Prakash Chand vs Bhagat Ram and Others

Kamlesh Sharma, J.—This appeal is directed against the decree and judgment dated 4th January, 1933 passed by the Additional District Judge, Kangra at Dharamshala, whereby the decree and judgment dated 22nd March, 1979 of Sub-Judge, Dharamshala, camp at Kangra, dismissing the suit of the Appellant-Plaintiff Parkash Chand were affirmed.

The facts, in brief, are that the Appellant-Plaintiff filed a suit on 31st August, 1965 for possession of the land comprised in Khasra No. 1684/1 measuring 1 Kanal 7 Marlas and Khasra No. 1689/1 measuring 6 Marlas against the Respondents-Defendants, by demolition of structure and the ''Barrs'' existing thereon. His allegations were that he had purchased the land comprised in Khasra No. 1684 and 1689 in the year 1960 and in October, 1964 the Respondents-Defendants forcibly encroached upon a part thereof which is the suit land as described hereinabove. He got the demarcation conducted on 26th June, 1965 and the encroachment made by the Respondents-Defendants was verified.

The Respondents-Defendants resisted the suit and denied the allegations of encroachment as made by the Appellant-Plaintiff. Their case was that their possession over the suit land had been adverse since the time of their forefathers which has ripened into their ownership and the suit land has become part of their own land on which ''Barachh'' consisting of a number of fruit bearing and other trees is existing. Further, according to them, the Appellant-Plaintiff had knowledge of their possession at the time he purchased the suit land, as such, he is estopped by his act and conduct to file the suit against them. They also took the objection that the suit was not filed within limitation.

The defence of the Respondents-Defendants weighed with the trial Court and the suit was dismissed, holding that from the oral and documentary evidence on record, adverse possession of the Respondents-Defendants since long, that is, more than twelve years before the date of institution of the suit was proved as a result of which they have become owners. It was also held that even after the purchase of the suit land by the Appellant-Plaintiff, he allowed the Respondents-Defendants to continue in possession, as such, he was estopped from filing the suit. These findings were affirmed by the first appellate Court. Hence the present Regular Second Appeal.

This Court has heard the learned Counsel for the parties and gone through the record. Since the suit was filed on 31st August, 1965 and the suit land is situated in Tehsil Dehra, District Kangra, which was a part of erstwhile State of Punjab, the appeal is under old Section 100 CPC read with Section 41 of the Punjab Courts Act and this Court can interfere only if question of law arises in the appeal.

Sh. Sanjiv Kuthiala, appearing on behalf of the learned Counsel for Respondents-Defendants No. 1, 4 and 6, has raised a preliminary objection that there is no question of law involved in the present appeal and there are concurrent findings of fact arrived at by both the Courts below that the Respondents-Defendants have been in continuous, open and hostile possession of the suit land for more than 12 years and have become owners thereof. This Court finds substance in this submission and holds that the findings on the question of adverse possession are findings of fact (Please see: Sobha Nath Vs. Ram Baran and Another, and Smt. Raj Kumari v. Board of Revenue, U.P. Allahabad and Ors. 1982 ALJ 1281). Further, it is settled law that this Court, in Regular Second Appeal, has no jurisdiction to set aside the findings of fact. The Supreme Court has gone to the extent that howsoever erroneous the findings of fact may be the High Court has no jurisdiction u/s 100 CPC to correct that error. (Please see : Raruha Singh v. Achal Singh and Ors. AIR 1961 SC 1097 , R. Ramachandran Ayyar Vs. Ramalingam Chettiar, and Mst. Kharbuja Kuer Vs. Jangbahadur Rai, .

However, this Court has gone through the oral as well as the documentary evidence, especially the report of the Local Commissioner appointed by the trial Court and the documents Ex. D-4 and Ex. D-5 which were prepared during the consolidation in the year 1957. In the report of the Local Commissioner, it was found that the Respondent-Defendant No. 1 had encroached upon land measuring 1 Kanal comprised in Khasra No. 1684 and Respondent-Defendant No. 3 had encroached upon land measuring 6 Marlas comprised in Khasra No. 1684 and land measuring 5 Marlas comprised in Khasra No. 1689 and included these two pieces of land in the land comprised in Khasra No. 1688 owned by them and other Respondents-Defendants. The Local Commissioner had found that the total area of the land encroached upon by the Respondents-Defendants was 1 Kanal 11 Marlas on which fruit trees and other trees were grown details of which were also given by him in his report. The details of the trees given by the local Commissioner tally with the details of trees given in documents Ex. D-4 and Ex D-5 admittedly prepared during the consolidation in the year 1957. A joint reading of these documents proves the case cf the Respondents-Defendants that on the suit land there exists ''Barachh'' of their land consisting of a number of trees of which they bad been in adverse possession since long. There are two more documents Ex. D-7 and Ex. D-8 (Nakal Fard Wasool Muawaja Ishtemal and Nakal Khatauni Paimaish) on record which if read with Ex D-5 (Nakal Register Karvai Ishtemal) further prove that the Respondents-Defendants No. 1 to 3 had paid compensation, when during consolidation in the year 1957 they were found in possession of the trees growing in ''Barachh'' existing over the suit land.

In view of these documents and other evidence on record, the Courts below have correctly held that the Respondents-Defendants were in adverse possession of the suit land much before it was purchased by the Appellant-Plaintiff in the year 1960 which had ripened into their title, the period of adverse possession being more than 12 years on the date of filing of the suit. Both the Courts below have rightly rejected the case of the Appellant-Plaintiff that he was dispossessed by the Respondents-Defendants in October, 1964 as he has failed to prove the same by producing any reliable and cogent evidence on record. In fact, he has not established on record that when he purchased the land, he was put in possession by Smt. Bishambri Devi previous owner from whom he had purchased or whether she herself was in possession of the suit land.

Sh. Chhabil Dass, learned Counsel for the Appellant-Plaintiff has urged that the onus to prove the exact date since when they were in adverse possession of the suit land was on the Respondents-Defendants which they have failed to discharge For making this submission, he has relied upon S.M. Karim Vs. Mst. Bibi Sakina, and Buta Ram v. Tarsem Lal and Ors. 1987 PLJ 255. There cannot be any dispute for the legal proposition that whenever the Defendant raises the plea of adverse possession, it is for him to prove that he has been in continuous, open and hostile possession to the title of the real owner to his knowledge for the last more than 12 years prior to the filing of the suit. But in the facts and circumstances of the present case, the Respondents-Defendants have successfully discharged this onus and have proved by oral and documentary evidence, which has been discussed hereinabove, that their possession over the suit land was of much longer period than 12 years on the date of filing the suit as they were found in possession of fruit bearing trees standing on the suit land in the year 1957 when consolidation took place. From the description of the trees standing on the suit land, it was proved that those were planted by the Respondents-Defendants many years before 1957. Hence there is no substance in the submission made on behalf of the Appellant-Plaintiff.

No other point has been raised. In the result, the appeal is dismissed leaving the parties to bear their own costs.