Himachal Pradesh High Court
______________________________________________________________________ vs Smt. Devkoo Devi on 17 August, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No: 149 of 2007
.
Reserved on: 27.07.2016
Date of Decision: 17.08.2016
______________________________________________________________________
Krishan Dutt and others .....Petitioners.
Vs.
Smt. Devkoo Devi .....Respondent.
of
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioners:
For the respondent:
rt Mr. D.N. Ronta, Advocate.
Mr. B.R. Verma, Advocate.
Ajay Mohan Goel, J. :
By way of present revision petition, the petitioners have challenged the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Court No.-V, Shimla in Civil Suit No. 370-1 of 99/98 dated 30.07.2007 vide which, learned Court below has decreed the suit of the plaintiff for possession of land and two storeyed house alongwith moveable property in a suit filed under Section 6/7 of the Specific Relief Act, 1963.
2. Brief facts necessary for adjudication of the present case are that Tej Ram filed a suit for possession of the suit land alongwith two storeyed building with movable property under Section 6/7 of the Specific Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 2Relief Act, 1963 on the ground that she was owner in possession of the suit land and predecessor-in-interest of defendants had filed a suit for declaration which was later on amended to suit for possession qua the .
suit land to the extent of half of share on payment of `1000/- in terms of declaratory decree, which was dismissed on 16.12.1988 by the learned trial Court. Tej Ram filed an appeal against the judgment so passed by learned trial Court and the said appeal was compromised at the back of of the plaintiff and learned appellate Court decreed the suit of Tej Ram with respect to the suit land on payment of `15, 000/- within one month.
Against the said judgment, Regular Second Appeal No. 3/94 was filed by rt the plaintiff in this Court which was dismissed on 30.09.1994. However, decree was modified to the extent that Tej Ram was now to pay an amount of `20,000/- instead of `15,000/-. Tej Ram filed an execution petition before the learned District Judge, Shimla seeking possession of the suit land alongwith house comprising of two rooms and one kitchen.
During the pendency of execution petition, Tej Ram died. Defendants No. 1 to 4 filed an application under Order 22 Rule 3 of the Code of Civil Procedure to implead them as legal representatives of deceased Tej Ram by setting up an illegal Will. The execution petition was transferred to the Court of learned Sub Judge 1st Class (1), Shimla.
3. Devkoo Devi (respondent/plaintiff) filed objections under Section 47 of the Code of Civil Procedure in the said execution petition challenging the executability of the compromise decree. Defendants No. 1 to 4 sought time to file reply to the said objections and on their request ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 3 matter was adjourned on 19.05.1008, 01.06.1998 and 24.06.1998. On the last date, defendants No. 1 to 4 did not appear deliberately and the execution petition was dismissed in default. Defendants No. 1 to 4 won .
over one of the Judgment Debtors in the said execution petition, namely, Cheeri Devi, who had filed an application through her counsel Shri Varinder Tejta without taking no objection from the earlier counsel and had sought permission to withdraw objections filed by her under Section of 47 of the Code of Civil Procedure. On 18.06.1998, at about 4:45 a.m., the plaintiff was forcibly dispossessed of the suit property by the defendants without her consent and otherwise than in due course of law. The rt defendants committed house trespass at night and in furtherance of their common intent, Hema Nand outraged the modesty of plaintiff and also committed theft of movable property worth `46,150/-. On 29.06.1998, execution petition of the defendants was dismissed in default. On these basis, it was pleaded by the plaintiff that the defendants had no right, title or interest over the suit land and the dispossession of the plaintiff without her consent and otherwise than in due course of law was illegal and the defendants were liable to restore the suit land to the plaintiff.
4. The case of the plaintiff was contested by the defendants on the ground that the plaintiff had agreed to hand over the possession of the land and house to the Decree Holders which she did towards the end of May 1998 and, therefore, there was no question of forcible entry of the defendants in the house of the plaintiff as alleged. The allegation of Hema Nand having outraged the modesty of the plaintiff or theft of moveable ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 4 property having been committed were also emphatically denied.
According to the defendants, the plaintiff had delivered the vacant possession of the ground floor of the house which was vacant and when .
she delivered the symbolic possession of the upper storey of the house, it was in possession of Shri Madan Lal, teacher. Plaintiff had also told the defendants that they were free to take possession of the upper storey of the house any time from the said teacher. The possession of the land was of also delivered by the plaintiff to the defendants and they had sown maize crop in two fields after taking the possession of the suit land. On these basis, the defendants denied the claim of the plaintiff.
rt
5. On the basis of pleadings of the parties, learned trial Court framed the following issues:
"1. Whether the plaintiff is entitled for possession of suit land comprised in Kh. No. 1,8,13,14,19,23,32,34,35,44,63,79,83 and 88 Khewat No. 36, Khatoni No. 59, measuring 11-13 biswas as alleged? OPP
2. Whether the suit of the plaintiff is not maintainable? OPD
3. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
4. Relief.
6. On the basis of material placed on record by way of ocular and documentary evidence, learned trial Court returned following findings to the issues so framed:
"Issue No. 1: Yes.
Issue No. 2: No.
::: Downloaded on - 15/04/2017 21:02:21 :::HCHP
5
Issue No. 3: No.
Relief: Suit of the plaintiff decree, as per
the operative part of my
judgment.
.
7. Learned trial Court accordingly decreed the suit of the plaintiff and directed the defendants to hand over the possession of the suit land to the plaintiff.
8. Feeling aggrieved by the said judgment and decree passed by of the learned trial Court, the defendants have preferred the present revision petition.
9. It was held by Learned trial Court that it was borne out from rt the records of the case that the plaintiff was in settled possession of the suit property for a long time and suit for possession qua the suit property was filed against the plaintiff and other persons by the predecessor-in-
interest of the defendants, which itself proved the possession of the plaintiff. It further held that it stood proved from the records that Devku Devi as well as other JDs. were objecting the execution petition for the possession of the suit property and on these basis, learned trial Curt concluded that the case of the defendants that they got the possession of the suit land from the plaintiff out of her own volition seemed to be a concocted one. As per learned trial Court, the evidence placed on record by the plaintiff demonstrated that there was no express or implied consent on behalf of the plaintiff, i.e. delivery of possession of the suit was not given by her to defendants as an act of free volition, but she was forcibly dispossessed. Accordingly, learned trial Court held that the ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 6 plaintiff had established on record that the possession of the suit land was taken by the defendants No. 1 to 4 with the help of remaining defendants without any consent and otherwise than in due course of law.
.
10. The suit was decreed in the following terms:
"Suit for possession of suit land comprised in Khasra 1, 8, 13, 14, 19, 23, 32, 34, 35, 49, 63, 79, 83 and 88 Khewat No. 36, Khatoni No. 59, measuring 11 bighas 13 biswas situated at village of Panjayali, Tehsil Suni, District Shimla, H.P. alongwith a two storeyed building with moveable property under Section 6/7 of the Specific Relief Act, 1963.
rt This suit coming on this 30th day of July, 2007 for final disposal before me (Harmesh Kumar) Civil Judge (Jr. Division) (V), Shimla in the presence of Sh. B.R. Verma, Advocate for the plaintiff and Sh. D.N. Ronta, Advocate for the defendants. It is ordered that the suit of the plaintiff is decreed and the defendants are directed to hand over the possession of the suit comprised in Khasra Nos.
1,8,13,14,19,23,32,34,35,49,63,79,93 and 88 in Khewat No. 36, Khatoni No. 59, measuring 11 bighas 13 biswas, situated at village Panjali, Tehsil Suni, Distt. Shimla, H.P. alongwith two storeyed building and movable property as mentioned in Ex. PW-1/C."
::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 711. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgment passed by .
learned trial Court
12. The suit admittedly was filed by the respondent/plaintiff under Sections 6 and 7 of the Specific Relief Act, 1963. Sections 6 and 7 of the Specific Relief Act, 1963 provide as under:
of "6. Suit by person dispossessed of immovable property.--
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of rt law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought--
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
7. Recovery of specific movable property.--A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908.
Explanation 1.--A trustee may sue under this section ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 8 for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled. Explanation 2.--A special or temporary right to the present possession of movable .
property is sufficient to support a suit under this section."
13. Before proceeding further, it is necessary to refer to the averments made in para-9 of the plaint, which are reproduced of hereinbelow:
"9. That on 18.6.98 at about 4.45 AM, the defendants No. 1 to 3 got the land and two storeyed rt building in their possession through defendants No. 4 to 12 forcibly dispossessing the plaintiff without her consent and otherwise than in due course of law. The said defendants have committed lurking house trespass at night and in furtherance of their common intent of all the defendants, Sh. Hemanand, outraged the modesty of the plaintiff, besides, committed theft of movable property worth about Rs.46,150/-
including deodar wooden plancks, wooden alimirah, and other house hold articles, the extract of the same is attached with the plaint."
14. In the written statement, the defendants refuted the averments so made in para-9 of the plaint in the following terms:
"That para 9 of the plaint is wrong and denied. After the objections under Section 47 C.P.C. were filed to the Execution petition, the defendant No. 1 had approached the J.Ds at their houses and asked about filing of objections from them. All the J.Ds except Smt. ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 9 Devkoo Devi plaintiff told that they have not filed any objections and they do not dispute the claim of the D.Hs over the suit land and the house. Smt. Devkoo Devi also agreed to hand over the possession of the .
land and house to the D.Hs which she did towards the end of May, 1998. There was as such no question of forcible entry of the defendants in the house to dispossess the plaintiff as alleged. It is wrong and denied that Shri Hema Nand defendant outraged the modesty of the plaintiff as alleged. It is also wrong of and denied that theft of moveable property worth about Rs.46150/- including deodar wooden planks, wooden almirah and other house hold articles was rt committed as alleged. There was no such article in the house and as such the question of committing of any theft of the alleged articles does not arise at all. The house in question was two storeyed. The upper storey consisted of 2 rooms and one kitchen which were in possession of one Shri Madan Lal Teacher of Govt. High School Khatnol as a tenant on rent. The ground floor in the said house was used only to tether the cattle etc. The plaintiff had shifted her rresidence from that village to her village Darvi about 5 or 6 years prior to the handing over the possession of the house and the land to the defendants Nos. 1 to 4. The ground floor of the said house was used by one Smt. Shibi Devi of the said village to teather her cattle while the upper storey was in possession of the tenant Shri Madan Lal teacher. The plaintiff had delivered the vacant possession of the ground floor of the house which was vacant at that time while she delivered the symbolic possession of the upper storey of the house ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 10 which was at that time in possession of said Shri Madan Lal teacher. The plaintiff had told the defendants that they are free to take possession of the upper storey of the house anyh time from the said .
teacher. The possession of the land was also delivered by the plaintiff to the defendants saying that the fields are all vacant as no crops were standing on the land in question at that time and that henceforth the defendants are at liberty to sow any crop in the same as they desire. The defendants 1 to 4 had sown maize of crop in 2 fields after taking over of possession of the land as rest fields were all barren, in the 1st week of June, 1998. Sh. Madan Lal Teacher had also handed rt over the vacant possession of the upper storey of the house to the defendants 1 to 4 on 19.06.1998. After taking over the possession of the land and house from the plaintiff, the defendants 1 to 4 spent about Rs.60,000/- on the development of the land and also spent about 1,50,000/- on the repairs of the said house including construction of additional accommodation alongwith the same. It was thus for this reason that the defendants 1 to 4 had not pursued the execution petition."
15. In order to prove her case, plaintiff Smt. Devkoo Devi entered the witness box as PW-1. She deposed that on 18th June when she was sleeping in the house, at around 5:00 a.m., Tej Ram and his entire family came there and started knocking the door. When she opened the door, she was forcibly thrown out of the house. She also stated that in the house in which she resided, one room was rented to Master Madan Lal, ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 11 who used to pay to her an amount of Rs.150/- as rent. He was not there since 10th June as he had gone to his village. She also deposed that her cattle were tied in the lower storey which were let loose by the .
defendants. She also stated that on that day, her husband was at Shimla and she went to Pradhan Kundan Singh and told him the entire incident.
Pradhan came back to the spot and when he confronted the defendants, they told the Pradhan that they had won the case. She also stated that of thereafter she went to Police Station, Dhalli and reported the matter. She was advised to go to Police Post Sunni and thereafter she contacted her lawyer on telephone and her lawyer moved appropriate application in this rt regard before the Police Officer. However, police did not register any FIR.
In her cross-examination, she denied the factum of having handed over the possession of the house and land to the defendants in front of Prem Lal. She also denied the fact that when the possession of the land was taken over by the defendants, the fields were vacant and the crop therein had been cut by the plaintiff. She further stated that these days she was staying at Darvi. She denied the fact that she had left village Panjayali about 10-12 years back and had shifted to village Darvi.
16. Besides plaintiff, Kundan Singh Pradhan of the concerned Gram Panchayat also entered the witness box as PW-3. According to him, in the year 1998, plaintiff had come to him and requested him to accompany her on the ground that defendants had let loose her cattle. He further stated that he went to the spot and found that cattle of Devkoo were 100 meters away from the house on the road and Devkoo had told ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 12 him that the said cattle was her. This witness also deposed that 4-5 people were there on the spot, whereas ladies were sitting on the Verandah and in the ground floor, cattle were tied. When he asked as to .
why they had done so, defendants told him that they had not opened the cattle of the plaintiff as alleged and they also stated that the High Court had decided the case in their favour. In his cross-examination, he stated that plaintiff came to him at around 5:30 p.m. and he reached at the spot of at 6:00 a.m. He also stated that the plaintiff had informed him about her being forcibly dispossessed from the house and her cattle being let loose by the defendants and except this, nothing else was told by the plaintiff.
rt
17. One very relevant aspect of the matter which needs to be mentioned at this stage is that in his statement Kundan Singh has not mentioned the date or the month in the year 1998 when plaintiff had come to him at 5:30 a.m. in the morning.
18. Sh. Mahesh Sharma, Advocate entered the witness box as PW-4 and according to him, the plaintiff came to him on 18th June or 19th June at his house and told him that Krishan Dutt etc. had forcibly taken the possession of the land and the house. As per this witness, he advised her to lodge FIR. He further stated that no FIR was lodged. He further stated that when no action was taken, he advised the plaintiff to file a Criminal Writ Petition.
19. Sh. S.S. Sethi, Advocate entered the witness box as PW-5 and stated that on the asking of the plaintiff, Criminal Writ Petition No. 20/98 ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 13 was filed by him. In his cross-examination, he showed his ignorance to the factum of the said petition having been dismissed by the High Court.
20. Sh. Madan Lal entered the witness box as PW-6 and stated .
that he was serving in the Education Department as a Teacher and he served in High School Khatnol, District Shimla from 1995 till 2000. He stayed in the house of Devkoo Devi and used to pay rent to her. He also stated that in that house, two rooms were in his possession. He further of stated that in June 1998, the defendants had put their lock on his lock.
According to him, this continued for four days and thereafter he took some other house on rent. In his cross-examination, he stated that the rt plaintiff was residing in a nearby village in a new house at Darvi. He also stated that since 1995 when the house was rented to him, the plaintiff was not staying there. He also stated that in the house in which he was residing in the ground floor, Shivi Devi used to tie her cattle. He also stated that the factum of the defendants having put a lock on his lock was not reported to the police. He denied the fact that he had handed over the vacant possession of the room on the asking of the plaintiff to the defendant.
21. On the other hand, defendant Krishan Dutt entered the witness box as DW-1 and stated that during the pendency of the case before the learned District Judge, the parties had entered into an agreement and the defendants had agreed to pay an amount of Rs.15000/- to the plaintiff for vacating their land and house. Said agreement was entered into on behalf of the plaintiff by her counsel Sh.
::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 14T.R. Chandel and her husband Sh. Sham Lal, who was also the attorney holder of the plaintiff. However, after some time, plaintiff resiled from the said agreement. He also stated that the appeal filed by Devkoo in the .
High Court was dismissed with the direction that instead of Rs.15,000/-, the defendants shall pay Rs.20,000/- to her. This witness further stated that in May 1998, the plaintiff agreed to hand over the vacant possession of the land and house to the defendants in the presence of Sh. Prem Lal.
of This witness also stated that the house in dispute was two storeyed. In the ground floor, there was place to tie the cattle and there was one kitchen which was in a dilapidated condition. In the first floor there were rt two rooms which were in the possession of teacher Madan Lal. He further stated that the possession of these rooms was handed over by Madan Lal to the defendants on 19th June, 1998. He also stated that thereafter he had carried out repair work in the house and also constructed five rooms by spending more than Rs. 3 ½ lac upon it.
22. DW-2 Sh. Paras Ram and DW-3 Amar Singh have also supported the case of the defendants.
23. DW-4 Prem Lal stated that the plaintiff had agreed to hand over the possession of the land and house in his presence.
24. Before proceeding further, it is relevant to refer to Ex.-A, which is the copy of order passed by this Court in Criminal Writ Petition No. 20/98 filed by the petitioner. The order passed by this Court is being reproduced hereinbelow:
"We have considered the affidavit filed by Sh. A.N. Sharma, Superintendent of Police, Shimla, whereunder ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 15 he has categorically stated that after thorough investigation of the complaint of the petitioner, it is found that no case is made out in the complaint and it is also stated by the Superintendent of Police that the .
matter had been agitated by the petitioner in Civil litigation and her second appeal No. 3 of 1994 was also dismissed by the High Court, after observing that the compromise effected between the parties was valid in all respects. In view of the categorical statement of the Superintendent of Police, Shimla, we of are not inclined to grant any relief to the petitioner, as prayed for, in this proceeding. Accordingly, the writ petition is dismissed.
rt However, it is open to the petitioner to approach the criminal court, as envisaged under law, if she so desires. The criminal court will consider her case on its own merits and in accordance with law, uninfluenced by dismissal of this criminal Writ Petition."
25. One thing which is apparent from the order passed by this Court in Criminal Writ Petition No. 20/98 is this that in the affidavit which was filed by the Superintendent of Police, Shimla in the above case, it was categorically stated that after thorough investigation of the complaint of the petitioner, it was found that no case was made in the complaint. Before the learned Court below, none of the witnesses who have deposed on behalf of the plaintiff have mentioned the date on which the plaintiff was allegedly forcibly dispossessed from the house and landed property by the defendants. Thus, the plaintiff did not produce ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 16 any material on record except her bald statement to the effect that she was forcibly dispossessed by the defendants from the house and landed property on 18.06.1998. This date is very important from another .
perspective also. The suit has been filed by the plaintiff under Sections 6 and 7 of the Specific Relief Act. Under the provisions of Section 6 of the Specific Relief Act, 1963, any person who is dispossessed without his consent of immovable property otherwise than in due course of law can of recover possession thereof notwithstanding any other title that may be set up provided the suit is filed within six months from the date of dispossession. rt
26. In the present case, the alleged dispossession of the plaintiff has taken place on 18.06.1998. The suit has been filed on 17.12.1998. As per the provisions of Section 6 of the Specific Relief Act, a suit for possession under Section 6 cannot be filed after the expiry of six months from the date of dispossession. The suit for possession was filed by the plaintiff on 17.12.1998. Be that as it may, there is no independent witness examined by the plaintiff to prove that on 18.06.1998, she was forcibly dispossessed from the house as well as land by the defendants and her cattle were also let loose by them. There is no eye witness of the plaintiff being dispossessed by the defendants.
27. Not only this, even otherwise, the version as has been put forth by the plaintiff in the plaint has been falsified by her own witnesses.
In para-9 of the plaint, the plaintiff has mentioned as under:
"9. That on 18.6.98 at about 4.45 AM, the defendants No. 1 to 3 got the land and two storeyed ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 17 building in their possession through defendants No. 4 to 12 forcibly dispossessing the plaintiff without her consent and otherwise than in due course of law. The said defendants have committed lurking house trespass at .
night and in furtherance of their common intent of all the defendants, Sh. Hemanand, outraged the modesty of the plaintiff, besides, committed theft of movable property worth about Rs.46,150/- including deodar wooden plancks, wooden alimirah, and other house hold articles, the extract of the same is attached with the plaint."
of
28. Thus, according to the plaintiff, not only was she physically dispossessed from the house and the land, defendant Hema Nand also rt outraged her modesty. However, as per PW-6 Madan Lal, both the rooms in issue were in his possession and it was Shibi Devi who used to tie her cattle in the ground floor of the said house and not the plaintiff. This witness has also stated in his cross-examination that since the year 1995 when he started residing in the said house, plaintiff Devkoo Devi was not staying there. Not only this, he has expressed his ignorance to the factum of having handed over the house in a vacant possession to the defendants on 19th June, 1998. A copy of the Criminal Writ Petition filed by the plaintiff in this regard is on record as Ex. PW1/B. Para-7 of the same is reproduced hereinbelow:
"7. That in the meanwhile, the respondents No. 5 to 8 with their relatives entered into possession of the land and building which is the subject matter of the abovesaid execution proceedings on 18.06.98 about 4.45/5:00 A.M. and forcibly dispossessed the petitioner ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 18 by committing cognizable offence like lurking house trespass by night with the intention to steal and outrage the modesty of a woman, theft, mischief and attempt to murder etc. etc. the detail of which are given in the .
complaint to the S.H.O./respondent No. 3 and S.P. Shimla/respondent No. 2."
29. A perusal of the averments made in para-9 of the plaint and para-7 of the Criminal Writ Petition demonstrate that whereas it has been of alleged in the plaint that the modesty of the plaintiff was outraged by Hema Nand, the allegations in the Criminal Writ Petition were to the rt effect that house trespass was committed by the defendants with the intention to steal and outrage her modesty. While deposing in the Court as PW-1 on oath, plaintiff has stated that on 18th June when she was sleeping in the said house at about 5:00 a.m., Tej Ram and his entire family knocked her door and when she resisted the same, she was pushed out of the house. There is no mention in her statement that her modesty was outraged by Hema Nand. Not only this, she has stated in the witness box that Master Madan Lal was put up on rent in the other room. As already mentioned above, this deposition of PW-1 is totally contrary to what Madan Lal has stated because according to Madan Lal, both the rooms were on rent with him and Devkoo Devi was not putting up in the disputed premises.
30. In my considered view, it is apparent and evident from what has been discussed above that the case as put forth by the plaintiff and the evidence produced on record by her to substantiate her case is ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 19 neither cogent nor trustworthy. It cannot be said that on the basis of evidence produced on record by the plaintiff both ocular as well as documentary that she had proved that she was in possession of the .
disputed premises and land and was forcibly dispossessed on 18.06.1998 by the defendants.
31. A perusal of the judgment passed by learned trial Court demonstrates that it has totally misread the testimonies of PW-1 Devkoo of Devi, PW-3 Kundan Singh as well as PW-6 Madan Lal. Learned trial Court has held that from the facts of the case, it is clearly borne out that the plaintiff was in possession of the suit property for a very long time. In rt order to arrive at said conclusion, learned trial Court placed reliance on the previous litigation which existed between the plaintiff and the defendants. Learned trial Court thereafter held that it was evident from the testimony of PW-1 Devkoo Devi that she was residing in the disputed premises in the ground floor, whereas upper floor of the house was rented out to Master Madan Lal and on 18.06.2006, she was forcibly thrown out of the house. This finding returned by the learned trial Court is totally misconceived. Learned trial Court has erred in not appreciating that besides her bald statement to the effect that she was residing in the disputed premises and on 18.06.1998 she was forcibly thrown out of the said property, no evidence to prove this factum has been placed on record by her. The conclusions arrived at by learned trial Court that the case of the plaintiff was duly corroborated by the testimony of PW-6 is totally perverse. PW-6 has nowhere stated that on 18.06.1998, he was present ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 20 in the disputed property and the plaintiff was dispossessed from the disputed property in his presence. A perusal of the testimony of said witness demonstrates that he was not present in the disputed property as .
on 18.06.1998. He has further stated that he had taken on rent two rooms in the upper story of the disputed property from Devkoo Devi and Devkoo Devi was not residing there since 1995. He has categorically stated in his examination in chief as under:
of "Is makaan mai mere paas do kamere thai. Niche wale kamaro mai Devkoo ke pashu rahete thai."
rt In his cross-examination, he has stated as under:
"1995 se jab se makaan mere paas tha, Devkoo Devi vahan na rahati thi. Jis Makaan mai main raheta tha, iske niche ke manzil mai Shibi Devi kabhi kabhi apne pashu bandhati thi."
On the other hand, plaintiff has stated in her examination-in-
chief that she had rented out one room to Madan Lal. It is not even her case that she was residing in the ground floor of the building. In this view of the matter, the finding returned by the learned trial Court to the effect that the plaintiff had categorically stated that she was residing in the house in dispute on its ground floor is perverse as the said finding is not borne out from the evidence produced on record by the plaintiff.
32. Similarly, the findings returned by the learned trial Court to the effect that PW-3 Kundan Singh corroborated the case of the plaintiff ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 21 and proved that the plaintiff was residing in the house in dispute alongwith one Sadhu for the last 15-20 years are also perverse. PW-3 has nowhere stated that the alleged dispossession of the plaintiff from the .
disputed premises or land took place in his presence.
33. I have carefully examined the statement of PW-3 and this witness has no where stated that plaintiff for the last 15-20 years was residing in the house in dispute. All this that this witness has deposed is of that the defendant was residing in Panjayali for the last 15-20 years with one Sadhu. He has no where stated that the plaintiff was residing in the disputed house for the last 15-20 years as has been held by learned trial rt Court to have been deposed by PW-3. Therefore, this finding returned by learned trial Court is also perverse and is a result of complete misreading and mis-appreciation of the testimony of PW-3.
34. As far as statement of PW-6 Madan Lal is concerned, learned trial Court has failed to appreciate that this witness very clearly and categorically had stated that Devkoo Devi was not residing in the disputed house since 1995.
35. Accordingly, in my considered view, the findings returned by the learned trial Court to the effect that it stood proved on the basis of evidence placed on record by the plaintiff that she was forcibly dispossessed except in accordance with law from the suit property on 18.06.1998 by the defendants are totally perverse and not sustainable.
The findings so returned by the learned trial Court are the result of complete misreading and mis-appreciation of statements of PW-1 Devkoo ::: Downloaded on - 15/04/2017 21:02:21 :::HCHP 22 Devi, PW-3 Kundan Singh and PW-6 Madan Lal. Not only this, learned trial Court has also not correctly appreciated the testimony of the witnesses produced in the Court by the defendants including statement .
of defendant Krishan Dutt, who has entered the witness box as DW-1 and had categorically stated that the premises in dispute were in fact handed over to the defendants by the plaintiff herself.
36. Accordingly, the revision petition is allowed and judgment of and decree passed by learned Civil Judge (Jr. Division), Court No. (V), Shimla in Civil Suit No. 370-1 of 99/98 dated 30.07.2007 is set aside with costs. Miscellaneous application(s), if any, stand(s) disposed of.
rt (Ajay Mohan Goel)
Judge
August 17, 2016
(bhupender)
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