Narain Dass vs Vidya Devi

Piar Singh Rana, J.—Present appeal filed against the judgment and decree passed by learned District Judge Mandi in Civil Appeal No. 116 of 1999 titled Narin Dass and others Vs. Smt. Vidya Devi. During the pendency of this Regular Second Appeal plaintiff Smt. Vidya Devi died and her legal heirs were brought on record.

Brief facts of the case as pleaded are that deceased Vidya Devi plaintiff through her general attorney filed a suit for injunction against the appellants-defendants. It is pleaded that deceased plaintiff is the owner in possession of the suit land comprised in khasra Nos. 245 and 248 kita 2 measuring 1091.4 Sq yards situated in Mohal Joginder Nagar Tehsil Joginder Nagar District Mandi HP. It is pleaded that defendants have no right, title or interest over the suit land. It is further pleaded that defendants are interfering in the suit land. It is further pleaded that defendants have collected building materials over the suit land with a view to raise wall or cowshed over the suit land since 17.4.1996. It is further pleaded that the defendants have no right to raise construction or interfere with the possession of plaintiff over the suit land. It is pleaded that deceased plaintiff requested the defendants several times to desist from illegal activities over the suit land but defendants refused to adhere to the lawful request of the plaintiff. Prayer for grant of decree as mentioned in relief clause of the plaint sought.

Per contra written statement filed on behalf of the defendants pleaded therein that the suit being simplicitor for injunction is not maintainable. It is further pleaded that deceased plaintiff was not in possession of the suit land before the date of institution of the suit. It is further pleaded that deceased plaintiff has got no legal cause of action. It is pleaded that though suit land is recorded in the ownership of deceased plaintiff in the revenue record but factually deceased plaintiff was not in possession of the suit land. It is further pleaded that defendants have become owners of the suit land by way of right of adverse possession. It is further pleaded that defendant No. 1 is in possession of suit land since 1965. It is pleaded that the possession of the defendants over the suit land is peaceful continuous and hostile against the deceased plaintiff. It is further pleaded that defendants have already constructed a cow shed over the suit land in the year 1970. It is pleaded that whole of the suit land is in possession of defendant No. 1. Plaintiff also filed replication in which she re-asserted the averments as contained in the plaint. Learned trial Court as per pleadings of the parties framed the following issues:

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

Whether the defendants without any right, title or interest are interfering over the suit land as alleged?...OPP.

Whether the simplicitor suit for injunction is not maintainable in the eyes of law as alleged?. ...OPD.

Whether the plaintiff has got no legally enforceable cause of action as alleged?....OPD

If issue No. 1 is not proved whether the defendants has perfected his title to the suit land by way of adverse possession since 1965 as alleged?....OPD.

Findings of the learned trial Court on issues No. 1 and 2 are in affirmative and in favour of the plaintiff and findings of the learned trial Court upon issues No. 3,4 and 5 are in negative against the defendants. Learned trial Court decreed the suit filed by the plaintiff and restrained the defendants permanently from interfering in the suit land by way of raising construction in any manner whatsoever.

Feeling aggrieved against judgment and decree passed by learned trial Court Narain Dass and others filed Civil Appeal No. 116 of 1999 u/s 21 read with Section 96 of the CPC before learned District Judge Mandi H.P. Learned District Judge Mandi on dated 17.08.2001 dismissed appeal.

Feeling aggrieved against the judgment and decree passed by the learned first appellate Court appellants filed RSA No. 495 of 2001 in the Hon''ble High Court of H.P. on dated 27th September 2001. On the pleadings of the parties the following substantial questions of law were framed on dated 17.10.2001:

Whether the findings arrived at by the learned First Appellate Court are legally sustainable in view of the law laid down by this Hon''ble Court in Harswarup Vs. Ram Lok Sharma, , whereby appearance of a GPA cannot be regarded as appearance of the party and an adverse inference will have to be drawn against him?.

Whether the refusal of the learned trial court in appointing a Local Commissioner deprived the applicant of a vital document for deciding a point in issue and its effect thereto?.

I have heard learned Advocate appearing on behalf of the parties at length and also perused the entire record carefully.

7.1 Parties produced following witnesses in support of their case.

7.2. Parties also produced the following pieces of documentary evidence in support of their case.

Oral evidence adduced by the parties.

PW1 Bhalchander Bhardwaj has stated that he is attorney of plaintiff and copy of power of attorney is Ext P2. He has stated that suit land is ''Khadetar'' (Grassy land). He has stated that grass of the suit land was cut by the plaintiff. He has stated that he used to manage the suit land. He has stated that deceased plaintiff constructed a cow shed over the suit land. He has stated that defendants are not in possession of the suit land. He has stated that in the year 1996 defendants tried to construct a cow shed over the suit land. He has denied suggestion that father of the defendants used to work as Chowkidar. He denied suggestion that defendants had constructed two rooms of cow shed over the suit land. He has also denied suggestion that deceased plaintiff was not in possession over the suit land since 1965.

8.1 DW1 Narain Dass has stated that the suit land is in his possession. He has stated that prior to him his father was in possession of the suit land since 1965 in a peaceful manner. He has stated that initially the suit land was ''Khadetar'' (Grassy land). He has stated that he had constructed two rooms of cow shed and also planted fruit trees over the suit land. He has stated that possession of the defendants were also in the knowledge of deceased plaintiff. He has stated that he has acquired the title of the suit land. He denied suggestion that the defendants are not in possession of the suit land. He also denied suggestion that deceased plaintiff was in possession of the suit land.

8.2. DW2 Maan Singh has stated that the parties are known to him. He has stated that he has seen the suit land. He has stated that deceased plaintiff is the wife of Surat Singh. He has stated that the father of the defendants was in possession of the suit land since 1965. In cross examination he denied suggestion that the nature of the suit land is ''Khadetar'' (Grassy land). He also denied suggestion that defendants are not in possession of the suit land.

8.3. DW3 Naradhu Ram has stated that the parties are known to him. He has stated that he has seen the suit land. He has stated that the suit land was in possession of the father of defendants since 1965. He has stated that defendants have constructed cow shed and also planted tress over the suit land. He has stated that cow shed was constructed by the father of defendants in the year 1970. He has denied suggestion that defendants are not in possession of the suit land. He has stated that possession was given to the defendants by Surat Singh.

8.4. DW4 Hukam Chand has stated that the parties are known to him. He has stated that deceased plaintiff is the widow of Surat Singh. He has further stated that he remained Manager of the property of Surat Singh. He has stated that defendants are in possession of the suit land. He has stated that possession of the suit land was given in the year 1965 to the father of defendants. He has stated that he had handed over the possession to the father of defendants as per direction of Surat Singh. He has stated that father of defendants used to work for Surat Singh. He has stated that he left the work of Surat Singh in the year 1995. He denied suggestion that the father of defendants did not remain in possession of the suit land.

Submission of learned Advocate appearing on behalf of the appellants that forefather of appellants was in possession of the suit land since 1965 and long possession ripened into right of adverse possession over suit land and on this ground appeal be accepted is rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that prolonged possession by itself does not prove the factum of ownership by adverse possession. See: Devi Chand Vs. Raj Dulari, . It is well settled law that a person claiming adverse possession over immovable property should prove that possession was peaceful, open continuous and hostile to the knowledge of the true owner. See: Rama Kanta Jain Vs. M.S. Jain and others, . Also See: 1996 (2) Civil Court Cases 118 HP titled Jangbahadru Vs. Smt. Juthi Devi and others. It is well settled law that adverse possession is based upon unlawful possession which has become lawful with the passage of time subject to certain conditions. Hence it is held that appellants did not prove all ingredients of adverse possession over the suit property in accordance with law. Even as per jamabandi entries Ext. P-1 placed on record for the year 1993-94 in the ownership column and in possession column of suit land names of appellants did not figure. It is well settled law when there is conflict between oral evidence and documentary evidence then documentary evidence always prevails unless documentary evidence is not rebutted by examination of public official who prepared public document in discharge of official duty. It was held in case reported in 1999 (1) SLJ page 16 titled Ram Krishan vs. Geeta Devi and others that oral evidence is not sufficient to rebut the entries incorporated in revenue record in discharge of official duty unless the revenue official who had incorporated the entries in public record is not examined in Court. None of the witness examined by appellants have stated in their testimony that possession of appellants became hostile to the legal rights of deceased plaintiff or her L.Rs. Hence it is held that ingredients of hostile possession not proved on record by way of oral testimony of witness examined by appellants.

Finding upon substantial question of law No. 1.

The submission of the learned Advocate appearing on behalf of the appellants that deceased plaintiff did not appear in the witness box and her attorney appeared in the witness box and in view of the ruling of the Hon''ble Apex Court reported in Harswarup Vs. Ram Lok Sharma, the present appeal be accepted is also rejected for the reason hereinafter mentioned. The facts of the above said ruling and the facts of the present case are entirely different. In the present case the appellants/defendants took the plea of right of adverse possession. It is well settled law that whenever the plea of right of adverse possession is taken by the adverse party then onus is upon the adverse party to prove the right of adverse possession.

It is well settled law that when right of adverse possession is not proved by the adverse party then decree on the basis of title should be passed in favour of true owner. See: Tilak Raj Vs. Bhagat Ram and Another, , See: SLJ 2009 (1) HP 188 titled Amar Singh vs. Jai Singh. The deceased plaintiff filed the present suit on the basis of the title. The name of deceased plaintiff recorded in the ownership column of suit property in the records-of-right prepared by the revenue officials under HP Land Revenue Act in discharge of official duty. Jamabandi Ext P1 for the year 1993-94 remains un-rebutted on record. Even the nature of the suit land has been shown as ''Khadetar'' i.e. grassy land and the entry in the jamabandi Ext P1 placed on record is a relevant fact u/s 35 of the Indian Evidence Act. Appellants-defendants did not examine any revenue official in order to rebut the entry of revenue record. Even deceased plaintiff was widow and was rustic villager. Appellants did not file any application before learned trial Court to examine female plaintiff through Local Commissioner. Age of Smt. Vidya Devi was 74 years. Hence it is held that it is not expedient in the ends of justice to draw adverse inference against female aged more than 74 years for personally non-appearance in Court. Hence substantial question of law No. 1 is answered against the appellants.

Finding upon substantial question of law No. 2.

Submission of learned Advocate appearing on behalf of the appellants that learned trial Court committed grave illegality by way of not appointing Local Commissioner in the present case is also rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that the onus to prove the case is upon the party who asserts particular facts as per Section 101 of the Indian Evidence Act. It is also well settled law that Court is not under legal obligation to create evidence in favour of any party. No reason has been assigned by the appellants as to why the appellants did not obtain any demarcation report from the competent authority of law as per HP Land Revenue Act. It is well settled law that concurrent findings of facts based upon material available on record should not be interfered. Hence substantial question of law No. 2 is answered against the appellants. It is held that learned trial Court and learned first appellate Court have not wrongly misinterpreted and have not mis-appreciated the evidence and law in the present case. It is held that as per jamabandi Ext. P-1 placed on record for the year 1993-94 at the time of institution of suit Smt. Vidya Devi widow of Surat Singh was recorded as owner in possession of suit property. Jamabandi Ext. P-1 for the year 1993-94 prepared by public official in discharge of official duty will form part and parcel of judgment. It is well settled law that concurrent findings of facts of learned trial Court and learned first appellate Court based upon material available on record should not be interfered unless same are perverse or contrary to law. See: AIR 1969 S.C. 1291 titled Gappulal Vs. Shrifi Dwarkadheeshji . See: Krishna Mohan Kul @ Nani Charan Kul and Another Vs. Pratima Maity and Others, . See: R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, and also See: M.S.V. Raja and Another Vs. Seeni Thevar and Others, . In the present case findings of learned trial Court and learned first appellate Court qua findings of facts are not perverse and contrary to law but based upon records of right prepared by public official in discharge of official duty under HP Land Revenue Act which remained un-rebutted on record due to non-examination of public official who prepared record. The judgment and decree passed by learned trial Court and learned first appellate Court are upheld.

In view of the above stated facts appeal fails and is hereby dismissed so also the pending application(s) if any leaving the parties to bear their own costs.