Dismissed

Niku Ram v. Tulsi Ram

Himachal Pradesh HC30 Nov 2017RSA/393/2010

Case brief

AI extract

What is this about?

The High Court allowed the second appeal of defendants challenging the decree for possession and mandatory injunction. The Court affirmed the lower appellate judgment, upholding the plaintiff's title based on a valid sale deed, dismissing allegations regarding adverse possession or joint possession, and setting aside the trial court's erroneous finding.

What did the court decide?

Confirmed decree for temporary and permanent restraint and delivery of possession of 3 biswas of land to Plaintiff.

Niku Ram Vs Tulsi Ram — Land Acquisition | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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RSA No.393 of 2010.

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Judgment reserved on: 20.11.2017. Date of decision: November 30, 2017.

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Niku Ram and others		…..Defendants-Appellants.
	Versus
Tulsi Ram and another		….Plaintiff-Respondent.

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting ?¹ No

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For the Appellant s	: Mr.Bhupender Gupta, Senior Advocate with Ms.Rinki Kashmiri, Advocate.
For the Respondents	: Mr.K.D.Sood, Senior Advocate with Mr.Rajneesh K.Lal, Advocate, for respondent No.1.

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Tarlok Singh Chauhan, Judge.

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The appellants are the defendants, who aggrieved by the judgment and decree passed by the learned District Judge, Bilaspur, on 25.05.2010 whereby he reversed the judgment and decree passed by the learned Civil Judge (Senior Division), Bilaspur, on 30.05.2009 have preferred this regular second appeal by invoking the provisions of Section 100 of the Code of Civil Procedure.

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The parties shall be referred to as plaintiff and defendants.

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The plaintiff filed a suit for permanent prohibitory injunction on the allegations that he had purchased the suit land comprised in Khata Khatauni No.33/46 min, Khasra No.1623/1108/1, measuring 0-3 bighas, situated in village Panjgain, Pargana and Tehsil Sadar, District Bilaspur,

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1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes

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from defendant No.4 Jamuna Devi (now deceased) through registered sale deed dated 07.09.2000 and was, therefore, the owner in possession of the suit land. Such possession had been delivered to him by defendant No.4 on 16.09.2000 and as such the defendants had no right, title or interest in the suit land. However, the defendants on 13.10.2000 entered into the suit land and started digging foundation over the same despite the request of the plaintiff not to do so. Hence, the suit.

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Defendants No.1 to 3 contested the suit by filing written statement wherein preliminary objections regarding maintainability, cause of action and estoppel were taken. It addition, it was averred that the suit land along with entire land in Khasra No.1623/1108, measuring 7 biswas and Khasra No.1120 land measuring 4 biswas, situated in village Panjgain was in exclusive possession of the defendants for the last 35-36 years over which they constructed their houses, shops, bathrooms and latrines etc. and the plaintiff had no right, title or interest in the suit land. It was further averred that defendants No.2 and 3 had purchased 3/11 shares measuring 3 biswas out of the land comprised in Khasra No.1623/1108 and 1120 vide sale deed dated 05.10.2000, but they were in possession of the entire land from the time of consolidation proceedings which took place about 36 years back and as such the defendants were the bonafide purchasers of the same. On merits, it was denied that the plaintiff is owner in possession of the suit land. Similar averments were made in reply in the written statement on merits to the claim set up by the plaintiff.

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Defendant No.4 filed separate written statement taking preliminary objections regarding maintainability and valuation. On merits,

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it was denied that the defendant No.4 had executed the sale deed regarding the suit land in favour of the plaintiff on 07.09.2000 and it was also denied that the possession of the suit land had been handed over to him. It was averred that the defendant was residing with her daughter Kamli and suit land was possessed by her on the spot and the plaintiff had, therefore, no right to file the present suit.

¶20

In replication filed by the plaintiff, the averments contained in the plaint were reiterated after refuting those of the written statement contrary to the plaint.

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On 01.11.2002, the learned trial Court framed the following

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issues:-

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“1. Whether the plaintiff is owner in possession of the suit land on the basis of sale deed dated 07.09.2000, as alleged?....OPP.

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Whether the defendants are interfering in the suit land, as alleged? ….OPP.

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If issue No.1 is proved in affirmative, whether the plaintiff is entitled to the relief of injunction, as prayed for? ….OPP.

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Whether the plaintiff is entitled to the relief of possession in the alternative? If so, to what extent and in what manner?....OPP.

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

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Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? ….OPD.

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Whether the defendants No.1 to 3 are owners in possession of the suit land having their houses, bathrooms and kitchen etc. therein? If so, its effect?...OPD.

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Whether the act and conduct of the plaintiff are bar to the present suit? …OPD 1 to 3.

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Whether the defendants No.2 & 3 have purchased 3/11 shares out of the suit land through registered sale deed

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dated 05.10.2000 from the defendant No.4 for a consideration of Rs.1,00,000/-? If so, its effect?...OPD 1 to 3.

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Relief.”

¶35

After recording evidence and evaluating the same, the learned trial Court partly decreed the suit of the plaintiff by holding him to be in joint possession of the land comprised in Khata Khatauni No.33/46 min, Khasra No.1623/1108 and 1120, measuring 11 biswas, as mentioned in Ex. PX-1. At the same time, the defendants were found to have raised construction on land more than 3 biswas and were accordingly restrained from raising any type of construction over the suit land till the partition of the same was effected by metes and bounds.

¶36

Aggrieved by the judgment and decree passed by the learned trial Court, both the parties filed separate appeals before the learned first appellate Court. As regards the plaintiff, his appeal was registered as Civil Appeal No. 36/2009, whereas, the appeal filed by the defendants was registered as Civil Appeal No.37/2009. Both the appeals were taken up together for consideration and the appeal filed by the plaintiff was allowed and the judgment and decree passed by the learned trial Court holding the plaintiff to be in joint possession of the land comprising Khasra No.1623/1108 and 1120 and further decree restraining the defendants from raising any construction over the suit land till its partition, was set aside and a decree for vacant possession was passed in his favour. However, liberty was reserved to the defendants to remove the construction material from the suit land at their own costs. Whereas, the appeal filed by the defendants was held to be devoid of any merit and accordingly dismissed.

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Aggrieved by the judgment and decree passed by the learned first appellate Court, the defendants have filed the instant appeal which on 13.12.2010 came to be admitted on the following substantial questions of law:-

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“1. When the plaintiff claimed to have purchased 3 biswas of land only out of the whole Khasra number measuring 7 biswas through a Sale Deed and Tatima, has not the Lower Appellate Court committed grave illegality in holding the plaintiff-respondent to be exclusive owner of 3 biswas of land denoted by Khasra No.1623/1108/1, especially when plaintiff-respondent despite notice under Order 11 Rule 14 of the Code of Civil Procedure failed to produce and prove the same? Are not the findings of Lower Appellate Court in reversing the judgment and decree of Trial Court who held plaintiff-respondent to be co-owner in joint possession with defendants-appellants; illegal, erroneous and perverse?

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Whether the Lower Appellate Court has acted with material illegality and irregularity in disallowing the application filed by defendants-appellants under Order 18 Rule 18 read with Order 26 Rule 9 and Section 151 of Code of Civil Procedure without assigning proper and cogent reasons which has vitiated the impugned judgment and decree and resulted in grave miscarriage of justice to appellants?

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Whether the impugned judgment and decree for vacant possession by ordering the removal of structures is erroneous and perverse inasmuch as plaintiff-respondent failed to value the suit for the purpose of Court fee and jurisdiction, especially when defendants-appellants proved the detailed measures of such structures existing on the suit land along with valuation thereof Ex.DW-8/A to Ex.DW-8/F, especially when the cause of action and the relief claimed in the suit was insufficient to grant such decree?

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Whether the Lower appellate Court has taken essentially wrong approach in the matter by applying the provisions of Article 65 of the Limitation Act on the assumption of vesting of absolute title in the plaintiff-respondent granting decree for vacant possession by removal of structures, when the record as well as finding of Trial Court proved that plaintiffrespondent along with defendants-appellants is co-owner in joint possession over the suit land and there is sufficient land still available in the same Khasra number to the extent of land purchased by plaintiff-respondent?”

¶44

I have heard the learned counsel for the parties and have gone through the records of the case.

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Substantial Questions of Law No.1, 3 and 4.

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Since all these questions are intrinsically inter-related and interconnected, they are taken up together for consideration.

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It would be noticed that in order to prove his case, the plaintiff stepped into the witness box as PW-1 and has duly proved the sale deed dated 16.09.2000 executed in his favour for a consideration of Rs.10,000/- by Jamuna Devi through her General Power of Attorney Natha Ram. Even though the witness was cross examined in detail, however, nothing adverse could be elicited therefrom.

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The statement of the plaintiff, in turn, has been duly corroborated by Natha Ram, who appeared as PW-2 and stated that he was General Power of Attorney of defendant No.4 vide which he was authorized to sell 7 biswas of land belonging to defendant No.4. He further proved the sale deed Ex.PW2/B which he had executed in favour of the plaintiff being the attorney of defendant No.4 for a sale

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consideration of Rs.10,000/- which he received from the plaintiff and in lieu thereof handed over the possession of the suit land to him. He further stated that eversince then the plaintiff is the owner of the suit land. Notably, even though this witness has been cross examined, but there is virtually no cross examination on these vital points.

¶51

Likewise, PW-3 Bhagwati Prashad has stated that he had scribed the sale deed Ex.PW2/B regarding the suit land as per instructions of Natha Ram, General Power of Attorney of Jamuna Devi, in presence of witnesses Sant Ram and Brij Mohan and its contents were read over and explained to Natha Ram, who admitted the same to be correct and thereafter he appended his signatures on the sale deed in presence of the witnesses.

¶52

Shri Sant Ram, who is the attesting witness, appeared as PW-5 and corroborated/supported the statement of PW-3, the scribe of the sale deed.

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Shri R.R.Bhardwaj appeared as PW-4 and proved on record that he identified Natha Ram before Sub Registrar at the time of registration of sale deed on 16.09.2000 by stating that the sale deed was presented before Sub Registrar in his presence and he identified Natha Ram, who executed the same in favour of the plaintiff on the basis of Power of Attorney executed in his favour by defendant No.4.

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Thus, it stands proved on record that defendant No.4 through PW-2 Natha Ram had executed the sale deed dated 16.09.2000 Ex. PW2/B in favour of the plaintiff.

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The plaintiff also placed on record the copy of the revocation of General Power of Attorney Ex.PX executed by Jamuna Devi

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subsequently on 28.09.2000 wherein it has been clearly mentioned that she had earlier executed a General Power of Attorney in favour of Natha Ram regarding management and disposal of her land comprised in Khasra No.1623/1108, measuring 7 biswas, situated at village Panjgain, Tehsil Sadar, District Bilaspur, H.P. which attorney infact was revoked vide Ex.PX thereby proving that Natha Ram at the relevant point of time when he executed the sale deed in favour of the plaintiff was infact the General Power of Attorney of defendant No.4 in relation to the management and disposal of land as mentioned aforesaid.

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In view of above discussion, this Court has no hesitation to conclude that on 07.09.2000, Natha Ram being General Power of Attorney of defendant No.4 was fully competent to execute the sale deed on behalf of defendant No.4 in favour of the plaintiff regarding the suit land which is part of Khasra No.1623/1108 and he on the basis of the attorney had sold the suit land to the plaintiff.

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Now adverting to the evidence led by the defendants, it would be noticed that one of the defendants Nikku Ram appeared as DW-1, but did not utter a single word with regard to Power of Attorney executed in favour of Natha Ram by Jamuna Devi.

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That apart, even Jamuna Devi, defendant No.4, who was alive when the evidence was adduced by the defendants before the learned trial Court, did not choose to step into the witness box to deny the execution of the Power of Attorney in favour of Natha Ram regarding the aforesaid land.

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Therefore, not only an adverse inference is required to be drawn against the defendants, but even otherwise in absence of any

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evidence of the defendants on record to prove anything contrary, the evidence of the plaintiff has to be relied upon, as the same has gone unrebutted as regards, the execution of the sale deed Ex.PW2/B by Natha Ram, being the General Power of Attorney of defendant No.4 thereby proving the due execution of the sale deed Ex.PW2/B.

¶64

Notably, as regards land measuring 7 biswas, it would be noticed that in the jambandi for the 1996-97 Ex.PX1/1, Jamuna Devi was recorded owner in possession of the entire land measuring 7 biswas, out of which 3 biswas has been sold to the plaintiff vide sale deed Ex.PW2/B. The defendants have not claimed any title over the suit land and their only plea is that they are in possession of the suit land along with entire land of Khasra No.1623/1108 and 1120 for the last 36 years and have raised construction over the same. Therefore, in absence of having raised any title over the suit land, the learned trial Court gravely erred in holding the plaintiff to be in joint possession of land comprised in Khasra No.1623/1108 and 1120 and particularly when the plaintiff had not laid any claim with respect to the land comprised in Khasra No.1120 and which land otherwise was not even the subject matter of the suit.

¶65

To be fair to the defendants, it would be noticed that defendants No.2 and 3 had raised the plea that they had purchased 3/11 shares measuring 3-0 bighas out of the land comprised in Khasra No.1623/1108 and 1120 vide registered sale deed dated 05.10.2000 from defendant No.4 which fact has not been denied by the plaintiff and the said findings of the learned first appellate Court have also not been challenged by the plaintiff.

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However, it would be noticed that the said sale deed was executed much later on 05.10.2000 in favour of defendants No.2 and 3, whereas, the sale deed vide which the plaintiff had purchased the suit land from Jamuna Devi already stood executed on 16.09.2000 and, therefore, at the time of execution of the subsequent sale deed Ex.DA, she i.e. Jamuna Devi was not having any right, title or interest qua the suit land and, obviously, therefore, no valid title could have been passed on to defendants No.2 and 3 and, therefore, they could not have been held to be co-sharers over this land along with the plaintiff on the basis of such sale deed Ex.DA. Therefore, it is not understood as to on what basis the learned trial Court held the plaintiff to be a joint owner in possession of the land comprised in Khasra No.1623/1108 and further joint owner in possession of Khasra No.1120 which otherwise did not form the subject matter of the suit as the suit was only confined to Khasra No.1623/1108 measuring 0-3 biswas.

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It is then vehemently argued by Shri Bhupender Gupta, Senior Advocate assisted by Ms.Rinki Kashmiri, Advocate that in absence of any tatima, the plaintiff could not have been held to be the owner of Khasra No. 1623/1108, more particularly, when his own case was to the effect that he was owner in possession of Khasra No. 1623/1108/1. Even this contention of the defendants is equally without merit for the simple reason that even though the defendants at the time of filing of the written statement had sought directions to the plaintiff to place on record the legible copy of tatima which he failed, but nonetheless, the defendants thereafter continued to contest the case without even raising a little finger. That apart, it was incumbent upon the defendants to prove

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as to which part of Khasra No.1623/1108 had they purchased because it has been duly proved on record that this Khasra Number in all measured 7 biswas and over which 4 biswas was occupied by road, whereas, only 3 biswas was vacant on the spot that too had been purchased by the plaintiff earlier to the defendants as has already been discussed above. 26. Defendant No.1 Nikku Ram while appearing as DW-1 has specifically stated that there was a road constructed over 4 biswas of land and only 3 biswas was lying vacant. To similar effect is the statement of defendant No.2 Surender Kumar, who happens to be the son of DW-1 Nikku Ram, who while appearing as DW-2 has categorically admitted that out of 7 biswas of land, only 3 biswas was ‘barani’ while 4 biswas was recorded as ‘gairmumkin sadak’.

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Therefore, on the basis of what has been noticed above, it appears that the defendants are un-necessarily trying to confuse the issue by firstly trying to claim that Khasra No.1623/1108 was purchased by them subsequently vide Ex.DA is a different land from the one which the plaintiff has described to be Khasra No.1623/1108/1.

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That apart, the defendants have un-necessarily dragged in Khasra No.1120 which otherwise is not the subject matter of the lis instituted by the plaintiff. Unfortunately, it is on account of judgment and decree passed by the learned trial Court that the entire complication has arisen, who failed to take note of the fact that Khasra No.1623/1108 itself measured 7 biswas out of which road exists over 4 biswas and the remaining 3 biswas had been sold to the plaintiff. The learned trial Court by un-necessarily involving Khasra No.1120 which even did not form the subject matter of the suit held the defendants co-sharers along with

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plaintiff little realizing that Jamuna Devi had no right, title or interest whatsoever left in Khasra No.1623/1108 and, therefore, could not have legally transferred the same in favour of the defendants.

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Once the decree for mandatory injunction came to be passed by the learned first appellate Court, then obviously, the plea of vacant possession has to follow. The plea sought to be raised in the grounds of appeal as also in the substantial questions of law is nothing, but an afterthought and a clever device to delay the execution of the decree.

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As regards, applicability of Article 65 of the Limitation Act, it would be noticed that the defendants had claimed themselves to be in possession of the land for the last 35-36 years and had virtually sought to establish their possession to be adverse, though specific plea to this effect was not raised. Therefore, in the given facts and circumstances, the provisions of Article 65 of the Limitation Act were correctly applied as it was incumbent upon the defendants to either prove their possession to be adverse or to prove a better title than the plaintiff. Having failed to do so, no exception can be taken to such findings. The questions of law are answered accordingly.

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Substantial Question of Law No.2.

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As regards the rejection of application filed by the defendants under Order 18 Rule 18 read with Order 26 Rule 9 and Section 151 CPC for inspection of the suit property or to appoint Local Commissioner to inspect the suit property, I really do not find any error much less illegality in the reasoning accorded by the learned first appellate Court while rejecting such application. As already discussed above, it was incumbent upon the defendants to have first convinced the Court that Jamuna Devi

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had some interest left in Khasra No.1623/1108 after having sold 3 biswas of land to the plaintiff prior in point of time vide sale deed Ex.PW2/B and, therefore, could have legally executed the sale deed Ex.DA dated 05.10.2000. Therefore, in such circumstances, there was no question of either inspecting the suit property or appointing a Local Commissioner in order to ascertain the dispute between the parties.

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In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.

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(Tarlok Singh Chauhan ) November 30, 2017. Judge. (krt)

Niku Ram v. Tulsi Ram

Case brief

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Niku Ram v. Tulsi Ram

Case brief

What is this about?

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