Jeet Ram vs Pritam Singh and anothers

Chander Bhusan Barowalia, J.

1.The present regular second appeal is main-tained by the appellant, who was the plaintiff before the learned trial Court (hereinafter to be called as

“the plain-tiffâ€), laying challenge to the judgment and decree, dated 31.03.2005, passed by learned District Judge, Sirmaur District at Nahan, H.P.,

in Civil Appeal No. 30-CA/13 of 2003, whereby the judgment and decree, dated 24.03.2003, passed by learned Sub Judge, Court No. 1, Paonta Sahib,

District Sirmaur, H.P, in Civil Suit No. 131/1 of 2001, was affirmed, wherein suit of the plaintiff was dismissed.

Briefly, the facts, which are necessary for de-termination and adjudication of the present appeal, are that the plaintiff claimed himself to be co -

owner in pos-session of the land, comprised in Khata/Khatauni No. 580/983, Khasra No. 109, measuring 12 Biswas, situated in Mauza Khagani, Tehsil

Paonta Sahib, District Sirmaur (hereinafter to be called as the “suit landâ€). As per the plaintiff, the respondents/defendants (hereinafter to be

called as “the defendantsâ€) have no right, title or interest in the suit land. Further the defendants are trying to raise forcible construction by digging

the foundation in the suit land, which leads the plaintiff to file a suit for permanent injunction, by restraining the defendants from raising forcible

construction on the suit land.

The suit of the plaintiff was contested by the defendants by filling written statement, wherein it has been averred that neither the plaintiff, nor his

predeces-sors-in-interest were ever remained in possession of the suit land as tenant. The suit land is a Gair Mumkin Abadi and since 35 years, there

have been residential houses of the defendants and they have become owners by way of adverse possession. Lastly, they averred that proprietary

rights upon the plaintiff and others, under the H.P. Ten-ancy and Land Reforms Act, are illegal, collusive and fraudulent and prayed for dismissal of

the suit.

By filing replication, the contents of the plaint were reiterated. The learned trial Court on 16.04.2002 framed the following issues for determination

and adjudi-cation:

“1. Whether the plaintiff is entitled for injunction as prayed? OPP

Whether the suit is not maintain-able as alleged? OPD

Whether the defendants have be-come the owners by way of adverse possession as alleged? OPD

Whether the revenue entries in favour of plaintiff is collusive and fraudulent, null and void and not binding on the rights of defendants as alleged?

OPD

Whether the plaintiff has no cause of action as alleged? OPD

Relief.â€​

After deciding issues No. 1, 3 and 4 in nega-tive and issues No. 2 and 5 in affirmative, the suit of the plaintiff was dismissed. Subsequently, the

plaintiff main-tained an appeal before the learned first Appellate Court, which was also dismissed and the findings recorded by the learned trial Court

were upheld. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law:

“1. Whether the learned first Appellate Court erred in reversing the findings of the learned trial Court in respect of the adverse possession without

there being any cross- objection by the defendants against the decision of the learned trial Court?

Whether the learned first Appellate Court misconstrued, misinterpreted the material evidence placed on record and ignored the admissible evidence

in accepting the plea of ad-verse possession of the defen-dants?â€​

Leaned counsel for the appellant has argued that both the learned Courts below have not considered the evidence led by the plaintiff and so the

appeal is re-quired to be allowed. He has further argued that the learned first Appellate Court, without there being any ap-peal on behalf of the

defendants regarding the findings against them, had set aside the findings, which has at-tained finality qua adverse possession. On the other hand,

learned Senior Counsel appearing on behalf of the respondents has argued that after the amendment in Code of Civil Procedure, the findings which

are against the party in whose favour the decree is, the party even without filing the cross-objection argue on the findings against him/her and so the

cross - objections were not re-quired to be filed and there is nothing wrong in the find-ings of the learned Court below. In rebuttal, learned coun-sel for

the appellant has argued that the learned Court below has committed an error and the question of law, as framed, is required to be answered holding

that the find-ings qua adverse possession cannot be set aside by the learned first Appellate Court.

In order to appreciate the rival contentions of the parties, I have gone through the record carefully.

The plaintiff appeared in the witness box as PW-1 and his statement reveals that the disputed land is 12 Biswas and the defendants trying to raise

the plinth over the same. On 14.12.2001, the defendants started digging the suit land forcibly, whereafter the Panchayat members were called and

work was stopped. In his cross-examination he denied that in the year 1950, the defendant’s predecessor-in-interest, taken the possession of the

suit land and they have raised their construction and their possession is open as owner. He further denied that about 35 years back, predecessor-in-

interest of the defendant has constructed the houses and they have not raised any objections, however he has voluntarily submit-ted that their houses

are at their own land.

PW-2 Kishan Chand, has deposed that he knows the parties and the disputed land is 12 Biswas, be-longs to Rulda, Sukar and Bishna and now their

heirs are in possession of the same. In his cross-examination, he admitted that neither the children of Sukar are residing in the disputed land, nor the

sons of Ami Chand. He has fur-ther admitted that the house of the defendants consisting of three rooms and one varanda. He denied that the house is

35 years old, but stated that it is about 5-6 years old. He further denied that adjacent to that house, there is another house, which is of four room. He

has admitted that in the four rooms’ house, Rattan Pal is residing and that house is 20 years old. He further admitted that fa-ther of the defendants

is residing on the suit land since 1950, but stated that the disputed land is another one. He has stated that the disputed land is 4 Biswas, which the

defendants are trying to dig.

The defendant Pritam Singh appeared in the witness box as DW-1 and stated that their predecessors are residing in the suit land from 35-36 years

and the plaintiff neither came there nor residing there. He further stated that the plaintiff is residing in different places and mutation has wrongly been

attested in his favour and he never cultivated the disputed land. In his cross-examina-tion, he denied that they were aware about the entries in favour

of the plaintiff. He admitted that the inheritance of Sukar was attested in favour of the plaintiffs, but volun-tarily submitted that their houses are there.

DW-2, Jashmer Singh, has deposed that nei-ther the plaintiff nor his father residing in the disputed land. In his cross-examination, he admitted that

mutation of Sukar was attested in favour of his heirs in his pres- ence. He further admitted that the disputed land is 12 Biswas and the same is not in

possession of the plaintiff.

DW-3, Dyal Singh, has deposed that the dis-puted land is 12 Biswas, which belongs to the defendants and they are residing there. In his cross -

examination, he denied that on 12.12.2001 and 14.12.2001, the defen-dants tried to dig the foundations and the land does not belong to them.

From the evidence, it is clear that the land was not under cultivation and there were houses. Though the defendants have not preferred any cross-

objections against the findings with regard to adverse possession against them, however the law to this aspect is very clear.

The Hon’ble High Court of Himachal Pradesh in Ram Rakhi vs Attri and another, AIR 1993 HP 137, has held as under:-

“6. About second point Mr. Barowalia, learned counsel for the respondents/plain-tiffs has raised preliminary objection that it cannot be considered

by this Court in the present appeal as the appellant/defendant had not filed cross-objections challenging the findings of the trial Court, which have now

become final between the parties. The District Judge had also not considered this point for this reason. For making his sub- mission Mr. Barowalia has

relied upon Kris-han Dev vs. Smt. Ram Piari, AIR 1964 Him Pra 34. But in view of the amended provi-sions of Order 41, Rule 22, read with Rule 33,

C.P.C. this preliminary objection is with-out any force.â€​

The Division Bench of Hon’ble Supreme Court in Banarsi and Others vs. Ram Phal , (2003) 9 SCC 606, have held as under:-

“10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even un-der the amended

Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection.

How-ever, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has

resulted we well shortly state. A respondent may defend himself without fil-ing any cross-objection to the extent to which decree is in his favour;

however, if he proposes to attack any part of the decree he must take cross-objection. The amend-ment inserted by the 1976 amendment is

clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:

(I) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.

(ii) The decree is entirely in favour of the respondent though an issue has been de-cided against the respondent.

(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in

the judgment which goes against the respondent.

In the type of case (I) it was neces-sary for the respondent to file an appeal or take cross-objection against that part of the decree which is against

him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objec-tion.

The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any

cross-objection as he was not the person aggrieved by the decree. Under the amendment CPC, read in the light of the explanation, though it is still not

necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he

may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly in-serted, gives him

a right to take cross- ob-jection to a finding recorded against him ei-ther while answering an issue or while deal-ing with an issue. The advantage of

prefer-ring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for de-fault the cross-

objection taken to any find-ing by the respondent shall still be avail-able to be adjudicated upon on merits which remedy was not available to the re-

spondent under the unamended CPC. In the pre-amendment era, the withdrawal or dis-missal for default of the original appeal dis-abled the

respondent to question the cor-rectness or otherwise of any finding recorded against the respondent.â€​

From the above it is clear that even without there being cross-objections, the party against whom the findings are, can assail the findings against

him/her after the amendment in the Code of Civil Procedure, but the only difference is that while maintaining cross-objections, even if the other party

withdraws the appeal, cross-objec- tions are required to be disposed of on merits, but In the case no cross-objections were filed, so the findings against

the party, who has neither filed the appeal nor cross-objections when the other party withdraws the ap-peal, cannot be gone into. In the present case,

the appeal was not withdrawn, so substantial question of law No. 1 is answered holding that the learned first Appellate Court has not erred in

reversing the findings of the adverse pos-session, without there being any cross-objections on be-half of the defendants.

The testimonies of defendant’s witnesses shows that the defendants are in continues possession of the suit land, upon which their

predecessors-in-interest have raised their pucca house, consisting of three rooms and a verandah. All these witnesses denied in their cross-

examination that the defendants tried to dig the founda-tions in the suit land. The fact that the defendants are in adverse possession of the suit land is

quite obvious on the plaintiff’s own showing, as he has himself admitted that he has been residing in Amargarh, which is at a dis-tance of 25 Kms

from the suit land. PW-2, Kishan Chand in his cross-examination has also admitted that children of Sukar, including the plaintiff are not residing in the

suit land and he only saw the defendant’s house on the suit land. Though, this witness has denied that the said house is constructed 35 years back,

but stated that it is 5-6 years old and admitted that he had also seen the house of defendant Rattan Pal, which consists of 3-4 room and the same is

existed there for the last 20 years. From this admission, coupled with the evidence of the defendants, it is clear that the defendants have been living on

the suit land since 1950 and they have raised pucca houses on the same, which have been constructed beyond 12 years, before the filing of the suit, as

such they have already ac-quired title by way of adverse possession by the time suit was filed. Therefore, the findings recorded by the learned Court

below are as per law and the substantial question of law No. 2 is answered holding that the learned first Ap-pellate Court has not misconstrued,

misinterpreted and misapplied the material on record and ignored admissible evidence in accepting the plea of adverse possession of the defendants

and refusing alternative relief of posses-sion to the plaintiff on title.

The net result of the above discussion is that the present appeal, sans merits, deserves dismissal and is accordingly dismissed. Pending

application(s), if any, shall also stand(s) disposed of. However in the peculiar facts and circumstances of the case, parties are left to bear their own

costs.