Krishan Chand vs Kanshi Ram

Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree dated 20.4.2012 rendered by the Additional District Judge, Shimla, camp at Rohru, in Civil Appeal No. 32-R/13 of 2008. "Key facts" necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) filed a suit for vacant possession against the appellant/defendants (hereinafter referred to as the "defendants" for convenience sake). According to the plaintiff, he was co-owner in possession of the land comprised in Khata No. 142 min, Khatauni No. 329 min, Khasras No. 1270, 1272 and 1312, and Khata No. 143 min Khatauni No. 334/1min, Khasra No. 1314, situated in revenue Chak Telga, Tehsil Chirgaon, District Shimla, H.P. According to the plaintiff, the defendants encroached upon the suit land in the year 1995. They were requested to hand over the possession of the suit land at that time also, but they told that since crop had been sown, they would hand over the possession after harvesting the crop. The defendants also raised ''dhara'' over the suit land. It is in these circumstances, the plaintiff filed the suit.

The suit was contested by the appellant/defendant No. 1, namely, Krishan Chand. According to him, the plaintiff was under heavy debt and as such, he orally sold the suit land to him in March 1990 for a consideration of Rs. 23,000/-. He and his son Bahadur Singh are residing together as a joint Hindu family and the affairs of the house are being looked after and maintained by Bahadur Singh. Bahadur Singh executed a document on 25.2.2002, Ext. DA. According to defendant No. 1, he was in possession of the suit land since 1990 on the basis of the agreement dated 25.2.2002. In the alternative, he has also averred that he is in peaceful and continuous possession of the suit land and has become owner of the same by way of adverse possession.

The defendant No. 2, namely, Bari Nand, did not contest the suit. Hence, he was proceeded ex-parte on 23.2.2006.

Learned trial court framed issues on 29.3.2006 and decreed the suit of the plaintiff on 6.9.2008. Defendant No. 1/appellant preferred an appeal before the learned Additional District Judge, Shimla, who dismissed the same on 20.4.2012. Hence, the present Regular Second Appeal.

Mr. Deepak Bhasin, Advocate, on the basis of substantial questions of law, has vehemently argued that defendant No. 1/appellant has duly proved the execution of Ext. DA dated 25.2.2002. He then contended that his client has also proved his ownership over the suit land by way of adverse possession.

Mr. B.C. Verma, Advocate, has supported the judgments and decrees passed by learned courts below.

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

The plaintiff has appeared as PW1. According to him, he is owner of the suit land along with his sister. The defendants had taken over the possession of the suit land behind his back and assured that they would hand over the possession after harvesting the crop. He had taken PW2, Munshi Ram with him when the defendants told that they would give the land in exchange or uproot the apple trees. However, the defendants did not vacate the suit land.

PW2, Munshi Ram, has supported the version of PW1.

PW4, Bahadur Singh, is son of PW1. According to him, the owner of the suit land is the plaintiff. However, the possession was with the defendants. The defendants have also constructed ''dhara'' there. He has admitted his signatures on Ext. DA. He has admitted the execution of the document dated 25.2.2002.

DW1, Krishan Chand, has deposed that the household affairs of the plaintiff were being looked after by his son, Bahadur Singh. He has taken the possession of the suit land in the year 1990. Till 1990, the land was in possession of the plaintiff. The land was sold by the plaintiff for a sum of Rs. 23,000/-. He has also admitted his words that he would leave the possession.

DW2, Balbir Singh, has supported the statement of DW1. According to him, the suit land was not purchased from Kanshi Ram in his presence.

DW3, Sher Singh, has deposed that on the basis of the possession, he treated the defendant as owner of the suit land. However, he volunteered that the owner of the suit land is plaintiff. He has also deposed in cross-examination that defendant Krishan Chand has taken over the possession in the year 1995.

DW4, Smt. Satya Devi, has led her evidence by way of an affidavit. According to her, she signed on Ext. DA.

The plaintiff has also placed on record copy of jamabandi for the year 2002-03, Ext. PW1/A. In the revenue record, the plaintiff is owner of the suit land. The nature of the suit land has been shown as ''bakhal doem'' as well as ''banjar kadeem''. The existence of apple orchard does not find mention in Ext. PW1/A. So far as document Ext. DA is concerned, the same has been signed by PW4, Bahadur Singh. Bahadur Singh is not the owner of the suit land. The owner of the suit land is plaintiff. According to the defendants, the suit land was sold by the plaintiff in the year 1990. However, the sale deed is dated 25.2.2002 and there is no reference under Ext. DA to support that the suit land was sold to the defendant in 1990. PW4 has no authority to sell the land, not owned by him. The defendants have also failed to prove ingredients of adverse possession. It is has come on record that the plaintiff has always objected to the possession of the defendants. Even DW3 Sher Singh has also admitted that the possession of the suit land was taken by Krishan Chand in the year 1995. It was necessary to plead and prove the plea of adverse possession. The first plea of the defendant was that he has purchased the land in the year 1990. It was in the alternative prayer that he has become owner by way of adverse possession. Accordingly, the learned courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the judgments passed by them. In view of the observations and analysis made hereinabove, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.