Pawan Kumar and Another vs Sheela and Others

Surjit Singh, J.—This appeal is directed against the judgment and decree dated 30.7.1997 of learned Additional District (I), Kangra at Dharamsala, whereby dismissing the appeal of the appellant defendant, decree dated 16.8.1996 of the trial Court has been upheld and affirmed.

Respondents 1 to 6 (hereinafter called ''plaintiffs'') filed a suit for declaration that they were owners in possession of suit land, described in the plaint, as also in the judgments of the two Courts below, but the defendant-appellant Prem Chand, in connivance and collusion with the settlement staff, had got himself recorded as mortgagee, in respect of a part of the suit land and as claimant-vendee in respect of rest of the suit land, during the latest settlement and on the strength of those entries, was threatening to interfere with their possession. Therefore, in addition to seeking a declaration of their title, they prayed for issuance of permanent prohibitory injunction, restraining the appellant-defendant from interfering with their possession and also for mandatory injunction, directing the revenue officials to correct the entries.

Suit was contested by the appellant--defendant, who claimed that he had been in possession of the suit land for the last 15-16 years and had, therefore, acquired title by adverse possession. Locus standi of the plaintiffs to sue was challenged. Plea of estoppel was also raised. Suit was alleged to be barred by time. Necessary parties were stated to have not been joined. Learned trial Court came to the conclusion that entries in the revenue papers, showing the appellant-defendant in possession of the suit land as mortgagee (in respect of a part of the suit property) and as claimant vendee (in respect of rest of the suit property), were wrong, without any basis and as such not binding upon the plaintiffs-respondents. Consequently, the suit was decreed. Appeal filed by the appellant-defendant before the District Judge stands dismissed.

Appeal was admitted on the following substantial questions of law:

When the defendant-appellant has been shown to be in uninterrupted possession of the suit property since the year 1970, was the suit for mere declaration and mandatory injunction maintainable?

When the entries in the revenue record were duly incorporated in the Settlement proceedings, plaintiff-respondents having challenged the said proceedings before the appropriate authorities, was the suit maintainable for declaring such entries to be illegal after the lapse of about 16 years?

Whether the plaintiff-respondents could be tenant of defendant-appellant to deny him his right to assert adverse possession of the suit property? Whether the findings of both the learned Courts below on the question of adverse possession are the result of misreading the material evidence and misquoting and mis-construing the correct law?

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

There is absolutely no evidence in support of defendant-appellant''s plea that he had been in possession of the suit property for more than 12 years, at the time of institution of the suit by the respondents-plaintiffs. Both the Courts have given concurrent finding to this effect, after appraisal of the evidence adduced by the parties. Appellant-defendant had been recorded in possession of the suit land in the revenue papers, particularly the Misal Hakiyat, as mortgagee, in respect of a part of the suit land and as claimant-vendee, in respect of rest of the suit land. Appellant-defendant did not produce any evidence, indicating that portion of the suit land had been mortgaged to him, and that another portion had been sold to him or had been sought to be sold to him.

In view of the above factual position, substantial question of law No. 1 does not arise.

Question No. 2 also does not arise, because it was not the case of the appellant-defendant that respondents-plaintiffs had approached the settlement authorities for correction of the entries and the said authorities had rejected their claim.

As regards the third substantial question of law, respondents-plaintiffs never claimed that they were tenants under the appellant-defendant and, therefore, this question of law also does not arise.

Since there is no substantial question of law involved in the present appeal and there is concurrent finding by the two Courts below that entries in favour of the appellant-defendant, showing him in possession, are without any basis and that the respondents-plaintiffs are owners in possession of the suit land, appeal is dismissed.