Gautam Lal vs Asal Mani

Tarlok Singh Chauhan, J.—The appellants are the defendants, who are aggrieved by the judgment and decree dated 13.5.2002 passed by learned Additional District Judge, Shimla, Circuit Court at Rohru, in Civil Appeal No. 42-S/13 of 2001 whereby he reversed the judgment and decree dated 5.1.2001 passed by learned Sub Judge 1st Class, Court No. 1, Rohru, District Shimla, H.P. in C. Suit No. 104-1 of 1999/24-1 of 1999.

The facts, in brief, are that the predecessor-in-interest of the respondent/plaintiff Sh. Ram Lal filed a suit for permanent prohibitory injunction restraining the defendant, his family members, labourers and agents from interfering in peaceful possession of the plaintiff over the land comprised in Khata Khatauni No. 25/90 min, Khasra No. 275/246 min, old and Khasra No. 650, new known as "Buri'' situate in Chak Hingori, Tehsil Chirgaon, District Shimla, H.P. It is averred in the plaint that plaintiff is exclusive owner in possession of the suit land mentioned above and the defendant has no legal right, title or interest in the suit land. In fact, the land of the defendant is adjoining to the suit land and the defendant is encroaching upon the suit land and has also threatened to construct a house over the same resulting in filing of the present suit. The cause of action arose in the first week of March, 1999 when the defendant and his family members threatened to construct a house.

The defendant contested the suit by filing written statement in which preliminary objections of maintainability, jurisdiction and defendant being in adverse possession of the suit land were raised. On merits, it was averred by the defendant that entry in the name of late Sh. Ram Lal as owner in respect of the suit land is the result of fraud committed in collusion with the settlement officials. Otherwise, it is the defendant, who is owner of the suit land. During the course of settlement, the map has been wrongly prepared and land of the defendant has been shown to be the land of the plaintiff. The defendant has denied the other paras of the plaint and has admitted that defendant is owner of the adjoining land. Originally, the land of the defendant was comprised in Khasra No. 246, which was subsequently bifurcated in Khasra Nos. 275/246 and 285/246. During the course of the settlement, map has been wrongly prepared resulting in dispute. The defendant also averred that he has become owner by way of adverse possession, as the defendant has planted apple plants over the suit land. Since the defendant is in possession of the suit land, therefore, there is no question of making any interference as alleged by the plaintiff.

The plaintiff filed the replication to the written statement filed by the defendant and reiterated all the allegations made in the plaint and denied those of the written statement.

The learned trial Court framed the following issues:

Whether the plaintiff is owner in possession of the suit land? OPP

Whether the plaintiff is entitled to relief of injunction? OPP

Whether suit is not maintainable in present form? OPD

Whether the defendant has acquired title to suit land by adverse possession? OPD

Relief.

After recording the evidence and evaluating the same, the learned trial Court dismissed the suit of the plaintiff. Aggrieved by the judgment and decree dated 5.1.2001, the legal heir of the original plaintiff filed an appeal before the learned lower Appellate Court. The learned lower Appellate Court vide judgment and decree dated 13.5.2002 set-aside the judgment and decree passed by the learned trial Court.

Aggrieved by the judgment and decree passed by the learned lower appellate Court, the appellants/defendants have come up before this Court in second appeal.

This Court on 9.9.2002 admitted the appeal on the following substantial questions of law:

Whether the learned first appellate court has erred in law by not following the procedure as laid down in the High Court Rules and Orders i.e. Ch. I-M(i)?

Whether the decree as passed by the learned first appellate Court is vague in the absence of a complete description of the suit property?

Whether there is misreading, misinterpretation and mis-appreciation of the evidence and pleadings on record?

I have heard learned counsel for the parties and have also gone through the records carefully and meticulously.

Since all the substantial questions of law are inter-connected and inter-related, therefore, all of them are being taken up together for consideration.

At the outset it may be pointed out that the defendant had set up a plea of adverse possession which plea was negated by the learned trial Court. As against this findings, no appeal whatsoever was preferred by the defendant. It is in this background that the questions as formulated are required to be determined.

Once the plea of adverse possession as raised by the defendant fails, the possession, if any, of the defendant would be that of a trespasser and as against the true owner, the defendant cannot raise any other valid defence so as to oppose his claim for grant of permanent prohibitory injunction. The question of applicability of the High Court Rules and Orders relating to demarcation as contended by learned counsel for the appellants would only come into play in case the defendant had been able to prove that he is owner in possession of the adjoining land or was the owner in his own right or the owner of the land by way of adverse possession. The defendant having failed on both these grounds cannot be permitted to claim that despite these findings, the demarcation in accordance with the High Court Rules and Orders ought to have been conducted. The question of demarcation in the given facts and circumstances does not at all arise for consideration.

In so far as the decree passed by the learned first Appellate Court being vague in absence of complete description of the suit property as is being contended by the learned counsel for the appellants is concerned, suffice it to say that once the plaintiff/respondent is found to be owner in possession of the suit land and the defendant having failed to prove his plea of adverse possession, the only decree required to be passed by the learned lower Appellate Court was to the effect that the defendants/appellants be restrained from raising any construction or from interfering in the peaceful possession of the plaintiff/respondent over the suit land. This is not only what has been sought for by the plaintiff, but the learned lower Appellate Court has in fact passed a decree to this effect and no exception can be taken to the same.

In so far as the contentions of the appellants regarding misreading, misinterpretation and mis-appreciation of the evidence and pleadings on record are concerned, I find no substance in the same as the learned lower Appellate Court has neither misread nor misinterpreted or mis-appreciated the evidence or the pleadings on record. It may be re-emphasized here that all these points would have been available to the appellant only in case he assailed the findings of the learned trial court negating his plea of adverse possession. Once the said plea goes, then there is no substance in the defence of the appellant as against the true owner i.e. the respondent and therefore, on this count also, no exception can be taken to the findings recorded by the learned lower Appellate Court.

All the substantial questions of law are answered accordingly.

Consequently, I find no merit in the appeal and the same is dismissed, leaving the parties to bear their own costs.