Lal Singh (dead), through LR Shri Balbir Singh vs Parveen Kumar

Sanjay Karol, Judge

This is defendants'' Regular Second Appeal filed u/s 100 of the Code of Civil Procedure, 1908. Plaintiff''s Civil Suit No. 144 of 1997/95, instituted on 23.3.1995/26.4.1997, titled as Praveen Kumar versus Lal Singh, stands decreed by Sub Judge 1st Class, Chamba, District Chamba, Himachal Pradesh, in terms of judgment and decree dated 8.6.2001. Findings of fact, judgment and decree stand affirmed by the District Judge, Chamba, Himachal Pradesh, in Civil Appeal No. 40 of 2001, titled as Lal Singh versus Praveen Kumar, filed by defendant. Thus, present appeal arises out of concurrent findings of fact. Plaintiff Shri Praveen Kumar filed a suit for possession by way of partition against defendant Shri Lal Singh.

Defendant Shri Lal Singh resisted the suit on the ground that he was a tenant under the previous owner to whom he paid rent from 1974 till December, 1980. Significantly, defendant also, in the alternative, took the plea of adverse possession.

On the basis of pleadings of the parties, trial Court framed the following issues:

Whether the parties are joint owners in possession of the suit property as alleged? ...OPP

Whether the plaintiff is entitled to a preliminary decree for partition as claimed? ...OPP

Whether the defendant has become the owner of the suit property by way of adverse possession as alleged?...OPD

Whether the suit is not maintainable in the present form? ...OPD

Whether the suit is time barred? ...OPD

Whether the plaintiff has a cause of action? ...OPD

Whether this Court has got no jurisdiction to entertain and dispose of the present suit? ...OPD

Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? ...OPD

Whether the suit is bad for non-joinder and mis joinder of the necessary parties?...OPD

Relief.

Noticeably, no issue with regard to tenancy was framed by the trial Court.

Plea of adverse possession over the plaintiff''s land, as taken by the defendant, was rejected and plaintiff, who was found to be co-owner of the suit land, was held entitled to a decree for separate possession of one half share of his land. Plaintiff''s suit was decreed, in terms of judgment and decree dated 8th June, 2001, passed by Sub Judge 1st Class, Chamba, District Chamba, Himachal Pradesh. Findings of fact, judgment and decree stand affirmed by the District Judge, Chamba, in terms of judgment and decree dated 24th April, 2002.

Having heard learned counsel for the parties and perused the record, I am of the considered view that substantial questions of law on which the instant appeal was admitted, in fact do not arise for consideration at all.

Defendant took mutually destructive and contradictory pleas. He could not have been a tenant and acquired ownership by way of adverse possession of the suit land, at the same point in time. Plea of adverse possession, based on evidence led by the parties and more particularly that of the defendant, has been concurrently, and in my view rightly rejected, by the Courts below. No doubt, Shri Nathu Ram (DW-3) has deposed that wall was got constructed by defendant Shri Lal Singh (DW-1), but however even this does not establish the plea of adverse possession.

Law with regard to adverse possession is now well settled. Defendant has failed to establish by leading clear, cogent and convincing piece of evidence that he had exerted his possession and title, hostile to that of true owner and continued to occupy the premises in spite of personal knowledge thereof of the plaintiff. Also, there are no pleadings to this effect. Consequently, it cannot be said that defendant has been able to establish his ownership over the suit land by way of adverse possession.

Second question of law, already stands settled by the Apex Court in Ms. Labanya Neogi Through Lrs. Power of Attorney Holder Shri Dr. Subhasis Neogi Vs. M/s W.B. Engineering Company, Hence, it no longer remains a substantial question of law. In any event it does not require consideration in the instant appeal. Coming to the third substantial question of law, I find that Courts below rightly rejected the defendant''s application for leading additional evidence. Record reveals that trial Court considered defendant''s application and rejected the same, in terms of order dated 5th December, 2000. Learned Judge took into account various factors, including the conduct of defendant, which was to procrastinate the trial. Sufficient opportunities were afforded to the defendant to lead evidence and in spite thereof, no steps were taken for leading effective evidence. It is not as though opportunity was not afforded to the defendant to examine/cross- examine the witnesses during trial. There was no need to recall the witness for re-examination. As such, it cannot be held that the Courts below erred in rejecting the application. Substantial questions of law are answered accordingly. Instant appeal, which is devoid of merit, is dismissed. Pending application(s), if any, also stand disposed of.