Himachal Pradesh High Court
Naresh Kumar And Others vs Chuni Lal on 17 October, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.189 of 2006.
Reserved on : 28.9.2016.
Decided on: 17.10.2016.
.
Naresh Kumar and others. ...Appellants.
Versus
Chuni Lal ...Respondent.
Coram
of
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the appellants : Mr. Adarsh Sharma, Advocate.
For the respondent :
rt Mr. H.C. Sharma, Advocate.
Chander Bhusan Barowalia, Judge.
The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellants against the judgment and decree dated 9.12.2005, passed by the learned Additional District Judge, Mandi, in Civil Appeal No.71 of 2003, whereby the learned Appellate Court has affirmed the judgment and decree passed by learned Civil Judge (Junior Division), Karsog, District Mandi, in Civil Suit No.123 of 2001, dated 5.3.2003.
2. Briefly stating facts giving rise to the present appeal are that respondent/plaintiff (hereinafter referred to as 'the plaintiff') filed a suit for possession against the appellants/defendants (hereinafter referred to as 'the defendant') on the allegations that he is owner-in-
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 2possession of land comprised in Khata/Khatauni No.118/172, Khasra No.420 and 421 measuring 0-2-4 bighas situated in Mauja Karsog, District Mandi, H.P. Earlier, he had filed a suit for permanent prohibitory .
and mandatory injunction, in the year 1996 and the same was decided on 22.12.1999, as per which, the same was partly decreed for permanent prohibitory injunction, but relief of mandatory injunction was denied to him. As per the plaintiff, he is permanent resident of Pangna, of which is about 30 KM from Tehsil Head Quarter, Karsog. Defendant No.1 taking advantage of his absence raised construction in the form of rt latrine over Khasra No.421 measuring 0-0-10 bighas, which act on his part was highly illegal and wrongful. Khasra No.420/1 measuring 0-0-8 bighas, defendants No.2 & 3 had kept wooden shuttering after the decision of earlier suit. Although, he had requested the defendants to remove the shuttering from Khasra No.420/1, but they started making lame excuses. Since, he is rightful owner of the suit land, he is legally entitled to recover it possession from the defendant. The cause of action accrued on 22.12.1999, when his earlier suit, was partly decreed and on 28.1.2001, when defendants No.2 & 3 kept wooden shuttering over part of the suit land i.e. Khasra No.420/1 and on 22.8.2001, when the defendants finally refused to deliver the possession of the suit land to him.
3. The suit was resisted and contested by raising preliminary objections qua limitation, estoppel, locus standi, valuation ::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 3 and barred under Order 2 Rule CPC. It is contended that previously Mohan, Kanshi Ram and Amar Nath were owners of the suit land, which was already in possession of their (defendant's) father and this fact was .
well within the knowledge of the plaintiff, when he had purchased the land comprising in Khasra Nos.421 and 420 from the previous owner. It was further contended that when the plaintiff had filed a previous suit, at that time, they had already constructed latrine over Khasra No.421 of and had been using land bearing Khasra No.420/1, for stacking of wood material etc. The latrine was constructed in the year 1984 and at that rt time neither previous owner nor the plaintiff had raised any objection.
Their possession over the suit land remained quite open, peaceful, continuous, uninterrupted, hostile and notorious to the knowledge of the plaintiff and previous owners since July, 1984 and they did not take any steps to get back the same. In these circumstances, their possession had ripened into absolute title in the month of July, 1996 by virtue of adverse possession. Thus, all right, title and interest of the plaintiff over the suit land stood lost and extinguished in their favour.
Since at the time of filing of previous suit, the plaintiff was aware about their possession over the suit land and no relief for possession was claimed. By filing replication, the plaintiff has reasserted and reaffirmed his own allegations by denying those of defendants. It was specifically averred that latrine over Khasra No.421 was constructed by the defendants during the pendency of earlier suit i.e. after 3.3.1997, when ::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 4 they took forcible possession of the same. As far as Khasra No.420/1 is concerned, they kept shuttering over it on 22.12.1999.
4. The learned trial Court framed following issues on .
22.4.2002 :
"1. Whether the plaintiff is owner-in-possession of land comprised in Khata Khatauni No.118/172 Khasra Nos.420, 421 measuring 0-2-4 bighas situated at Mauja Karsog ? OPP of
2. Whether defendant No.1 has raised construction in the form of latrine over Khasra No.421 measuring 0-0-10 bighas, if so whether rt plaintiff is entitled to the possession as prayed ? OPP.
3. Whether the defendant Nos.2 & 3 have kept wooden shuttering over Khasra No.420/1 measuring 0-0-8 bighas after decision of the suit bearing No.59 of 1996 decided on 22.12.1999 if so whether plaintiff is entitled for possession thereupon ? OPP.
4. Whether the defendants have raised construction during the pendency of the suit bearing No.59 of 1996 decided on 22.12.1999, if so its effect ? OPP.
5. Whether the suit is properly valued for the purpose of court fee and jurisdiction ? OPP.
6. Whether the suit is barred under Order 2 Rule 2 CPC ? OPD.
7. Whether the suit is within limitation ? OPP.
8. Whether the plaintiff is estopped to file the present suit by his own act, conduct and deeds ? OPD.::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 5
9. Whether the plaintiff has no locus standi to file the present suit ? OPD.
10. Whether the defendants had already constructed .
their latrine over Khasra No.421 and they have been using the land in Khasra No.420/1 measuring 0-0-8 bighas for stacking of wooden material etc. since July 1984 and the previous owner as well as plaintiff did not object so ? OPD.
11. Whether the possession of defendants over the of suit land since July 1984 has become adverse to the plaintiff ? OPD.
12. Relief. "
5. rt The learned trial Court has decided Issue Nos.1 to 5 and 7 in affirmative, Issue Nos.6, 8 to 11 against the defendant and decreed the suit. Thereafter, the appeal was maintained before learned Addl.
District Judge, Mandi and the same was dismissed. Hence, the present regular second appeal, which was admitted on the following substantial question of law:
"What is the effect of the deposition of plaintiff Chuni Lal made by him as PW-1 that the encroachment was made in the year 1997 (when the earlier suit was pending), when the same is contrary to the pleaded version that the encroachment was made after the decision of the earlier suit (the earlier suit was decided in the year 1999)?"
6. Learned counsel appearing on behalf of the plaintiff has argued that the learned Court below has not appreciated the statements ::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 6 of PW-6, DW-1 and DW-2 correctly. He has further argued that the suit was barred under Order 2 Rule 2 CPC, as in the earlier suit permission of the Court was not taken to institute the suit for mandatory injunction .
afterwards at the time, the earlier suit was maintained before the learned Court below.
7. On the other hand, learned counsel appearing on behalf of the defendant has argued that when the earlier suit was instituted, of there was no structure over the suit land and when the structure was raised the present suit was instituted. He has referred case law in rt Inacio Martins (deceased) through LRs vs. Narayan Hari Naik and others, 1993 (2) S.L.J. 2219, Deva Ram and another vs. Ishwar Chand and another, 1996 (1) S.L.J 711 and Sh. Narain Dass and others vs. Smt. Vidya Devi through her LRs and others, Latest HLJ 2014 (HP) 876.
8. In rebuttal, learned counsel appearing on behalf of the plaintiff has argued that the learned Court below has not taken into consideration the fact that there was no encroachment proved on record, so the appeal is required to be allowed.
9. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail.
10. As per the plaintiff, the defendants have taken into consideration the advantage of adverse possession. The jamabandi Ex.P-1 for the year 1999-2000 shows that the plaintiff is owner-in-
::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 7possession of the suit land comprised in Khasra No.420 and 421, measuring 0-2-4 bighas. The defendants have taken the plea of adverse possession in the written statement qua Khasra No.421, .
measuring 0-0-10 bighas and Khasra No.420/1 measuring 0-0-8 bighas.
It is also admittedly pleaded by the defendants that they have constructed latrine over Khasra No.421 in the year 1984 and this fact was well in the knowledge of plaintiff as well as previous owner.
of Similarly, they have pleaded that Khasra No.420/1 measuring 0-0-8 bighas land is used for stacking of wooden materials. Further, they rt have pleaded that neither the previous owners nor the plaintiff has taken any steps in taking back the possession and thereby raising a plea of adverse possession. Now, it is relevant to determine whether defendants have perfected their possession into title by virtue of adverse possession over Khasra No.421 and 420/1. There is no dispute that earlier suit was filed by the plaintiff against the defendants and the same was partly decreed for permanent prohibitory injunction and relief of mandatory injunction was denied. The defendants are asserting their possession over Khasra No.420/1 and 421, since the year 1984. In reply to the suggestion of PW-1, he has stated that Khasra No.421, measuring 0-0-10 bighas, there is a latrine and over Khasra No.420/1 measuring 0-0-8 bighas, there is 'Dhara' (Wooden Khoka). The stand of the defendant is that they are coming in possession of Khasra No.420/1 and 421, since the year 1984 and this fact was well in the knowledge of ::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 8 previous owner as well as the plaintiff. DW-1 Jai Gopal, defendant has given version that Mohan Lal, Kanshi Ram and Amar Nath were owners of Khasra No.420/1 and 421 and he is asserting the possession over .
these Khasra numbers since July, 1984. As per his version, nobody has interfered in their possession since 1984 and now in the year 1996 possession matured into ownership. The necessary ingredients of adverse possession i.e. 'possession to the knowledge of owner' is not of categorically stated by this witness. His version also goes to show that he does not know whether the plaintiff is in knowledge of their khasra rt numbers as stated by him in Khasra No.420/1 and 421. Hence, necessary ingredients of adverse possession is not proved from the statement of defendant. Defendant in his examination-in-chief has also not categorically stated qua the ownership of plaintiff over Khasra No.420/1 and 421 and also not stating what is starting point of adverse possession against the plaintiff. He is only making reference to previous owners, namely, Mohan Lal, Kanshi Ram and Amar Nath. It is true that the conditions for claiming adverse possession is admitted ownership of others. It is also equally true that mere long possession, however of any length of time, is not enough to prove adverse possession. The defendants in the previous suit have not taken a specific plea of adverse possession qua the suit land as revealed from their written statement Ex.PW4/B. This fact is also breaking the plea of adverse possession raised by the defendants.
::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 911. The defendants have failed to prove the adverse possession while appearing as DW-1 in the witness box. He has stated that he is not aware whether the possession of the defendant is in the .
knowledge of the plaintiff. DW-2 has simply stated that he was employed by defendants as 'Mason' while raising construction of latrine in the year 1984. DW-3 no doubt tries to say that the possession of the defendants is over disputed land since 1985, but mere possession, of however so long, is not enough to prove the adverse possession.
Plaintiff is coming on the basis of title for the relief of possession qua rt the suit land. Moreover, it has admittedly come in the statement of DW-1 that in the year 1996, there was some interim orders obtained by the plaintiff against them. Admittedly, as per Ex.P-2, defendants were restrained not to interfere in the suit land. From these facts, it can safely be concluded that the plaintiff filed earlier suit against the defendants only when there was some cause of action against the defendants in which he succeeded getting the relief. The case of the plaintiff is also that the defendants started raising construction during the pendency of previous suit in the year 1997. This fact is also stated by PW-1 and PW-3. PW-3 knows both the parties and he has house adjoining to the suit land and also stating that the defendants have raised latrine and 'Dhara' in the year 1997. The evidence led by the plaintiff is inspiring confidence in comparison to the evidence led by the defendants and his witnesses. The version given by DW-2 in ::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 10 comparison to the version given by PW-3 is inspiring less confidence, whereas PW-3 is testifying a fact by stating that the construction raised by the defendants in the year 1997. Therefore, it can be safely .
concluded that the defendants have raised construction over Khasra No.421 and 420/1 in the year 1997 during the pendency of suit bearing No.59 of 1996. The defendants have failed to prove that the construction was raised in the year 1984 and that was in the knowledge of of plaintiff. The defendants have failed to prove adverse possession, as claimed by them qua Khasra No.420 and 421 and plaintiff is coming on rt the basis of title for claiming possession of suit land for which he has also placed on record jamabandi Ex.P-1. Tatima Ex.PW6/A, has also proved on record. It is also clear that defendant No.1 has raised construction in the form of latrine over Khasra No.421 measuring 0-0-10 bighas and this fact is also admittedly pleaded by the defendant, but taking a plea of adverse possession, which plea is not found sustainable.
Similarly, it is also admitted that the defendants are using Khasra No.420/1 measuring 0-0-8 bighas for stacking wooden material. The plea of adverse possession has also not proved by the defendants.
Therefore, it can be safely concluded that the plaintiff is owner of land comprised in khasra No.420 and 421 measuring 0-2-4 bighas and he is entitled for the possession of suit land comprised in Khasra No.420 measuring 0-0-10 bighas and comprised in Khasra No.420/1 measuring 0-0-8 bighas, which is also shown in tatima Ex.PW6/A. Defendants ::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 11 have taken a plea that the present suit is barred under provisions of Order 2 Rule 2 C.P.C. It is contended that the plaintiff has not taken a plea of possession in the earlier suit, but this plea taken by the .
defendants is not sustainable. It is for this reason that the plaintiff has proved a distinct and separate cause of action in the present case. It has been proved on record that the defendants have raised construction in the year 1997 and, therefore, suit of the plaintiff for possession of cannot be barred under Order 2 Rule 2 C.P.C.
12. Hon'ble Apex Court in Inacio Martins (deceased) rt through L.Rs. vs. Narayan Hari Naik and others, 1993 (2) S.L.J. 2219, wherein it has been held as under :
"The next contention which found favour with the High Court was based on the language of Order 2 Rule 2 (3) of the Code of Civil Procedure. The submission regarding constructive res judicata was also based on this very provision. Now Order 2 concerns the framing of a suit. Rule 2 thereof requires that the plaintiff shall include the whole of his claim in the framing of the suit. Sub-rule (1) of Rule 2, inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any court he will not be entitled to claim that relief in any subsequent suit. However, sub-rule (3) of Rule 2 provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted. It is well known that Order 2 Rule 2 CPC is based on the salutary principle ::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 12 that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs. To preclude the plaintiff from so doing it is provided that if he .
omits any part of the claim or fails to claim a remedy available to him in respect of that cause of action he will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the court. But the Rule does not preclude a second suit based on a distinct cause of action. It may not be out of place to clarify that the doctrine of res judicata of differs from the rule embodied in Order 2 Rule 2, in that, the former places emphasis on the plaintiff's duty to exhaust all available grounds in support of his claim while the latter rt requires the plaintiff to claim all reliefs emanating from the same cause of action. The High Court is, therefore, clearly wrong in its view that the relief claimed is neither relevant nor material. Now, in the fact-situation of the present case, as we have pointed out earlier, the first suit was for an injunction and not for possession of the demised property.
The first suit was dismissed on the technical ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie. Once it was found that the plaintiff was not in actual physical possession of the demised property, the suit had become infructuous. The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968. The allegation in the former suit was that the plaintiff was a lessee and his possession was threatened and, therefore, he sought the court's assistance to protect his possession by a prohibitory injunction. When in the course of that suit it was found that the plaintiff had in fact been dispossessed, there was no ::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 13 question of granting an injunction and the only relief which the court could have granted was in regard to the declaration sought which the court held could not be .
granted in view of the provisions of Specific Relief Act.
Therefore, the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff. The cause of action for that suit was not on the premises that he had in fact been illegally and forcibly dispossessed and needed the court's assistance to be restored to possession. Therefore, the of subsequent suit was based on a distinct cause of action not found in the former suit and hence we do not think that the High Court was right in concluding that the suit was barred rt by Order 2 Rule 2(3) of the Code of Civil Procedure. It may be that the subject matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent suit was not identical to the relief claimed in the previous suit. The High Court was, therefore, wrong in thinking that the difference in the reliefs claimed in the two suits was immaterial and irrelevant. In the previous suit the relief for possession was not claimed whereas in the second suit the relief was for restoration of possession. That makes all the difference. We are, therefore, of the opinion that the High Court was completely wrong in the view that it took based on the language of Order 2 Rule 2 (3) of the Civil Procedure Code."
In Deva Ram and another vs. Ishwar Chand and another, 1996 (1) S.L.J 711, wherein it has been held as under :
"The subsequent suit was brought by the respondents for recovery of possession on the ground that they were the owners of the land in suit and were consequently entitled to recover its possession. The cause of ::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 14 action in the subsequent suit was, therefore, entirely different. Since the previous suit was for recovery of sale price, the respondents could not possibly have claimed the .
relief of possession on the basis of title as title in that suit had been pleaded by them to have been transferred to the defendants [appellants]. The essential requirement for the applicability of Order 2 Rule 2, namely, the identity of causes of action in the previous suit and the subsequent suit was not established. Consequently, the District Judge as also the High Court were correct in rejecting the plea raised by the of appellants with regard to Order 2 Rule 2 of the Civil Procedure Code."
13. rt Learned counsel appearing on behalf of the defendant has also relied upon a decision of Hon'ble High Court of Himachal Pradesh rendered in a case titled Sh. Narain Dass and others vs. Smt. Vidya Devi through her L.Rs. and others, Latest HLJ 2014 (HP) 876, wherein it has been held as under :
"Submission of learned Advocate appearing on behalf of the appellants that forefather of appellants was in possession of the suit land since 1965 and long possession ripened into right of adverse possession over suit land and on this ground appeal be accepted is rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that prolonged possession by itself does not prove the factum of ownership by adverse possession. See: 1992 (2) Sim.L.C 248 titled Devi Chand Vs. Raj Dulari. It is well settled law that a person claiming adverse possession over immovable property should prove that possession was peaceful, open continuous and hostile to the knowledge of the true owner.::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 15
See: AIR 1999 Delhi 281 titled Smt.Rama Kanta Jain Vs. M.S. Jain and other. Also See: 1996 (2) Civil Court Cases 118 HP titled Jangbahadru Vs. Smt Juthi Devi and others.
.
It is well settled law that adverse possession is based upon unlawful possession which has become lawful with the passage of time subject to certain conditions. Hence it is held that appellants did not prove all ingredients of adverse possession over the suit property in accordance with law. Even as per jamabandi entries Ext.P-1 placed on record for the year 1993-94 in the ownership column and in of possession column of suit land names of appellants did not figure. It is well settled law when there is conflict between oral evidence and documentary evidence then documentary rt evidence always documentary evidence is not rebutted by examination of prevails unless public official who prepared public document in discharge of official duty. It was held in case reported in 1999(1) SLJ page 16 titled Ram Krishan vs. Geeta Devi and others that oral evidence is not sufficient to rebut the entries incorporated in revenue record in discharge of official duty unless the revenue official who had incorporated the entries in public record is not examined in Court. None of the witness examined by appellants have stated in their testimony that possession of appellants became hostile to the legal rights of deceased plaintiff or her L.Rs. Hence it is held that ingredients of hostile possession not proved on record by way of oral testimony of witness examined by appellants."
14. From the above, it is clear that even if the encroachment was made in the year 1993, it makes no effect as the defendants have failed to prove the encroachment to the knowledge of the plaintiff, as ::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 16 the defendant witnesses itself stated that the defendant has no knowledge whether the plaintiff was having any knowledge with regard to the encroachment, as has been held earlier. The suit was filed for .
the relief of permanent prohibitory injunction, as the structure in the form of latrine and 'Dhara' was raised, the suit for mandatory injunction was maintained. The cause of action was not identical, so the suit is not barred under Order 2 Rule 2 CPC, holding that the suit is barred of under Order 2 Rule 2 CPC, the cause of action should be identical which is not proved by the defendants in the instant case. So, the findings rt recorded by the learned Courts below are as per law, needs no interference. As far as the encroachment is concerned, the defendants have failed to prove that it was in the knowledge of the plaintiff.
15. In view of the above, substantial question of law as framed on 26.6.2006, is answered accordingly holding that the subsequent suit for mandatory injunction for the structures raised much after the earlier suit and so the subsequent suit is maintainable for mandatory injunction, as has already been decided by Hon'ble Apex Court.
16. In view of the above discussion, there is no illegality and infirmity in the judgment and decree passed by the learned Appellate Court, so there is no need for interference. In these circumstances, the appeal of the appellant is without merit and deserves dismissal, hence the same is dismissed. However, in the peculiar facts and ::: Downloaded on - 15/04/2017 21:23:16 :::HCHP 17 circumstances of this case, parties are left to bear their own cost (s).
Pending application (s), if any shall also stands disposed of.
.
(Chander Bhusan Barowalia),
17th October, 2016 Judge
(CS)
of
rt
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