Smt. Vidya Devi vs Smt. Nirmla Devi alias Nimmo and Others

V.K. Sharma, J.—The challenge herein in this Regular Second Appeal is against the judgment and decree dated 21.9.2000, of the learned District Judge, Hamirpur, H.P., affirming the findings returned by the learned trial court (Sub Judge 1st Class (II) Hamirpur, H.P.), vide judgment dated 10.2.1993, whereby, the suit for grant of a decree of perpetual prohibitory injunction filed by late Shri Rattan Chand, predecessor-in-interest of the Respondents herein against Smt. Vidya Devi, Appellant herein, was decreed in the following terms:

In view of my findings on the aforesaid issues, the suit of the Plaintiff succeeds and accordingly, I pass a decree for permanent prohibitory injunction in favour of the Plaintiff and against the Defendant to the effect that the Defendant is restrained by way of permanent prohibitory injunction from interfering over the land in dispute or cutting trees from the land comprised in khata No. 52 min, khatoni No. 62 min, khasra Nos. 257, 269, 306/1, 307, 394, 397, 505, 511, 516 kita 9, measuring 8K-16M as per jamabandi for the year 1985-86 situated in Tika Bagehra Bohla, Tappa Beer Bagehra, Sub Tehsil Sunjuanpur, Distt. Hamirpur, H.P. with costs of the suit. Decree sheet be prepared accordingly and file after completion be consigned to the record room.

Shorn of details the case of the Plaintiff was that he was owner in possession of the suit land bearing khata No. 52 min, khatoni No. 62 min, khasra Nos. 257, 269, 306/1, 307, 394, 397, 505, 511 and 516, plots 9, measuring 8 Kanal 16 Marla, as per jamabandi for the year 1985-86, situate in Tika Bagehra Buhla, Tappa Beer Bagehra, Sub Tehsil Sujanpur, Distt. Hamirpur, H.P. The suit was filed on the allegations that the Defendant had started openly threatening to dispossess the Plaintiff and to cut trees from the suit land.

The suit was contested by the Defendant by raising plea of adverse possession, which did not find favour either with the learned trial court or with the learned first Appellant court.

The appeal was admitted on the following substantial question of law vide order dated 12.4.2001:

Whether both the courts below have misread and misinterpreted the evidence to come to the conclusion that the Respondent-Plaintiff has become owner of the land in dispute by way of adverse possession?

On a bare perusal of the above substantial question of law as framed, it is apparent that due to some inadvertence and oversight it has been mentioned therein that both the courts below had by misreading and misinterpreting the evidence come to the conclusion that the Respondent-Plaintiff has become owner of the land in dispute by way of adverse possession. Whereas, in fact, the plea of adverse possession was raised by the Appellant/Defendant Smt. Vidya Devi, which was repelled by both the courts below, as already noticed.

I have heard the learned Counsel for the parties and gone through the record.

In essence the findings returned by the courts below are concurrent findings of fact. The record reveals that a similar plea of adverse possession was unsuccessfully raised by the Appellant/Defendant Smt. Vidya Devi, earlier also, as is apparent from the copies of judgment and decree dated 8.5.1989, Exts. P-3 and P-4, passed by the learned District Judge, Hamirpur (H.P.) in Civil Appeal No. 186 of 1986, titled Vidya Devi v. Rattan Chand. In this view of the matter, judgment and decree dated 8.5.1989, Exts. P-3 and P-4, operated as res judicata against her and as such she was precluded from raising the same plea once again during the course of the present litigation.

In view of the above, the appeal, which does not raise any question of law, what to say of substantial question of law, is dismissed being devoid of any merit, leaving the parties to bear their own costs throughout.