Jhandu (dead) through LRs. vs Moli

B. Rai, J.—The appellants are Legal Representatives of unsuccessful plaintiff. Jhandu filed a suit for possession of 3Marlas of land bearing Khewat/khatauni No. 88/135 Khasra No. 75 measuring 11Marlas situated in the revenue estate of village Haripur Jattan, Tehsil Jagadhri, as mentioned in the Jamabandi for the year 1971-72. Jhandu asserted that he was the owner of the above said Khasra Number as it was allowed to him as bara during the consolidation of holdings. About a year back when the suit was filed", the defendant in the absence of the plaintiff encroached upon 3Marlas on the North-Western corner of Khasra No. 75 and raised a Kacha structure in the shape of kotha in one Maria and on the remaining two Marlas he started tethering his cattle. It was further pleaded by the plaintiff that he got the said Khasra Number demarcated from the revenue officials who found that the defendant was in illegal possession of a part of the said Khasra Number. The plaintiff requested the defendant several times to hand over possession of the suit land but he refused to do so. Hence, the suit.

The suit of the plaintiff was contested by the defendant by controverting all the allegations and pleading that he was in possession and occupation of the land in suit from the time of his fore-fathers as full-fledged owner. His kotha existed therein right from the beginning. He further asserted that a pipal tree was planted by his father about thirty years back. A khurli was also in existence from the time of this fore-fathers. According to the defendant, his possession over the suit land was prior to the consolidation of holdings in the said village which took place in 1954. How ever, he had no knowledge of the demarcation alleged by the plaintiff. He also pleaded that the suit land did not form part of Khasra No. 75. An alternative plea was taken by him that even if the suit land formed a part of Khasra No. 75 he had become owner of the same by adverse possession. The valuation and limitation for filing the suit were also challenged.

The pleadings of the parties gave rise to the following Issues:

(1) Whether the plaintiff is owner of Khasra No. 75 measuring 11 Marlas situated in village Haripur Jattan? OPP

(2) Whether the site in dispute measuring 3 Marlas is part of Khasra No. 75? OPP

(3) If issue No. 2 is proved whether the defendant has become owner of the site in dispute by adverse possession? OPD

(4) Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP

(5) Whether the suit is within time? OPP

(6) Relief.

Both the parties led oral as well as documentary evidence which was appraised by the trial Court. Under Issue No. 1, the trial Court recorded the finding that the plaintiff is owner of Khasra No. 75 measuring 11Marlas situated in village. Haripur Jattan. Under Issue No. 2, it was held that the site in dispute measuring 3Marlas is a part of Khasra No. 75 in village Haripur Jattan. These Issues were accordingly decided in favour of the plaintiff. Under Issue No. 3, the trial Court returned the finding that it is clearly established that the possession of the defendant upon the suit land is prior to 1954 and hence for more than twelve years and was hostile against the plaintiff within the knowledge which he did not object during all this period. Accordingly, this issue was decided in favour of the defendant and against the plaintiff. Under Issue No. 4, it was found that the valuation of the suit land was Rs. 50/- or Rs. 60/-. Under Issue No. 5, it was stated that this Issue had not been pressed for during the arguments. So, it was decided against the defendant. In the result, the suit of the plaintiff was dismissed by the trial Court vide judgment and decree, dated January 27, 1977.

In appeal preferred by the plaintiff, the learned Additional District Judge, Ambala, affirmed the findings on Issues 1 to 4. As regards Issue No. 5, the learned Additional District Judge observed that in view of the finding on Issue No. 3, it (Issue No. 5) could not be sustained being factually and legally wrong. It was further observed that the appellant had not proved that he was dispossessed within the last twelve yeas prior to the institution of the suit and, therefore, the finding on Issue No. 5 was reversed. Consequently, the appeal was dismissed by the learned Additional District Judge, Ambala vide judgment and decree, dated July 17, 1979.

Hence, this second appeal at the instance of the plaintiff being represented by his Legal Representatives.

I have heard the learned counsel for the parties, and carefully gone through the record.

Findings on Issues 1, 2 and 4 have not been assailed before me. Accordingly, they do not survive for consideration by this Court.

The learned counsel for the appellant has addressed his arguments assailing the findings of both the Courts below primarily on Issue No. 3 and then on Issue No. 5. It was assertively argued by the learned counsel for the appellant that both the Courts below have not properly appreciated the evidence led by the parties and have taken erroneous view thereof in arriving at a conclusion that defendant-respondent had been successful in proving that he had become owner of the suit land by adverse possession as the defendant could not prove as to since when his adverse possession started and his possession was continuous, open and hostile. It was strenuously argued that the suit land is three Marlas only. In one Maria, there is a kacha structure in the shape of a kotha and in remaining two Marlas plaintiff claimed to have pegs for tethering the cattle which cannot be treated as open and hostile overt act towards the appellant. He placed reliance on Mt. Bhago v. Deep Chand Harphul and others (1964)66 P.L.R. 141 and Ram Das v. Mangat Rai, (1967)69 P.L.R.D 137. Possibly, there cannot be any quarrel with the legal proposition enunciated in the authorities relied upon by the learned counsel for the appellant.

In the instant case, a careful perusal of the record would show that the defendant has categorically pleaded in Para 2 of the written statement that he is in possession and occupation of the land in question from the time of his fore-fathers as full-fledged owner and kotha is in existence since then, the pipal tree was planted by his father which is about thirty years old and a khurli also exists at the same place from the time of his fore-fathers. It was admitted by him that consolidation of holdings took place in the village in 1954. He further pleaded that possession of the defendant as owner is much prior to the consolidation of holdings and the plaintiff was never absent from the village. In this way, he became owner of the suit land by virtue of adverse possession. From this, it is clearly made out that the defendant very candidly pleaded that his possession was adequate and in continuity. It was publicly in the notice of the plaintiff-appellant showing that his possession over the suit land was adverse to the plaintiff-appellant. In other words, the case set up by the defendant clearly is that his possession was in denial of the true owner''s title, it was peaceful, open and continuous. The defendant was not under any obligation to approach the appellant to bring to his notice that he was in possession of the suit land adversely to his title. Therefore, it is difficult to agree with the submission of the learned counsel for the appellant that essential ingredients constituting adverse possession are not pleaded.

It was pointed out by the learned counsel for the appellants that it is admitted case of the parties that consolidation of holdings took place in the village in the year 1954. It was argued that it is a matter of common knowledge that at the time of consolidation of holdings all the lands are put in a hotch potch and different kurrahs are carved out for allotment to the owners of the land without any encumbrances. In the consolidation of holdings the land of the appellants was also put in a hotch potch and separate kurrah including the land in dispute was allotted; and possession there of was delivered to him. From this, it is clearly made out that when the land was allotted and possession was delivered in consolidation proceedings by the concerned authorities, no portion of it was in possession of any person much less the defendant. Therefore, if the defendant had encroached upon the suit land after the consolidation proceedings, his possession cannot be said to have ripened into adverse possession especially when the defendant-respondent has neither pleaded any specific date of commencement of his possession over the suit land nor any evidence has been led to prove the same. According to the learned counsel, both the Courts below have arrived at an erroneous conclusion that defendant has become owner of the suit land by way of adverse possession. I do not find any force in this contention either. No doubt the defendant has pleaded that he is in possession and occupation of the land in suit from the time of his fore-fathers as full-fledged owner and has not pleaded as to from which date he is in possession of the suit land. If it is assumed for the sake of arguments that defendant-respondent has not been successful in proving that he continues to be in possession from the time of his fore-fathers and he came into possession of the same in the year 1954 or soon after the consolidation proceedings were over, even then he is in possession of the suit land for more than twelve years wherein his kacha kotha, pegs for tethering cattle and khurli are in existence. The instant suit was filed on March 21, 1975. In Para 3 of the plaint, it was pleaded by the plaintiff that he had requested the defendant several times to hand over the possession of the land in dispute by demolishing his kacha structure and by removal of his khurli and other wooden pegs, but the defendant refused to do so. That goes to show that on the date of institution of the suit, defendant was in possession of the suit land. During the course of arguments, it was not shown from the evidence that plaintiff was in possession of the suit land within twelve years preceding the date of institution of the suit, i.e., March 21, 1975. The conclusion that obviously follows is that defendant is in possession which is open, continuous and to the knowledge of the appellant from 1954, i.e., for more than twelve years. Both the Courts below after properly appreciating the evidence have come to the conclusion that defendant has been successful in proving the adverse possession, and rightly so.

No other point was raised or canvassed nor requires going into.

For the reasons recorded above, the findings of the Courts are affirmed and the appeal being without merit, is dismissed. No costs.