Shanti Devi (Since Deceased), Through Her LR & Another vs Lachhman Dass & Others

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 29.09.2007, passed by the learned District Judge, Bilaspur, H.P. (Learned Appellate Court), vide which the judgment and decree dated 30.12.2005, passed by the learned Civil Judge (Senior Division), Bilaspur, District Bilaspur, H.P. (learned Trial Court), were upheld. (The parties shall be referred to in the same manner as they were arrayed before the learned Trial Court for the sake of convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned trial court seeking a permanent prohibitory injunction to restrain the defendants from interfering in the suit land described in the headnote of the plaint. A decree for possession was also prayed in case the defendants succeed in dispossessing the plaintiffs from the suit land during the pendency of the suit. It was asserted that the plaintiffs are the owners in possession of the suit land. The defendants are the owners of the adjacent land. They threatened to raise construction over the suit land. They were requested not to do so, but in vain. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by filing a written statement taking preliminary objections regarding the plaintiffs being out of possession, the plaintiffs not being competent to get the land exchanged, defendant No. 3 being in possession of Khasra No.118/96, measuring 2-1 bighas prior to grant and having become the owner by way of adverse possession and the plaintiffs being estopped to file the present suit by their act, conduct and acquiescence, etc. The plaintiffs' claim was denied on the merits. It was asserted that Kharsa No. 118/96 is in possession of defendant No.3. He had no right to exchange the land with the plaintiff. The suit was filed without any basis. Hence, it was prayed that the suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

The learned trial Court framed the following issues on 23.06.2004: -

Whether the plaintiffs are entitled to the relief of injunction as prayed for? OPP.

Whether defendant No.3 has become owner in possession of the suit land by way of adverse possession? OPD.

Whether the plaintiffs are estopped from filing the present suit? OPD

Relief.

The parties were called upon to produce the evidence, and plaintiff Ram Lal examined himself (PW-1). Defendant No.3 Lachhman examined himself (DW-1), Sohan Lal (DW-2) and Surinder Pal (DW-3).

The learned Trial Court held that the report of the Local Commissioner (Ext.PA) shows that defendant No.3, Lachhman Dass, is in physical possession of Khasra No.118/96. The plaintiffs did not challenge the report of the Local Commissioner, and the same has attained finality. The plaintiff, being out of possession, were not entitled to the relief of an injunction. The possession of defendant No. 3 was before the institution of the suit. Nautor land was granted to Jangi Ram, father of plaintiff No.1, on 23.10.1972, and it was exchanged before the completion of 15 years, contrary to the restriction imposed in the grant. No physical possession was handed over to the plaintiffs' predecessor-in-interest. Defendant No.3 was in continuous, peaceful and open possession and became the owner by way of adverse possession. The plaintiffs were estopped from filing the present suit. Hence, the learned trial Court answered issue No.1 in negative and issues Nos. 2 and 3 affirmative and dismissed the plaintiffs' suit.

Being aggrieved by the judgment and decree passed by the learned trial Court, the plaintiffs filed an appeal, which was decided by the learned District Judge Bilaspur (learned appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that Khasra No.118/96 was cultivable even before the exchange, which corroborates the version of defendant No.3 that he was in possession of the land. The Nautor was allotted to the plaintiffs' predecessor, and he could not have exchanged the land as per Rule 27-A of The H.P. Nautor Rules. The entries in the Roznamcha regarding the delivery of possession did not show in whose presence the possession was delivered, and could not be relied upon. Defendant No. 3 had constructed a house over Khasra No.118/96. He was in peaceful possession of the land since 31.03.1993 and had become the owner by way of adverse possession. There was no infirmity in the findings recorded by the learned trial Court; hence, the appeal was dismissed

Being aggrieved by the judgments and decrees passed by learned Courts below, the plaintiffs filed the present appeal, which was admitted on the following substantial questions of law on 10.01.2008: -

1 Whether both the Courts below have recorded erroneous and perverse findings presuming the possession of defendants on the part of the suit land, when there was no documentary evidence showing the possession of defendants-respondents over the land comprised in Khasra No.118/96? Have not both the Courts below acted in an erroneous and perverse manner in dismissing the entire suit when the dispute was raised by defendant No.3 on the part of the suit land?

2 Whether both the Courts below have misread and misconstrued the relevant provisions of Nautor Rules and terms of Patta by holding that bar of transfer of 15 years prohibited the exchange in favour of Shri Jangi Ram by the true owner i.e. State of H.P? When the order of grant of Nautor in favour of Shri Jangi Ram predecessor of plaintiffs remained unchallenged, the exchange which was after about 10 years, have not both the Courts below exceeded their jurisdiction in sitting as a Court of appeal over the order of exchange passed by competent authorities which also remained un-assailed for more than 7 years till the institution of the suit? Have not both the Courts below exceeded their jurisdiction and assumed the jurisdiction as an Appellate Court over the orders of competent authorities under the relevant Nautor rules, which provided an efficacious remedy for challenging such orders?

Whether both the Courts below have recorded erroneous and perverse findings by holding that the Rojnamcha evidencing the delivery of possession was merely in papers, especially when there were consistent entries in the revenue record showing the predecessor-in-interest of the plaintiffs and thereafter the plaintiffs to be owners of the suit land? Have not both the Courts below committed a grave error of law and jurisdiction in holding that such entries stood rebutted by relying upon the report of the Local Commissioner, which was irrelevant, especially in view of the fact that the defendant raised the construction during the pendency of the suit?

Whether both the Courts below have mechanically and in an arbitrary, erroneous and perverse manner proceeded to sustain the claim of adverse possession by ignoring the fact that there was neither proper pleadings nor evidence proving the necessary ingredients, especially in the absence of the animus of hostility exhibited in favour of the true owner, i.e., the State of H.P.?

I have heard Mr. Bhupinder Gupta, learned Senior Advocate, assisted by Mr Janesh Gupta, learned counsel for the appellants and Mr Sanjeev Kuthiala, learned Senior Advocate, assisted by Ms Tamanna Sharma, learned counsel for respondent No.1.

Mr Bhupinder Gupta, learned Senior Advocate for the appellants, submitted that the exchange was effected with the State of H.P. and the bar under Nautor Rules does not apply to the present case. There is a presumption attached to the official acts, and learned Courts below could not have rejected the entries in the Rapat Roznamcha by saying that they were paper entries. The claim of adverse possession was wrongly upheld by the learned Courts below. Therefore, he prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside.

Mr Sanjeev Kuthiala, learned Senior Advocate for respondent No.1, submitted that both the learned Courts below have concurrently held that defendant No.1 has become the owner by way of adverse possession. This is a pure finding of fact which cannot be challenged in a regular second appeal. There is no perversity in the findings recorded by the learned Courts. Defendant No.3 was found in possession of Khasra 118/96 during the demarcation. The land could not have been exchanged in view of the restrictions imposed under H.P. Nautor Rules. The learned Courts below have rightly appreciated the material on record, and no interference is required with the findings recorded by the learned Courts below. Hence, he prayed that the present appeal be dismissed. He relied upon judgments of the Hon'ble Supreme Court in T. Anjanappa and others vs. Somalingappa and another (2006) 7 Supreme Court Cases 570 and Chatti Konati Rao and others vs. Palle Venkata Subba Rao (2010) 14 SCC 316 in support of his submissions.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

Substantial question of law No.2

Mr Bhupinder Gupta, learned Senior Advocate for the appellants, submitted that the learned Courts below erred in holding that an exchange is a transfer. This submission cannot be accepted.

Section 118 of the Transfer of Property Act defines exchange. It reads that when two persons mutually transfer the ownership of one thing for the ownership of another, neither thing nor both things being money, the transaction is called an exchange. It also provides that a transfer of property in completion of exchange can be made in a manner provided for the transfer of such property by sale. Therefore, the legislature itself has defined the exchange as the transfer of ownership from one property to another. Further, Section 5 of the Transfer of Property Act defines the transfer of property as an act by which a living person conveys property in the present or in future to one or more other living persons or to himself, or himself in one or more other living persons, and to transfer property is to perform such an act. In an exchange, the property is conveyed by one person to another in consideration of the ownership of another property. Thus, the exchange fulfils all the criteria of the transfer, and it cannot be said that it does not amount to a transfer.

Rule 11 of the H.P. Grant of Nautor Land to landless persons and other eligible persons Scheme 1975, provides that the grantee shall not transfer the land granted under this scheme to any person within a period of 20 years from the date of taking over the possession of the land by him and in case of contravention, the land would be liable to be resumed. Therefore, a right has been vested in the state to resume the land in case of transfer. In the present case, the land belonged to the State. The State had allotted and exchanged the land. The State had not resumed the land, which shows that the State was not aggrieved by the transfer. Even otherwise, the purpose was to prevent the alienation of the land to deprive a person from the use of the land, and it is difficult to see how the State can be prevented from substituting the land allotted by it to a person on a good cause being shown. This would take away the right of the State to allot the land in favour of the person under the Scheme. In any case, in the absence of any resumption by the state, it is difficult to see how the defendants could have taken the plea that the exchange was bad. Therefore, learned Courts below erred in holding that the exchange was bad, and the substantial question is answered accordingly.

Substantial questions of law No.1 & 3.

Learned trial Court appointed a local commissioner to demarcate the land on 21.07.2001, and the report was received on 7.01.2002. The matter was listed for filing the objections on 27.02.2002, when a statement was made that no objections were to be filed by any party. Learned Courts below had rightly held that the report of the Local Commissioner had attained finality in the absence of objections to it. This report (Ext. PA) specifically mentions that Khasra No. 118/96 was found in possession of defendant No. 3, who had constructed a house on it. The other Khasra numbers were found in possession of the plaintiffs. The plaintiff Ram Lal admitted in his cross-examination that the land of defendant Lachhman Dass is located adjacent to Khasra no. 118/96. He admitted that he had made a statement (Ext. PX) before the Local Commissioner regarding his satisfaction with the demarcation. The plaintiff also admitted that the house of the defendant was two-storeyed and that he had a field adjacent to the house. The admission made by the plaintiff and the report of the Local Commissioner clearly showed that defendant No.3 was in possession of Khasra No.118/96.

Copy of jamabandi for the year 1966-67 (Ext. D-7) shows that Hajru son of Laturia is in possession of Khasra No.

Khasra No. 22 was changed to Khasara No. 17 in the copy of missal hakiat (Ext. D-6). This Khasra No. 17 was exchanged by the State with Jangi Ram as per mutation (Ext.D-4).

Defendant Lachhman Dass (DW-1) stated in his examination-in-chief that Khasra No. 22 was in possession of Hajru, who was the father of defendants No. 1 and 2. His statements are duly corroborated by the entry in the copies of the Jamabandies, which carry with them a presumption of correctness. Therefore, the learned Courts below had rightly held that the State was not in possession of the land before the allotment. The revenue entries show that Hajru has been in possession since 1966-1967. There is no order of dispossession of Hajru. The entry in the Rapat Rojnamcha reads that the possession was delivered to Ram Lal, son of Jangi Ram, on 11.01.1984. When the revenue entries depicted Hajru to be in possession, the possession could not have been delivered to Ram Lal without dispossessing Hajru and in the absence of any order of dispossession, the learned Courts below had rightly held that the entries were paper entries. Hence, the substantial question of law are answered accordingly.

Substantial question of law No.4

The defendants specifically asserted that their possession is open, continuous, and hostile. This is corroborated by the entries in the copy of Jamabandi made in favour of Hajru and the report of the Local Commissioner, in which defendant No. 3 was found in possession. This is a pure finding of fact recorded by learned Courts below, and no perversity has been shown in it. Therefore, the same cannot be interfered with in the regular second appeal. It was laid down by the Hon'ble Supreme Court in Rabindranath Panigrahi v. Surendra Sahu, 2025 SCC OnLine SC 504, that interference with the finding of adverse possession cannot be disturbed in a regular second appeal. It was observed:

"10. Additionally, we find that both the Courts below held the relationship of landlord and tenant to be proved between the parties. This, in our view, is a finding of fact which could not be disturbed by the Court in the Second Appeal, as it was not open for the Court to examine the evidence assuming First Appeal jurisdiction, unless the findings returned were perverse. In the present facts, the findings of perversity, in our view, are in themselves perverse. This we say so for two reasons: One, that the defendant has been unable to prove his ownership of the subject matter property by way of adverse possession, establishing open, continuous and hostile possession; and two, that the plaintiff's ownership, which he claims to have devolved upon him by virtue of being the adopted son of Smt. Ashalata Devi (original owner) has never been challenged and, as such, has attained finality.

Hence, it can be concluded that the first substantial question of law is unjustified as it is entirely a question of fact and, therefore, not open to adjudication. On the second aspect too, interference by the High Court in the circumstances was unwarranted."

The judgments in Chatti Konati Rao (supra) and T. Anjanappa and others (supra) deal with the well-settled ingredients of adverse possession, and it is not necessary to reproduce them.

Hence, there is no infirmity in the findings recorded by the learned Courts below, upholding the defendants' claim of adverse possession, and the substantial question of law is answered accordingly.

Final Order

In view of the above, the present appeal fails, and it is dismissed, so also the pending application(s), if any.

The record of the learned Courts below be returned along with a copy of this judgment.