Smt. Bimla Sharma and Others vs Sh. Jagdish and Others

Sanjay Karol, J.—This regular second appeal has been filed by the plaintiff under the provisions of Section 100 of the Code of Civil Procedure.

The appeal was admitted on the following substantial question of law:

Whether the Lower Appellate Court being a final Court of facts was not required to discuss the oral and documentary evidence while determining Point No. 1...?

The point determined by the lower Appellate court reads as under:

Whether the defendants-appellants are in possession of a part of the suit land measuring 2 1/2 biswas comprised in old khasra Nos. 615, 616 and a part of Khasra No. 619 and the plaintiff-respondent is not entitled to the relief of permanent prohibitory injunction in respect of the said portion of the suit land?

Plaintiff Sh. Geeta Ram filed a suit against the present respondents/defendants praying for the following relief:

Suit for permanent prohibitory injunction restraining the Real Defendants No. 1 to 4 not to interfere in any way in the land measuring 0.15 bigha comprising in Khewat No. 78 min, Khatoni No. 96 min, old Khasra Nos. 615, 616, 618, 619 794 New Khasra No. carved as 146 situated in Village Dabta, Pargna Fatehpur, Sub Tehsil Shri Naina Deviji, District Bilaspur, HP, through themselves, through their servants, Agents, in alternative, if Real Defendants succeeds in taking forcible possession during the pendency of suit, suit land in possession be restored.

Defendants resisted the suit on the ground that they had become owners of the land comprised in khasra Nos. 615, 616 by way of adverse possession and on the land comprising khasra Nos. 619 and 146 there was a path to which they had easementary rights.

Based on the pleadings of the parties Trial Court struck the following issues:

Whether the plaintiff alongwith proforma defendants are owners in possession of whole of the suit land? OPP

Whether defendant No. 1 has become owner of khasra No. 615 and 616 by way of adverse possession as alleged? OPD-1

Whether there is a path in existence as alleged and defendant No. 1 Shri Jagdish has a right of easement? OPD-1

Whether the plaintiff has no cause of action? OPD-1

Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD-1

Whether this Court has got no jurisdiction to try and decide the present suit? OPD-1

Whether the plaintiff has no right to file the present suit? OPD-1

Whether the suit is not maintainable in the present form? OPD-1

Whether the suit is time barred? OPD-1

Whether the plaintiff is estopped from filing the present suit by his act, conduct, omissions and deeds? OPD-1

Relief.

Local Commissioner was appointed who also submitted his report. The Trial Court found that as per revenue record Ext. P-1 (missal hakiat) plaintiff alone was recorded as owner in possession of land comprised in khasra Nos. 615, 616, 618, 619, 794/620 of which new khasra number 146 was carved. Defendant failed to prove that he had any easementary rights over the path on the suit land. Consequently suit was decreed in terms of judgment and decree dated 16.10.1990 passed by the learned Sub Judge, Bilaspur, H.P. in Civil Suit No. 83/1 of 89/87, titled as Geeta Ram v. Jagdish and Ors. in the following terms:

In view of my discussion made above while discussing issues No. 1, 2, 3 and 10, the plaintiff has succeeded in proving that the defendants are threatening to dispossess the plaintiff from the suit land for which they have no right. So, I decree the suit of the plaintiff with costs and I restrain the defendants (contesting) permanently from interfering in the suit land comprising in khasra Nos. 615, 616, 616, 619, 794 (old) new khasra No. carved as 146 khewat No. 78 min khatouni No. 96 min land measuring 0-15 bigha situated in village Dabeta, Pargna Fatehpur, Sub Tehsil Shri Naina Deviji, District Bilaspur, Himachal Pradesh in any way, means, themselves, through their agents or servants. Decree sheet be prepared accordingly. File after completion be consigned to Record Room.

Aggrieved of the same defendants Sh. Jagdish, Sh. Papu, Smt. Shakuntla and Sh. Panku filed an appeal before District Judge, Bilaspur who framed the point for determination. Vide judgment and decree dated 3.8.1999, passed in Civil Appeal No. 79 of 1990 District Judge Bilaspur partly reversed the findings of the trial Court and modified the decree. The lower Appellate Court found that on khasra Nos. 615, 616 and part of khasra No. 619 defendant was in possession to the extent of 2 1/2 biswa of land. Defendant''s witnesses Sh. Jagdish (DW-1) and Sh. Bhagat Ram (DW-2) could prove possession on the same to be that of the defendants. However since plaintiff had not mentioned in the suit that he was dispossessed to the extent of the land mentioned aforesaid therefore no decree for possession could be passed in their favour. Importantly the lower Appellate Court held that defendant had failed to prove that they had become owners of the land by way of adverse possession.

Heard the learned Counsel for the parties and also perused the record.

I am of the considered view that findings returned by the lower Appellate Court are not based on proper appreciation of pleadings and evidence led by the parties. Importantly Court recorded the concession made by the defendants that they could not substantiate their claim of adverse possession. Having come to the conclusion that defendant was in possession of 2 1/2 biswa of land and had no right thereupon the Court wrongly interfered with the finding recorded by the Trial Court. Plaintiff had made an alternative prayer of possession. The suit ought to have been decreed in toto. Consequently findings as also the judgment and decree is reversed to the aforesaid extent.

It has also been argued by Sh. B. P. Sharma, learned Senior Counsel that there is no proof or pleading with regard to the defendants'' interference on the suit land. This point cannot be allowed to be urged at this stage. Both the Courts below have decreed the suit by way of concurrent findings of fact. The Trial Court decreed the plaintiff''s suit with respect to the entire land and the lower Appellate Court also injuncted the defendants from interfering with the same, except to the extent of 2 1/2 biswa of land found to be in their possession.

My attention has also been invited to the report of the Local Commission to contend that the Local Commissioner had found the parties to be possession of their respective portions. This report already stands considered by the Trial Court in para 8 of its judgment. I see no reason to differ with the findings. This issue was also not urged before the lower Appellate Court. That apart report deals with khasra numbers other than the one which are held to be in plaintiff''s possession. Substantial question of law is answered accordingly.

Consequently the present appeal is allowed. Judgment and findings returned by the lower Appellate court are reversed and that of the Trial Court affirmed.