Bal Kishan vs Durga Ram and Others

V.K. Ahuja, J.—This is a Regular Second Appeal u/s 100 CPC filed by the Appellant against the judgment and decree passed by the learned District Judge, Solan, dated 18.4.2000, vide which he dismissed the appeal filed by the Appellant against the judgment and decree of the Court of learned Senior Sub Judge, Solan, dated 15.1.1999, vide which he had dismissed the suit for injunction and possession as against the Appellant.

Briefly stated, the facts of the case are that the Appellant hereinafter referred to as ''the Plaintiff'' filed a suit for injunction and possession as against Respondent No. 1 hereinafter referred to as ''the Defendant''. It was alleged by the Plaintiffs that they are owners in possession of the suit land, as detailed in Para No. 2 of the plaint, measuring 3 Biswas. It was alleged that in the year 1981, in the month of February-March, the Defendant forcibly encroached upon the suit land. The predecessor-in-interest of the Plaintiff, Sobha Ram, made a complaint and the Panchayat recorded a compromise, vide which the Defendant had agreed to exchange 3 biswas of land and had also agreed to pay a sum of Rs. 100/-. But, the Defendant failed to comply with the said compromise. Thus, it was alleged that the Defendant had forcibly encroached upon the suit land and the suit for injunction and possession was filed by the Plaintiffs.

Defendant took up preliminary objections. On merits, the Defendant pleaded that his house and courtyard are in existence over the suit land for the last more than 100 years. In a family partition, the land was allotted to the Defendant, on which he raised construction in the year 1970 after demolishing the old structure. Thus, he pleaded that he has become owner of the suit land by way of adverse possession.

On the pleadings of the parties, the following issues were settled by the learned trial Court:

Whether the Plaintiffs are owners of the land in suit as alleged ? OPP.

Whether the Plaintiffs are entitled to the relief of permanent prohibitory injunction as prayed ? OPP.

Whether the Defendant has encroached any part of the suit land, if so, to what extent ? OPP.

If issue No. 3 is proved in the affirmative whether the Defendant has become owner thereof by way of adverse possession ? OPD.

Whether the Plaintiffs are estopped from filing the present suit by his acts and conduct etc., as alleged ? OPD.

Whether the earlier suit was withdrawn by the Plaintiffs with permission to file fresh one on the same cause of action as alleged ? OPD.

Whether the suit is within limitation ? OPD.

Whether the suit is bad for non-joinder of necessary parties ? OPD.

Whether the suit in the present form is not maintainable ? OPD.10.

Relief.

The learned trial Court vide its impugned judgment held that the Plaintiff is not entitled to the relief of possession and that the Defendant has become owner of the suit land by way of adverse possession.

On appeal, the learned District Judge vide its impugned judgment upheld the findings recorded by the learned trial Court.

I have heard the learned Counsel for the parties and have gone through the record of the case.

On appraisal of the evidence, it is clear that the main question for consideration is as to whether the Defendant has been able to allege and prove that he has become owner of the suit land by way of adverse possession. A perusal of the copy of Jambandi for the year 1986-87, Ext. PW2/A, shows that the suit land is recorded in possession of the predecessor-in-interest of the Plaintiffs as "Gair Marusi". The presumption of correctness is attached to the entry in the Jamabandi showing the Plaintiff in possession of the suit land as a tenant, to rebut this cogent, convincing and reliable evidence was required to be led by the Defendant to prove that he has become owner of the suit land by way of adverse possession. However, the Defendant has failed to plead and prove this fact that he has become owner of the suit land by way of adverse possession.

The Defendant, in his written statement, has pleaded that his house and courtyard are in existence since the time of his grand father, i.e., for the last more than 100 years, who used to reside in that house. Thereafter, the father of the Defendant resided in the house. In the year 1970, in a family partition, the land came to the Defendant including the constructed portion. He pleaded that he raised a new house on the same old foundation in the year 1972. Thus, he pleaded that his possession is hostile and continuous to the knowledge of the Plaintiff. To prove the allegation that the Defendant raised a new house in the year 1972 and his possession became adverse as against true owners, i.e, Plaintiffs, Defendant had only stepped into the witness-box as DW1. But, he nowhere said that he came in possession of the land in the year 1970, raised construction in the year 1972, became owner in possession of the suit land by way of adverse possession and his possession is hostile and continuous to the knowledge of the Plaintiff. He simply stated that when the land came in his share in the year 1970, he raised a house and he is owner in possession of the house. He nowhere alleged the date when he took the possession of the land, though he had alleged that he raised construction in the year 1972. But, no date or month was specified or alleged. Even, in his statement, he has not stated that he is in possession since 1972 by raising construction of a house. Thus, he has failed to substantiate his allegations made in his written statement that he raised construction in the year 1972, which was within the knowledge of the Plaintiff and as such, his possession was adverse as against the true owners. The solitary statement of the Defendant as DW1 was not sufficient to prove that he has become owner by way of adverse possession. Since there was no pleading or proof on record, therefore, presumption of correctness attached to entry in the copy of Jamabandi for the year 1986 87. Ext.PW2/A, was not rebutted, which shows that the Plaintiff is in possession over the suit land till the year 1986-87.

From the above discussion, it follows that the Defendant had failed to prove that he was in possession of the suit land by way of adverse possession for over 12 years and the pleadings with regard to adverse possession are required to be alleged and evidence has to be led to prove the adverse possession over the suit land, which was lacking in the present case. Therefore, the findings of the learned trial court as well as learned appellate court holding that the Defendant has become owner of the suit land by way of adverse possession are liable to be set aside. The Plaintiff is accordingly held to be entitled to a decree of possession and as such, the suit filed by the Plaintiff for possession of the suit land is decreed. The appeal filed by the Appellant is allowed accordingly. The parties are left to bear their own costs. Decree sheet be prepared accordingly.