Sukh Ram (Deceased) Through His Legal Representative Papender Kumar And Others vs Narain Dass And Others

Ajay Mohan Goel, J

Brief facts, necessary for the adjudication of the present appeal are as under:-

The predecessor-in-interest of the present appellants (hereinafter referred to as the ‘plaintiff’) namely Sukh Ram has filed a suit in the Court of

learned Civil Judge (Junior Division), Sundernagar, District Mandi, H.P., i.e. Civil Suit No.157/2000, praying for a decree of permanent prohibitory

injunction against the respondents/defendants (hereinafter referred to as the defendants). The case of the plaintiff was that he was owner-in-

possession of the suit land comprised in khewat No.87, khatauni No.211, khasra Nos.1073, 1109, kita-2, measuring 0-19-14 bighas, situated in Muhal

Bhaur/4, Tehsil Sundernagar, District Mandi, H.P. and that the defendants, who were strangers to the same and had no right, title or interest over the

same and were causing interference since 16.5.2000, by removing crops standing upon the same.

The case was contested by the defendants on the ground that the plaintiff was not owner-in-possession of the suit land and revenue entries

reflecting him as such were incorrect. As per the defendants, the suit land was taken by defendant No.1 from the plaintiff in the year 1974 by way of

exchange in lieu of his land measuring 1 bigha, situated in Muhal Nag-Challa. As per the defendants, taking advantage of a General Power of

Attorney, executed by the defendants in favour of the plaintiff, he (i.e. the plaintiff) transferred the land in favour of his son. In the alternative, the

case of the defendants was that they had become owners-in-possession of suit land by way of adverse possession and they had also constructed a

residential house over the suit land by spending more than Rs.8,00,000/- over the same.

On the basis of pleadings of parties, learned Trial Court framed the following issues:-

 “1. Whether suit land is being possessed by the plaintiff as owner as alleged? OPP.

Whether defendants are interfering in the suit land in an illegal manner? OPP.

Whether suit is not maintainable? OPD.

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

Whether plaintiff has no cause of action to file the present suit? OPD.

Whether suit is barred by limitation? OPD.

Whether suit is hit by the provisions of Section 10 CPC).

Reliefâ€​.

These issues were decided by the learned trial Court as under:-

Issue No.1: No.

Issue No.2: No.

Issue No.3: Yes.

Issue No.4: Yes.

Issue No.5: Yes.

Issue No.6: Yes.

Issue No.7: No.

Issue No.8: Suit of the plaintiff is dismissed as per operative part of the judgment.

The suit of the plaintiff was thus dismissed by the learned trial Court by holding that the plaintiff was not entitled for the relief of permanent

prohibitory injunction, as the plaintiff had not been able to demonstrate that he was in possession over the suit land. Learned Trial Court held that

plaintiff had admitted the possession of the defendants over the same and in the absence of the possession of the plaintiff over the suit land, he was

not entitled for the relief prayed for.

In appeal, the findings returned by the learned trial Court were upheld. Feeling aggrieved, the plaintiff has filed the present appeal.

This Court has been informed that during the pendency of the present appeal, the plaint was permitted to be amended and thereafter, on 11.8.2008,

this Court framed following issue and remanded back the case to the trial Court for fresh decision on the same:-

“1. Whether the plaintiff is entitled to vacant possession, as alleged? OPPâ€​.

As per the record, learned Trial Court has decided the issue so framed, vide judgment dated 20.10.2008. While doing so, learned trial Court framed

following two questions for adjudication:-

Whether the possession of the defendants is matured into ownership of the suit land by way of adverse possession?

Whether the plaintiff is entitled for the vacant possession?

It is born out from the judgment of the learned trial Court that despite opportunity, evidence was not led by either of the parties in support of the

issue framed by this Court, upon which the matter was remanded back to the trial Court. Thereafter, the issue in question so framed, was answered

by the trial Court by holding that whereas the defendants had been able to demonstrate that they had become owners-in-possession of the suit land

comprised in khasra No.1073 by way of adverse possession, they had not been able to prove the factum of their having become owners by way of

adverse possession qua the suit land comprised in khasra No.1109. Learned trial Court accordingly, held that the plaintiff was entitled for vacant

possession of the land comprised in khasra No.1109. The objections filed by the respondents/defendants to the findings so returned vide judgment

dated 20.10.2008 on remand, vide objections No.526 of 2009, which are being decided alongwith the appeal itself.

This appeal was admitted on 16.4.2009 on the following substantial questions of law:-

“Whether the judgment and decree of the trial Court with regard to granting relief of adverse possession in favour of the respondents of khasra

No.1073, measuring 0-3-3 bighas is against the record as there is no pleading and evidence with regard to adverse possession on behalf of the

respondents?â€​.

Mr. G.R. Palsra, learned counsel for the appellants has primarily argued that the findings returned by the learned trial Court upon remand, that the

defendants had become owners of the suit land comprised in khasra No.1073, measuring 0-3-3 bighas, are not borne out from the records. Mr. R.K.

Sharma, Learned Senior counsel for the respondents has argued that the findings returned by the trial Court that defendants were not able to prove

their possession over khasra No.1109 having been fructified by way of adverse possession, were not sustainable in law, as after remand, opportunity

was not granted to the parties to lead evidence on the issue.

I have heard learned counsel for the parties and have also gone through the judgments passed by the learned Courts below initially, as also the

judgment passed by the learned trial Court on remand.

A perusal of the judgment passed by the learned trial Court upon remand demonstrates that it is categorically recorded therein that the parties

were called upon to lead evidence over the issue framed by this Court, on which the matter was remanded back to the trial Court, but, the parties by

way of their separate statements on record stated that they do not intend to lead evidence.

While holding that the defendants had become owners-in-possession over the suit land comprised in khasra No.1073, learned trial Court held that

the plaintiff himself had admitted the factum of construction of a house over khasra No.1073, measuring 0-3-3 bighas by defendants with the consent

and permission of the plaintiff himself and that the plaintiff had never objected to the same. Learned trial Court has also held that Ext.P1, i.e.

jamabandi for the year 1981-82 demonstrated that there was an entry of a ‘Gair Mumkin Makan’ over khasra No.1073 I.e. the suit land. On

these basis, learned trial Court held that this clearly demonstrated that possession of the defendants over khasra No.1073 was open, continuous,

uninterrupted and peaceful since the day of exchange i.e. 28.5.1974. A perusal of the earlier judgments passed by the learned Courts below, against

which, the present appeal was preferred by the plaintiff, also demonstrates that there were concurrent findings returned in favour of the defendants

and against the plaintiff that the defendants were in possession over the suit land and that the plaintiff was not in possession over the same, which also

included khasra No.1073.

Record demonstrates that plaintiff Sukh Ram stepped into the witnesses box as PW1 and he admitted in his cross-examination that over the suit

land, initially there was a ‘Kacha house’ of the plaintiff existing upon the same, but after the same fell down, Narain Dass constructed a new

house upon the said suit land. He also stated that the said house stood constructed by Narain Dass about 20 years back. Statement of Sukh Ram was

recorded in the Court on 21.12.2002.

It is a matter of record, as is also evident from the jamabandi Ext.P1 that the house stands constructed by the defendants over the land comprised

in khasra No.1073.

Therefore, keeping in view the fact that the suit was filed in the year 2000 and in his statement recorded in the Court in the year 2002, plaintiff himself

haing admitted the factum of a house having been constructed over a part of the suit land about 20 years back, it is evident that as far as khasra

No.1073 is concerned, obviously the defendants were in possession over the same for more than 12 years and their possession over the same was

open, peaceful and hostile to the original owner i.e. the plaintiff. Incidently, the plaintiff has also admitted in his cross-examination that Narain Dass

had executed a General Power of Attorney in his favour and he had sold the land of Narain Dass in favour of his own sons. In this view of the matter,

it cannot be said that the judgment and decree of the learned trial Court with regard to granting relief of adverse possession in favour of respondents

qua khasra No.1073, measuring 0-3-3 bighas is against the record, pleadings and evidence. The said substantial question of law is answered

accordingly.

As far as contention of learned Senior Counsel for the defendants is concerned that the judgment and decree passed by the trial Court qua khasra

No.1109 is not sustainable because opportunity was not granted to the parties to lead evidence to substantiate the same, in my considered view, there

is no merit in the same. It is a matter on record as also evident from the judgment passed by the trial Court on record, that despite opportunity having

been granted, the parties stated before the learned trial Court that they did not intend to lead evidence in support of their contention with regard to the

issue as framed. In this view of the matter, the defendants cannot be now allowed to take the stand that the findings so returned qua khasra No.1109,

are bad in law for want of opportunity granted to them to lead evidence qua this issue.

In view of the findings returned hereinabove, this appeal as also the objections filed by the respondents/objectors are dismissed. No order as to

costs. Interim order, if any, stands vacated. Pending miscellaneous application(s), if any, also stand disposed of.