Dila Ram vs Rajinder Singh and Others

Tarlok Singh Chauhan, J.—The plaintiff is the petitioner, who has filed this petition, under Article 227 of the Constitution of India for setting-aside the order dated 20.12.2013 passed by the learned trial court whereby the application preferred by him under order 7, Rule 14 of the Code of Civil Procedure, for adducing additional evidence came to be rejected.

The facts in brief may be noticed. The plaintiff filed a suit for permanent prohibitory injunction as well as for declaration to the effect that he has become exclusive owner by way of adverse possession of the land comprised in khewat No. 51, khatauni No. 151 and khasra No. 220 measuring 0-00-42 hectares on which he had constructed a building in the year 1986 and the land comprised in khewat No. 51, khatauni No. 179-190 measuring 0-00-69 hectares on which partition of land a breast wall cemented stair case in the form of passage to the top floor had been constructed by the plaintiff in the year 1986. Consequential relief was also sought to the effect that the revenue officials be directed to carry out necessary correction in the revenue record. A decree for permanent prohibitory injunction was also prayed for by restraining the respondents from interfering in the possession of the petitioner over the land and from dispossessing.

The suit is being resisted and contested by the defendants- respondents, who filed their written statement, wherein number of preliminary objections like maintainability, locus-standi, estoppel, suppression of material facts, mis-joinder and non-joinder of parties etc. have been raised. On merits, the claim of the plaintiff has been denied. The learned trial court on 18.12.2006 framed the issues and the evidence of the plaintiff was closed by the order of the court on 9.9.2009.

Before the matter could be heard, the petitioner preferred the impugned application, wherein it was alleged that the plaintiff had earlier produced a plan, which is Ex. PW 8/B and letter Ex. PW 8/A which had been proved by way of secondary evidence. The official from the municipal corporation had then deposed as AW 3 that the plan Ex. PW 8/B was not traceable. However, after the application of the application under section 65 of the Evidence Act for leading secondary evidence had been allowed, he had summoned the official from the municipal corporation, Shimla, who was examined as PW 8 and for the first time this official had stated that the file which was not traceable earlier was now available with the municipal corporation and he brought the said file on that date, which was evident from his statement recorded on 15.9.2012. It was further alleged that the petitioner had applied for the documents from the said file to be supplied by him but the official of the municipal corporation took undue long time in supplying the said documents, which were eventually supplied only on 24.7.2013 and the application thereafter moved had been without any undue delay.

The respondents contested the application, wherein preliminary objections were taken to the effect that the application was belated, the petitioner had not come with clean hands and had suppressed the material facts. There was no reasonable and probable cause and the application was being filed simply in order to delay the outcome of the suit. The plea of estoppel was also raised. On merits, apart from reiterating the preliminary submissions, it was submitted that there was no explanation whatsoever offered by the petitioner as to why these documents had not been filed earlier. There was no due diligence on the part of the petitioner and therefore, the application should be dismissed.

The learned trial court dismissed this application on the ground that the case had been listed for the first time for arguments on 21.12.2012 when the parties at two occasions had sought adjournments, while on the third date the petitioner had filed an application for additional evidence on 26.2.2013. But even at that time the petitioner made no mention about the documents now sought to be produced. The learned trial court further concluded that though the petitioner as per his own showing had come to know of the documents on 15.9.2013 but then there is no explanation as to why the application was not moved promptly.

I have heard the learned counsel for the parties and have gone through the records of the case.

At the very outset, it may be noticed that a perusal of the plaint annexed with the petition as Annexure P-1 would reveal that plaintiff had sought for the following decrees:-

"(a) A DECREE for declaration be passed declaring that the plaintiff has become exclusive owner by way of adverse possession of land comprised in Khewat No. 51, Khatoni No. 151 and Khasra 220 measuring 0-00-42 Hectares on which piece of land a portion of building of plaintiff stood constructed since 1986 and contiguous piece of land comprised in Khewat No. 51 Khatoni No. 190 min khasra No. 219 (old Khasra No. 879/806/772/451) measuring 0-00-11 Hectares on which two meter wide cemented Galli covered with cemented RCC lintel Projection/Chajja of building of plaintiff stood constructed since 1986 and portion of land comprised in Khewat No. 51, Khatoni No. 179 and 190 min Khasra No. 209 and 239 (old khasra No. 879/806/772/451) measuring 0-00-69 Hectares square meters on which portion land a breast wall, the cemented stair case in the form of passage to the top floor through the iron gate on the breast wall, Iron gate, Under ground cemented water storage tank, part etc. etc. of plaintiff stood constructed since 1986 total area of which entire land comes to 0-01-22 Hectares (42 sq. meters + 11 sq. meters + 69 sq. meters = 122 sq. meters) situated at Mauja Kuftadhar, Pargana Pagogi, Tehsil and District Shimla as shown in Missal Hquiat Bandobast Zadid 2002-2003 and also identified and described in red colour in sketch Plan annexed as annexure ''A'' to the plaint and further declaring that all rights, title and interest of defendants and all other concerned persons has come to an end after the expiry of period of 12 years from the year 1987 and plaintiff have owner of entire said land by way of adverse possession with consequential relief to order and direct the concerned Revenue Officials to carry out necessary correction in all relevant revenue records pertaining to the said land accordingly.

(b) A decree for permanent prohibitory injunction may kindly be passed in favour of plaintiff and against the defendants and all other concerned persons restraining them from interfering with the possession and ownership of plaintiff of the aforesaid land and property fully described prayer clause (a) above and further restraining the defendants from dispossessing plaintiff from the aforesaid suit land in any manner as plaintiff has become owner of the same by way of adverse possession."

In so far as relief (a) is concerned, suffice it to say that the same is not available to the plaintiff- petitioner because a suit for declaration on the basis of adverse possession cannot be maintained as this claim can be agitated only by way of defence and can be used only a "shield" and not "a sword" in terms of the judgement of Hon''ble Supreme Court in Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and Another, (2014) 2 AD 364 : (2013) 4 RCR(Civil) 703 : (2013) 11 SCALE 564 : (2014) 1 SCC 669 , wherein it was held as follows:-

"8. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."

Now coming to the application in hand, it would be seen that as per own showing of the petitioner, he on 15.9.2012 was aware of the documents which were in the file produced by PW 8. The learned counsel for the petitioner during the course of arguments had stated that documents came to be applied for the first time only on 12.7.2013 and were supplied to the petitioner on 24.7.2013. If that be so then, there is no explanation whatsoever offered by the petitioner as to why these documents were only applied after nearly ten months i.e. on 12.7.2013 when he knew about these documents on 15.9.2012.

That apart, the petitioner had already moved an application for leading additional evidence on 26.2.2013 on which date admittedly the petitioner was already aware of the aforesaid documents, which as stated above, had come to his notice on 15.9.2012. Even then at that stage he made no endeavour to have these documents placed on record by way of additional evidence. In this background, no fault can be found with the order of the learned trial court whereby the application preferred by the petitioner has been ordered to be dismissed.

The learned counsel for the petitioner would then argue that since it was the case instituted by the petitioner therefore, even it was getting delayed, it was he who may ultimately suffer and therefore the application could not have been rejected on the ground that the case was old one.

I am afraid, this submission of the petitioner cannot be countenanced as the litigation cannot be prolonged by one party, particularly when his claim is based on a plea of adverse possession, which is otherwise not available to him in view of the judgement in Gurudwara Sahib''s case (supra).

That apart, the courts themselves are also accountable and are required to ensure that there is speedy justice and there is no undue delay in the disposal of the cases. The delay in disposal of old cases apart from causing hardship to the parties, has a human aspect and has the effect of embroiling succeeding generations in litigation started by the ancestors. Even otherwise, every Presiding Officer of the subordinate court is supposed to manage his own court''s affairs. It is expected that he is aware of the principles of court''s management. He is duty bound to take up and decide old cases.

In view of the aforesaid discussion, I find no merit in this petition and the same is dismissed, leaving the parties to bear their own costs.

Since the suit is pending for more than a decade and had been instituted in the year 2004, and part of the relief as claimed by the plaintiff is otherwise not available to him in terms of the judgement of Hon''ble Supreme Court in Gurudwara Sahib''s case (supra), it is expected that the learned trial court will decide the case expeditiously and in no event later than 30th September 2015. The parties through their counsel are directed to appear before the learned trial court on 10.7.2015.