Santosh Kumari and Others vs Krishna Devi and Others

Sanjay Karol, J.—Appellants have filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 29.6.2013, passed by District Judge, Kangra at Dharamshala, Himachal Pradesh, in Civil Appeal No. 66-K/XIII/2007, titled as Fakir Chand (deceased) through LRs & another v. Roshan Lal (deceased) through LRs, whereby judgment and decree dated 30.5.2007, passed by the Civil Judge (Junior Division)-II, Kangra, District Kangra, Himachal Pradesh, in Civil Suit No. 54/96/94, titled as Fakir Chand v. Roshan Lal, stands affirmed.

Pleading mutually destructive pleas of tenancy and adverse possession, plaintiff Fakir Chand (predecessor-in-interest of the present appellants), filed a suit, seeking protection of his possession in the suit property. Declaration, allegedly reflecting incorrect entries of defendants'' ownership, in the revenue record, was also made subject matter for the suit.

Defendant Roshan Lal (predecessor-in-interest of the present respondents No. 1 to 3), apart from filing written statement refuting plaintiffs'' allegation, filed Counter Claim, seeking possession of the suit property from the plaintiff.

Based on the pleadings of the parties, trial Court framed the following issues:

"1. Whether the plaintiff is a tenant of building and the agricultural land comprising in Khasra Nos. 158/2 and 159/2, as alleged? OPP

Whether the revenue entries showing the defendant in self cultivation of the land comprising in Kh. Nos. 158/2 and 159/2 are wrong, null and void and liable to be rectified, as alleged? OPP

If issue No. 1 is not proved in affirmative whether the plaintiff has become the owner of the land underneath the building and the remaining agricultural land by way of adverse possession, as alleged? OPP

Whether the order of A.C. IInd Grade, Kangra dated 31.1.1989 and of Sub Divisional Collector dated 16.6.1993 are wrong, null and void and without jurisdiction, as alleged? OPP

Whether the plaintiff is entitled to the relief of permanent prohibitory injunction against the defendant as prayed for? OPP

Whether in the alternative, the plaintiff is entitled to the relief of mandatory injunction against the defendant, as prayed for? OPP

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

Whether the suit is barred by limitation? OPD

Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD

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

Whether the plaintiff has no cause of action? OPD

Whether the plaintiff has no locus standi to file present suit? OPD

Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD

Whether the defendant is entitled to the possession of three rooms on the ground floor and three rooms on the first floor of the building as shown in the annexed site plan by ejectment of the plaintiff as prayed by way of counter claim? OPD

Whether the plaintiff is a licencee in the above stated premises, if so, its effect? OPD

Whether the plaintiff has constructed the above stated building with his expenses as alleged? If so its effects? OPP

Relief."

Trial Court dismissed the suit and allowed the counter claim, in the following terms:

"In view of my findings on issues supra, the suit of plaintiff is hereby dismissed and counter claim preferred by the defendant is allowed. The defendant is entitled to possession of house consisting of 3 rooms in ground floor and three rooms on the first floor of the building attached drawing room and varandha, bath room and latrine and cattle-shed constructed by the defendant on his land compromised in Khasra Nos. 159/2, 158/2. There is no order as to costs. Decree sheet be drawn accordingly. File after completion be consigned to record-room."

Findings of fact, judgment and decree stand affirmed by the Court below.

Having heard learned counsel for the parties as also perused the record, I am of the considered view that no case for interference is made out in the present appeal, more so when no question of law, much less substantial question of law, arises for consideration.

Noticeably, parties have been litigating since the year 1994 and all litigations must come to an end at some stage, moreso when no case for interference is made out.

Before the lower Appellate Court, plaintiff filed an application, seeking permission to lead additional evidence. The said application also stands rejected.

Insofar as plaintiff''s application for leading additional evidence is concerned, in my considered view, lower Appellate Court rightly did not allow the same, as the document sought to be placed on record was well within his knowledge and possession. The judgment was pronounced by the trial Court on 30.5.2007. Whereas certified copy of the document sought to be placed on record was obtained on 27.10.2007, but application was filed only on 2.11.2012, much after appeal was filed before the lower Appellate Court.

As per revenue record, defendant is the recorded owner of the suit premises, comprising of land and constructed house. On the strength of Rapt dated 7.10.1980 (Ex. PW-1/A & Ex. PW-1/B) and report dated 12.4.1985 (Ex. PW-2/A), plaintiff sought correction of revenue entries, but since the matter was not taken to its logical end, in accordance with law, defendant continued to be recorded as owner of the suit premises.

Trial Court, while deciding the issues, rightly held that plaintiff had not built the house over the suit land. The same was constructed by the defendant, who in fact allowed the plaintiff to occupy the same as a licencee.

There is nothing on record to establish the plaintiff''s plea of tenancy over the suit premises. In fact, plaintiff has taken mutually destructive and contradictory pleas. He could neither prove his tenancy nor his possession over the suit premises, hostile to that of true owner.

Also, there is nothing on record to show that plaintiff had declared his animus possidendi, exhibiting his intention hostile to the knowledge of the defendant. In any event, essential ingredients so as to constitute a right of adverse possession, in terms of law laid down by the apex Court in P.T. Munichikkanna Reddy and Others Vs. Revamma and Others, ; and Mandal Revenue Officer Vs. Goundla Venkaiah and Another, have neither been pleaded nor proved on record.

Plaintiff is a mere licencee over the suit land. Entries made by the revenue Officers during the years 1989-93, in favour of the defendant cannot be said to be illegal or void in any manner. The suit was filed only on 03.06.1994

As such, it cannot be held that findings returned by the Courts below are illegal, perverse, not borne out of record or erroneous, warranting interference by this Court. The Courts below have rightly dismissed the plaintiff''s suit and allowed the counter claim preferred by the defendant. No question of law, muchless substantial question of law, arises for consideration in the present appeal.

For all the aforesaid reasons, the appeal is dismissed and disposed of, so also the pending application(s), if any.