Himachal Pradesh High Court
Nota Ram & Others vs State Of H.P. & Others on 2 May, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 63 of 2013
.
Date of decision 2.5.2024.
Nota Ram & others ...Appellants
Versus
State of H.P. & others ...Respondents
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1
For the appellants :
For the respondents :
to Mr. Vinod Thakur, Advocate.
Mr. Dalip K. Sharma, Addl. A.G.,
for respondents No. 1 and 2.
Mr. Jai Dev Thakur, Advocate, for
respondent No.3.
Satyen Vaidya, Judge (Oral):
By way of instant Regular Second Appeal under
Section 100 of the Code of Civil Procedure (for short 'the
Code'), appellants have assailed judgment and decree dated
29.2.2012, passed by learned Additional District Judge,
Mandi, District Mandi, H.P. in Civil Appeal No. 31 of 2011,
whereby the judgment and decree dated 1.1.2011, passed by
learned Civil Judge (Senior Division), Jogindernagar, District
Mandi, H.P. in Civil Suit No. 239 of 2008 has been affirmed.
Whether reporters of Local Papers may be allowed to see the judgment?
2. Appellants herein were the original plaintiffs.
Original suit No. 239 of 2008 was filed before the learned
.
trial Court for the relief of possession in respect of land
comprised in khewat No. 48, khatoni No. 68, khasra Nos.
320, 321 and 322, total measuring 11-14 biswas, situated in
Mauza Sieh, Tehsil Padhar, District Mandi, H.P. The suit
was filed on the basis of title. Plaintiffs had alleged that their
great grand-father had put the defendants No. 1 and 2 in
permissive possession of the suit land with a purpose to
facilitate the construction of the road by the PWD
Department. It was further alleged that the suit land was
required by them and despite their repeated requests to
defendant No. 1 and 2, the possession was not being handed
over back to the plaintiffs, hence the suit.
3. Before filing the suit, plaintiffs issued notice to the
defendants but again could not succeed in getting the
possession of the suit land back.
4. Defendants No. 1 and 2 raised the defence that
the suit land had been handed over to the predecessor of
defendants No. 1 and 2 during the British Era and the
predecessor of the plaintiffs might have been paid
compensation for the same. It was also alleged that the
plaintiffs had lost the right to claim possession by the efflux
of time. As per defendants No. 1 and 2, they had further
.
handed over the possession to defendant No.3, who being a
Trade Union was running its office therein after renovation.
5. Defendant No.3 in its written statement pleaded
that they were handed over the possession for the purpose of
office in the month of September, 2004 by defendants No. 1
and 2 in presence of the then Irrigation & Public Health
Minister. Thereafter, defendant No.3 had constructed a room
attached to the old structure besides renovation of the old
structure.
6. On the basis of pleadings of the parties, the
learned trial Court framed the following issues:-
"1. Whether the great grant father of plaintiffs
has handed over the vacant possession of the
suit premises to the defendants on the basis
of permissive basis, as alleged? OPP
2. Whether the plaintiffs are now entitled to get
back the possession of the land? OPD
3. Whether the suit of the plaintiffs is not
maintainable in the present form? OPD
4. Whether the suit of the plaintiff is barred by
limitation? OPD
5. Whether the plaintiffs have no cause of action
to file the suit?
.
6. Whether the plaintiffs have no locus standi to
file the present suit?
7. Whether this Court has no jurisdiction to try
and entertain the suit? OPD
8. Whether the plaintiffs are estopped by their
own acts and conduct to file the present suit?
OPD
9. r Relief."
Issue No. 1 and 2 were decided in affirmative and
remaining issues were decided in negative. The suit of the
plaintiffs was partly decreed. A decree of possession in
respect of khasra No. 321 was passed in favour of the
plaintiffs.
7. Aggrieved against the judgment and decree passed
by the learned trial Court, the plaintiffs filed first appeal
under Section 96 of the Code. Learned First Appellate Court
vide impugned judgment and decree affirmed the findings
returned by the learned trial Court, hence this appeal.
8. The appeal was admitted for hearing on 13.6.2013
on the following substantial question of law:-
"Whether the findings of the Courts below are result
of complete mis-reading, mis-interpretation of the
evidence and material placed on record and against
the settled position of law?"
.
9. I have heard the learned counsel for the parties
and have also gone through the record carefully.
10. Noticeably, both the sides have relied upon the
same jamabandi. Plaintiffs have proved it as Ext. PW-1/A,
whereas, the defendants have exhibited the same as Ext. DA.
The jamabandi pertains to the year 2003-04. The suit was
filed in the year 2008. Therefore, the jamabandi Ext. PW-1/A
or DA for the year 2003-04 seems to be the last jamabandi
prepared by the Revenue Department before filing of the suit.
This inference can be drawn from the conduct of defendants
No. 1 and 2, who being the custodian of the record had not
produced any other jamabandi. That being so, the
defendants could not claim anything over and above the
entries recorded in the aforesaid jamabandi. Evidently, the
defendants have not even made any challenge to such
entries. As per the jamabandi relied upon by both the sides
the suit land is recorded in ownership of plaintiffs and in
possession of defendant No.1.
11. It is trite law that a title holder can claim
possession on immoveable property from the possessor at
any time and such right can be defeated only by proof of a
better title by the possessors. In the instant case, the plea
.
raised by defendants No. 1 and 2 that the predecessor-in-
interest of the plaintiffs might have received some
compensation was without any basis. The fact of the matter
remains that the title of the plaintiffs was proved and the
defendants were held to be in permissive possession,
concurrently by both the learned courts.
12. It was in light of the aforesaid findings that both
the courts have granted the decree of possession to the
plaintiffs in respect of khasra No. 321. As regards khasra
No. 320, both the courts have returned the findings of fact
that a road has been constructed on the said land. Such
finding is otherwise warranted by the entries recorded in
jamabandi Ext. PW-1/A or Ext. DA. It has further been
concurrently held that the road was proved to have been
constructed in the year 1949-50 and since it was in the
knowledge of predecessor-in-interest of the plaintiffs that
road was constructed upon khasra No. 320, the principle of
acquiescence was applicable. I have found no reason to differ
from the findings recorded in that behalf. Such findings
cannot be said to be illegal or perverse.
13. Learned counsel for the plaintiffs has urged that
in order to clarify the position with respect to the actual user
.
of khasra No. 320, he had moved an application for
additional evidence before the learned First Appellate Court,
which was wrongly dismissed. I have pursed the record and
have no reason to differ from the findings returned by the
learned First Appellate Court, while dismissing the
application. r
14. Khasra No. 322 has been recorded as "Gair
Mumkin Sehan, which means that the land is vacant.
Learned trial Court has denied the relief in respect of khasra
No. 322 without recording any reason. The learned First
Appellate Court has recorded the findings that since it is
constructed portion, the principle of acquiescence will apply
against the plaintiffs. The findings to this effect are clearly
perverse. "Sehan" cannot be construed to be constructed
portion. Thus, the findings to this effect are liable to be set
aside as these are not based upon the material proved on
record. The substantial question of law is accordingly
decided.
15. In result, the appeal is partly accepted. The
judgment and decree dated 29.2.2012, passed by the learned
Additional District Judge, Mandi, District Mandi, H.P. in Civil
Appeal No. 31 of 2011, whereby the judgment and decree
.
dated 1.1.2011, passed by the learned Civil Judge (Senior
Division), Jogindernagar, District Mandi, H.P. in Civil Suit
No. 239 of 2008 has been affirmed is modified to the extent
that a decree of possession is passed in favour of the
plaintiffs and against the defendants in respect of land
comprised in khewat No. 48, khatoni No. 68, khasra Nos.
321 and 322 as per jamabandi for the year 2003-04 (Ext.
PW-1/A).
16. Decree sheet be prepared accordingly.
17. No order as to costs.
18. Pending applications, if any, also stand disposed of.
19. Records be sent back forthwith.
(Satyen Vaidya)
2nd May, 2024. Judge
(kck)
