Parkash Chand Vs Dfo-Cum-Collector and Others

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No.106/2022 Date of Decision: 05^th June, 2025. Prakash Chand .....Appellant. Versus DFO-cum-Collector and others …..Respondents. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?¹ For the Appellant : Mr. Sanjay Jaswal, Advocate. For the Respondents : Mr. Diwakar Dev Sharma, Additional Advocate General, for respondents No. 1 to 3/State. : Mr. Atharv Sharma, Advocate, for respondent No.4.

¶3

Bipin Chander Negi, Judge (oral).

¶4

The appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 14.01.2022 passed by the Learned Addl. District Judge (I), District Kangra, H.P. in Civil Appeal No. 13-D/XIII/2016 affirming the judgment and decree dated 31.10.2015 passed by the Learned Civil Judge (Jr. Division), Dharamshala, District Kangra, H.P. in Civil Suit No.289/09/2006.

¶5

The facts giving rise to the present second appeal are that the plaintiff-appellant filed a civil suit before the learned trial Court seeking a decree of permanent prohibitory injunction to restrain

¶6

1

¶7

Whether reporters of Local Papers may be allowed to see the judgment? YES

¶8

2

¶9

defendants No. 1 & 2 from executing the orders dated 22.05.2001 and 21.08.2001, passed in his absence, and from evicting him from the land comprising Khata No. 225 min, Khataure No. 424, Khasra No. 273 (old Khasra No. 782, 782/1, 782/2), measuring 0-00-16 hectares, situated in Mohal Mcleodganj, Mauza Dharamshala, District Kangra, H.P., as per Jamabandi for the year 1997-98 (hereinafter referred to as the "suit land"), as well as from demolishing his house existing thereon. The plaintiff also sought a mandatory injunction directing defendants No. 1 & 2 to restore the house consisting of 7 rooms and the suit land to its original position if demolished forcibly and further claimed ownership by way of adverse possession due to uninterrupted possession prior to 197778.

¶10

It was pleaded that the suit land is recorded in the ownership of defendant No. 1 (State of Himachal Pradesh) but in the plaintiff’s possession as "Tabe-Haqook-Bartan-Bartandaran." The plaintiff asserted that he constructed a house consisting of 6 rooms with one kitchen in 1977-78, which is reflected in revenue records as "Gair-Mumkin-Rihaishi-Makan-Ek-Manjla," and has been residing there for the last 45 years. He claimed to have purchased a "Khokha" along with material for Rs. 1,200/- on 27.06.1977 from one Roshan Lal, demolished it, and constructed his residential house, obtaining electricity connection thereafter. The plaintiff contended that defendants No. 1 & 2 never objected to his construction and

¶11

3

¶12

that he has been in continuous possession. He alleged that defendants intended to forcibly evict him under the garb of the order dated 21.08.2001 and that he had earlier filed a similar suit, which was withdrawn with liberty to file afresh.

¶13

The defendants No. 1 to 3 resisted the suit by filing a written statement raising preliminary objections regarding locus standi, maintainability, cause of action, jurisdiction, estoppel, res judicata, and limitation. On merits, they disputed the sufficiency of the suit land’s description, clarifying that the old Khasra No. of Khasra No. 273 was 682, not 782. They asserted that the suit land belongs to the State of Himachal Pradesh and that the plaintiff encroached upon it by constructing a "Khokha." They denied the possibility of any private sale, emphasizing that transfer of such land requires a registered document. During the settlement operations of 1977-78, the plaintiff was recorded as an encroacher in the Missal Haqiat, and eviction proceedings were initiated. They further stated that the plaintiff had also encroached upon Khasra Nos. 782/1 & 782/2, for which eviction orders under Section 5(1) of the H.P. Public Premises and Land (Eviction & Rent Recovery) Act, 1971, were passed on 22.05.2001, and a warrant for dispossession was issued on 21.10.2001, though execution was stalled due to the plaintiff’s legal maneuvers.

¶14

4

¶15

5. Additionally, eviction proceedings were initiated in

¶16

1990, resulting in an order dated 06.10.1990 by the Assistant Collector 1st Grade, Dharamshala, which was upheld in appeal by the Collector on 13.09.1995. The plaintiff did not challenge the Collector’s order but instead filed a civil suit. The defendants asserted that only one "Khokha" exists on the suit land, while the plaintiff’s house is on Khasra Nos. 782/1 & 782/2, from which he was ordered to be evicted. They also pleaded that the plaintiff’s earlier civil suits (No. 96/96, dismissed on 29.07.1997, and No. 254/89, dismissed on 11.06.1991) barred the present suit under res judicata.

¶17

The plaintiff filed a replication reiterating his claims and refuting the defendants’ contentions. Based on the pleadings, the learned trial Court framed the following issues on 02.09.2008 &

¶18

04.08.2009:

¶19

(1) Whether the plaintiff is entitled for a decree of permanent prohibitory injunction against the defendants, as prayed for? OPP

¶20

(2) Whether the plaintiff is entitled for mandatory injunction, as prayed for? OPP

¶21

(3) Whether the plaintiff has no locus standi to file the present suit? OPD 1 to 3

¶22

(4) Whether the suit is not maintainable? OPD 1 to 3

¶23

(5) Whether the plaintiff has no cause of action against defendants No. 1 to 3 as alleged? OPD 1 to 3

¶24

(6) Whether this Court has no jurisdiction to try the present suit? OPD 1 to 3

¶25

(7) Whether the plaintiff is estopped by his act and conduct and acquiescence from filing the present suit? OPD 1 to 3

¶26

(8) Whether the plaint is liable to be rejected under Order 7 Rule 3 CPC as the description of the suit land mentioned in the plaint is not sufficient, as alleged? OPD 1 to 3

¶27

(9) Whether the suit is barred by the principle of res judicata? OPD 1 to 3

¶28

(10) Whether the suit is barred by law of limitation? OPD 1 to 3 (10-A) Whether the plaintiff has become the owner of the suit land by the law of adverse possession, as alleged? OPP (11) Relief.

¶29

5

¶30

The plaintiff led evidence, examining himself (PW-1), his wife Uma Devi (PW-1), Krishan Mahadev (PW-2), Mohan Singh (PW3), Dharam Chand (PW-4), and Prem Thakur (PW-5), while defendants No. 1 to 3 relied solely on documentary evidence. The learned trial Court, after appreciating the evidence, dismissed the suit vide impugned judgment and decree, holding that the suit land could not have been transferred without a registered instrument under Section 54 of the Transfer of Property Act, rendering the plaintiff’s claim of purchase untenable. It further held that adverse possession can only be used as a defense, not as a sword, and thus the plaintiff’s claim of ownership by adverse possession was unsustainable. The Court also noted that the plaintiff had earlier filed Civil Suit No. 113/2001 challenging the eviction order, which was dismissed on 19.07.2004, and since he did not challenge that decision, it attained finality, making the present suit barred by res judicata. The trial Court decided issues No. 1, 2 & 10-A against the plaintiff and issues No. 3, 4, 5 & 9 in favor of defendants No. 1 to 3, dismissing the suit.

¶31

Aggrieved, the plaintiff filed a first appeal, contending that

¶32

the trial Court failed to appreciate his uninterrupted possession since 1977, ignored relevant documents, and the plaintiff seeks injunctive relief under Sections 37-39 of the Specific Relief Act to prevent his eviction from the suit land, claiming ownership through adverse possession since 1977. However, while the prayer clause mentions adverse possession, the plaint fails to plead the essential elements -

¶33

6

¶34

open, continuous, hostile possession with animus possidendi to the knowledge of the true owners. Mere assertion in the prayer without substantive pleadings is insufficient to establish adverse possession.

¶35

The plaintiff's case rests on his claim of having purchased a "Khokha" from Roshan Lal on 27.06.1977 for Rs. 1,200/- and subsequently constructing a residential house on the suit land (Khasra No. 273, old No. 682) in 1977-78, alleging continuous possession without objection from defendants No. 1 & 2. The petitioner himself did not step into the witness box, however, his wife, PW-1 Uma Devi, admitted in cross-examination that no registered sale deed was executed for this transaction, undermining the claim of lawful purchase, in addition the land in question was owned by defendant No1 to 3 therefore it could not have been sold by Roshan Lal in the first place. The plaintiff's assertion that the old Khasra Nos. of the suite land were 782, 782/1 & 782/2 is contradicted by his own document (Ex. PW-1/E), which confirms the old Khasra number of the suite land as 682. The defendants have established that the plaintiff encroached upon Khasra Nos. 782/1 & 782/2, for which eviction orders (Ex. PW-1/K) were passed on 22.05.2001, while proceedings for Khasra No. 273 were pending.

¶36

The plaintiff's plea of adverse possession fails on multiple grounds. First, his possession originated from an alleged purchase, not hostile assertion, as required under Ravinder Kaur Grewal & Others versus Manjit Kaur & Others, 2019 (8) SCC 729 . Second,

¶37

7

¶38

even if his possession since 1977 is assumed adverse, the suit filed on 10.01.2006 fell short of the 30-year period under Article 112 of the Limitation Act, 1963, as the defendants (State) had until 27.06.2007 to reclaim possession. Third, his encroacher status, recorded in the 1977-78 Missal Haqiat (Ex. PW-1/H), negates any animus possidendi. In conclusion, the plaintiff's claim of ownership via adverse possession is untenable, his possession being permissive initially and inadequately prolonged.

¶39

Regarding res judicata, the plaintiff's earlier suits (Civil Suit No. 96/96 dismissed for non-prosecution on 29.07.1997 and Civil Suit No. 254/89 returned for jurisdictional defect on 11.06.1991) were not decided on merits. While he withdrew Civil Suit No. 113/2001 with liberty to file afresh (per order dated 25.10.2005), this does not bar the present suit. The suit is not barred by res judicata but fails on merits.

¶40

The Plaintiffs have not been able to establish that the defendants threatened to forcibly dispossess them from suit land. The plaintiff’s witness, PW-2 Krishan Mahadev, did not depose on any such threat, nor did the plaintiff prove any overt act by the defendants indicating forcible eviction. Since, the plaintiff is an encroacher, the defendants have a legal right to initiate eviction proceedings, and no injunction can restrain such lawful action. The defendants' eviction proceedings are lawful, and no injunction lies against them.

¶41

8

¶42

In view of the above discussion and the sound findings recorded by the courts below, which are based on proper appreciation of evidence and applicable law, no interference is warranted with the impugned judgement and decree. The second appeal is accordingly dismissed.

¶43

(Bipin Chander Negi) Judge

¶44

5^th June, 2025 (Tarun/T.B)

Parkash Chand v. Dfo-Cum-Collector and Others

Case brief

What is this about?

What did the court decide?

Parkash Chand v. Dfo-Cum-Collector and Others

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

The Renukaji Dam Project and Another Vs Kalyan Singh and Others

Siri Ram Vs Rikhi Ram and Others

Sagar Dass Vs Piare Lal and Anr.

Bhagi Ram Vs State of Hp and Ors.

Pushpa Devi Vs Amit Kumar

NTPC Vs Baboo Ram