predecessors never visited village Gharno nor they have ever objected to the long exclusive, open, continuous and hostile possession of the plaintiff and his predecessors in the land in suit. In these facts and because of the ouster of the co-owners, the possession of the plaintiff ripened into full ownership by way of adverse possession. The defendants have now started interfering with his possession without any right, title and interest and in fact on 26th November, 1982 defendants committed criminal trespass and threatened to cut the grass and dispossess the plaintiff.
6. In the written statement filed on behalf of defendants Nos. 1 to 5 who are strangers to the suit land, the allegations are controverted. It is denied that either plaintiff or other persons as recorded in the revenue record were in possession of the suit land for more than 100 years. The revenue record, prepared behind the back of the defendants, it is pleaded, is not correct and not binding on the replying defendants. The land in question, it is pleaded, is possessed by the replying defendants as absolute owners. It is denied that the land in dispute fell into the share of the plaintiff in any family partition. Neither the plaintiff nor other persons recorded in possession in the revenue record are factually in possession as claimed by the plaintiff. All the co-owners are residing at different places. It is disputed that the possession of the plaintiff is adverse and he has become owner by adverse possession. As the plaintiff is not in possession of the land, therefore, the question of he being in adverse possession does not arise.
7. The replying defendants No. 1 to 5 plead that they are in open, peaceful, continuous possession of the land in dispute and neither the plaintiff nor any person has any right, title and interest. Revenue entries showing to the contrary are wrong and not binding on the rights of the defendants. The replying defendants plead that this land was given to the replying defendants for cultivation on payment of rent, but later on no rent was paid by the defendants and, therefore, their possession has become adverse.
8. In a separate written statement filed by defendants Nos. 6 to 17, it is pleaded that defendant No. 1-Prem Chand is in possession of the disputed land. It is their case that though the revenue record shows plaintiff and defendants Nos. 7 to 15 as co-sharers, but land in question has never been in possession of the plaintiff or defendants Nos. 7 to 15 for the last 100 years. In fact, defendant No. 1 is in occupation of this land. He was continuously cultivating the land as tenant and after coming into force the H.P. Tenancy and Land Reforms Act has become its owner. It is denied that this land was given to the plaintiff or his predecessors in private family partition. According to these defendants, the predecessor-in-interest of defendant No. 1 was cultivating the land on behalf of defendants Nos. 7 to 15 and he now is in possession as absolute owner.
9. The plaintiff filed another Suit No, 74/ 1 of 1984 against defendant-Prem Chand for declaration that the order of the Assistant Collector 2nd Grade (Naib Tehsildar), Arki, is illegal, void and without jurisdiction. In this case plaintiff pleaded that he is recorded as owner of the suit land along with other co-owners though name of other co-owners is wrongly recorded in the revenue record. The plaintiff claims that he is in possession of this land since generations, openly, peacefully and continuously to the exclusion of other co-owners who never visited village Ghana where the land is situated and has never raised any objection to the long exclusive and hostile possession of the plaintiff and his predecessors on this land. This hostile possession of the plaintiff and his predecessors has matured into ownership by adverse possession and the other co-owners have no right, title and interest.
10. The defendant, it is pleaded, in connivance with some of the co-owners moved an application for correction of "Chars Gravari" with a view to dispossess the plaintiff and by practicing fraud, obtained an order from the Assistant Collector IInd Grade, Arki on 29-7-1993. This order is a nullity and, therefore, is not binding on the plaintiff. As the order casts cloud on the right, title and interest of the plaintiff, therefore, he has laid the suit for declaration that the order of the Assistant Collector IInd Grade, dated 29-7-1983 is null, void and without jurisdiction. The plaintiff also prays for consequent relief restraining the defendants from causing interference in his possession under the cloak of the impugned order of the Assistant Collector.
11. Defendant-Prem Chand in his written statement controverts the allegations. The case of the defendant is that the land in suit was once owned by the State of Himachal Pradesh and the predecessor-in-interest of the plaintiff and others were recorded as tenants who used to get this land cultivated through the predecessor of the defendants. The predecessor-in-interest of the plaintiff became owners of this land but defendants stopped paying the share of the crop to the owners and now pay only land revenue and, therefore, has become co-sharer with the other co-owners. He denies that the plaintiff is in possession of the suit land.
12. Learned trial Judge by a common judgment in both the suits held that the possession of the plaintiff over the disputed land being open, continuous, peaceful and hostile to the rights of the co-owners i.e. defendant Nos. 6 to 17 and has become owner of the disputed land by adverse possession. The learned trial Judge dismissed the claim of defendant-Prem Chand, Champa Devi. Ram Dittu, Krishan Chand and Ganpatu that they have become co-owners of the land having purchased this land from other co-owners. Learned trial Judge found that defendant-Prem Chand and his family members were interfering with the possession of the plaintiff over the suit land without any right, title and interest.
The plea of the plaintiff that the suit land came in the share of the predecessor-in-interest of the plaintiff in private partition was rejected for want of any evidence.
13. The suit of the plaintiff was decreed and the defendants were restrained from interfering with the possession of the plaintiff over the suit land.
14. Dissatisfied, defendants carried an appeal before the learned District Judge in both the suits. Learned first appellate Court concurred with the findings of the learned trial Court that the plaintiff has become owner of the suit land by adverse possession. Both these appeals were dismissed by the impugned common judgment and decree of the first appellate Court.
15. Heard Mr. Bhupender Gupta, learned senior counsel assisted by Mr. Neeraj Gupta, Advocate, for the appellant and Mr. G. D. Verma, learned senior counsel, assisted by Mr. Romesh Verma, Advocate, for the respondents.
Question Nos. 1 to 316. It is admitted position between the parties that none of the co-owners of the land in dispute, except the plaintiff, are in possession of the suit land. The other co-owners are not residing in village Gharo. Even the other co-owners in their separate written statement have admitted that they are not in possession of the suit land and according to them, the suit land is in possession of Prem Chand which was given to him for cultivation on payment of rent and he has now become owner. The other co-owners, it follows, do not claim any right over the suit property. This apart, as discussed by the trial Court and the first appellate Court, the plaintiff appearing as P.W. 1 states that the total land in village Gharo of all the co-owners was 45 bighas 8 biswas. All the other co-owners settled in village Alli and the entire land including the suit land which only measures 6 bighas 8 biswas is in his possession since the time of his father to the exclusion of the other co-owners who never claimed any right over it. His possession has been open peaceful and in denial to the rights of the other co-owners. Admittedly, the other co-owners do not claim any possession or even proprietary rights over this land. Jeet Ram (P.W. 2) also speaks about the uninterrupted possession of the plaintiff over the suit land from the age of his discretion and that every one understands that he is the exclusive owner of this land. There is nothing material in the cross-examination of this witness. To a similar effect is the evidence of Dhani Ram.
17. So far the title of Prem Chand is concerned, the witnesses of the plaintiff denied that Prem Chand or his father was in possession of this land. Appearing as D.W. 1 he states that his father was inducted as tenant over eleven and half bighas of land. This statement is made in his written statement that his father was inducted as tenant over eleven and half bighas of land. He does not even identify as to which precisely this land is and who inducted his father as tenant. The land in dispute is comprised in Khasra number 135 and defendant-Prem Chand in his testimony does not say that he is in possession of this land and khasra No. 194 but as noticed by the trial Court, as per record, there is no khasra No. 194. The conclusion of the trial Court as affirmed by the first appellate Court that the defendant is not even aware of the land on which he claims his possession cannot be faulted with. It is the case of Prem Chand-defendant that he was inducted as tenant. Thereafter, he ceased to pay the rent and had become owner by adverse possession. Prem Chand also took a stand in the witness-box that his father was appointed as power-of-attorney by the other co-owners Ext. D1 but it is found that Ext. D1 was executed by the co-owners S/Shri Shiv Ram, Dittu, Paras Ram, Dhani Ram and Santu. It is apparent that defendant-Prem Chand had colluded with the co-owners simply to defeat the claim and rights of the plaintiff. This defendant even did not know who was the power-of-attorney of other co-owners which in itself speaks volumes. D.W. 2 though speaks about the possession of defendant-Prem Chand but in his cross-examination admits that he was serving in Delhi and he came to village Gharo only seven years back. Therefore, this witness could not have stated about the possession of defendant-Prem Chand as claimed by Prem Chand. In fact, this witness expresses his inability to say if Jagan Nath was in possession of the land in dispute for about 16/17 years. This witness has prevaricated himself and does not inspire confidence. D.W. 3 Anant Ram though speaks about the possession of defendant-Prem Chand over the suit land but does not know about the area of the suit land. According to him, there are two plots of the land in dispute but the fact is that suit land consists of one single plot. The testimony of D.W. 3 has been rejected by the trial Court and the first appellate Court and rightly so. Dittu Ram (D.W. 4) is one of the co-owners re-corded in the revenue record. It is his evidence that the suit land was given to the grandfather of Prem Chand for cultivation on rent. His father used to pay rent till consolidation but thereafter he stopped paying the rent but in cross-examination he admits that he has settled in village Jabbal about fifty years back and had visited village Gharo, where the land in suit is situate; only when the: consolidation proceedings took place. In cross-examination, he states that possession was not given to Prem Chand but Sudama had taken forcible possession. Thus the possession of the plaintiff to the exclusion of the other co-sharers is admitted by their witness since time, of his, father. This would show that possession of Sudama and then that of the plaintiff was hostile to the co-sharers. His testimony was found to be unreliable both by the trial Court and the first appellate Court. Similarly, Dhani Ram D.W. 5 states that he is not aware as to how much land was in possession of deceased-Sudama, the father of the plaintiff. But he categorically admits that after the death of Sudama, his son, the plaintiff is in possession of the entire land. He does not say that the defendant-Prem Chand is in possession of the suit land.
18. Both the learned trial Court and the first appellate Court on appreciation of the evidence held that Sudama was in exclusive possession of the entire land and the other co-owners settled in other villages about fifty years back. Sudama remained in exclusive possession of the total land to the exclusion of other. His possession was hostile to the other co-owners. The hostility of possession can also be seen from the very fact that the other co-owners do not claim any right, title or interest in the suit land.
19. Defendant-Prem Chand is not proved to be in possession of the suit land at any point of time. Defendant-Prem Chand claims his title on the basis of an order passed by Assistant Collector IInd Grade Exhibit DX. In this order, the Assistant Collector held that Prem Chand-defendant was in possession of 1/4th share out of the suit land. This finding of the Assistant Collector is found to be erroneous both by the learned trial Court and the learned First Appellate Court. Both the Courts found as fact that Prem Chand is not in possession of any part of the land in dispute. In this view of the matter, the order of the Assistant Collector Exhibit DX is of no consequence and cannot and does riot confer any right on defendant-Prem Chand.
20. This apart, defendant-Prem Chand claimed that he was inducted as tenant over the suit property. There is no evidence on record to suggest that he was inducted as tenant nor any revenue entry supports him to this effect. The only evidence produced by the defendant-Prem Chand is that he was found in possession of 1/4th share of the suit land by the Assistant Collector. The order of the Assistant Collector, as observed earlier, is without any foundation and both the trial Court and the first appellate Court has found this order to be erroneous on the basis of evidence led before the trial Court.
21. Mr. Bhupinder, Gupta, learned senior counsel for the appellant strenuously urges that ouster of the co-sharers is not proved on record. It is noticed that none of the co-sharers claim any ownership or any other right, title or interest over the suit property. Therefore, the question of providing ouster by Jagan Nath-plaintiff does not arise.
22. The inevitable conclusion is that substantial question Nos. 1 to 3 are not existent. It is admitted position that other co-sharers neither participated in the profits nor claimed any rights over the suit property in their written statement. Therefore, the findings of the trial Court and the learned first appellate Court that the plaintiff is the owner in possession of the suit land cannot be faulted with.
Question Nos. 4 and 723. I have already said that the defendant is not proved to be in possession over any part of the suit land either as owner or as tenant.
Question No. 524. This question is also non-existent. Question No. 6
25. Question No. 6 is a question of appreciation of evidence. I have also gone through the contents of power-of-attorney Exhibit-D 1. It has not been misread by the Courts below. This question is non-existent as the appellant-Prem Chand is not found to be in possession of any part of the suit property.
26. Mr. Verma, learned senior counsel for the respondents urges that the question as to who is in possession of the suit property is a question of fact and this Court would not go into this question in second appeal.
27. In Tirumala Tirupati Devasthanams v. K.M. Krishnaiah , it was observed by their Lordships that when the trial Court and the first appellate Court based their finding regarding possession on oral and documentary evidence, the High Court would stay its hands off in second appeal and will not be justified to reappreciate the evidence or to say that no reliance could be placed on the interested oral evidence which is used by the parties in support of their respective claims. This position was reiterated by the Apex Court in Mohan Lal v. Nihal Singh wherein their Lordships held that the question of possession of the suit land is essentially one of fact. In that case, the trial Court found on the basis of oral evidence and the revenue record that the plaintiff was in possession of the land in question under a lease deed and continued to possess the same all alone. The first appellate Court, which is final Court of fact, confirmed these findings of the trial Court. Under these circumstances, their Lordships observed that there is no scope for the High Court to interfere with the findings of possession concurrently recorded by the trial Court and the first appellate Court in view of the limitation under Section 100 of the Code of Civil Procedure.
28. It may be observed that in the present case, neither any relevant material has been excluded from consideration by the trial Court or the first appellate Court nor any irrelevant material has been taken into consideration by the Court below to justify any interference in this second appeal.
29. It is true that question of adverse possession is mixed question of law and fact but in the present case as already noticed, the other co-sharers who could claim right in the suit land, have not claimed any right, title or interest in their written statement and, therefore, the plaintiff was not called upon to prove the ouster of the co-owners. Nevertheless, he has led evidence, as appreciated by the Courts below to show that he had possessed the land since the time of his forefather to the exclusion of the other co-owners and in hostility to them. The claim of the plaintiff that he was in adverse possession of this property is not in fact contested by the other co-owners even though they states that this land was given to the defendant for cultivation.
30. To conclude, there is no merit in appeal which fails and is dismissed with costs.