Himachal Pradesh High Court
Suresh Kumar (Deceased) Through His Lrs vs Kashmiro Devi on 29 May, 2025
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.208 of 2024
Date of Decision : 29.05.2025
Suresh Kumar (deceased) through his LRs.
...... Appellant
Versus
Kashmiro Devi
......Respondent
Coram:
The Hon'ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting?1 No
For the appellant : Mr. Ashwani Kumar Sharma, Advocate.
For the respondent : Mr. Y.P. Sood, Advocate.
Bipin Chander Negi, Judge (oral)
The appellant, by filing this appeal under Section 100 of the
Code of Civil Procedure (for short, 'the CPC'), has assailed the judgment and
decree dated 28.05.2024, passed by the learned District Judge, Hamirpur,
Himachal Pradesh, in Civil Appeal 47 of 2023. By the said judgment and
decree, lower Appellate Court has dismissed the judgment and decree dated
23.03.2023, passed by learned Civil Judge, Court No.4, Hamirpur, Himachal
Pradesh, in Civil Suit No.213 of 2013.
2. The material facts necessary for adjudication of the present
second appeal are as follows.
Whether reporters of Local Papers may be allowed to see the judgment?
3. The plaintiff-respondent filed a suit claiming to be a co-owner in
possession of the land comprised in Khata No. 51 min, Khatauni No. 93 min,
Khasra No. 456, measuring 145.38 sq. meters, situated at Up Mahal
Hamirpur, Mouja Bajuri, Tehsil and District Hamirpur, H.P., along with others,
as per the jamabandi for the year 2007-08. It was averred that the deceased
husband of the plaintiff had been running a Khokha/Kiosk over 5.38 sq.
meters of the said land (hereinafter referred to as the 'suit property'), where
the defendant-appellant had been engaged as a servant. The plaintiff alleged
that in August 1999, the defendant, taking advantage of the death of her
husband and her status as a rustic woman with five minor children to care
for, continued in illegal possession of the suit property without her consent.
Further, it was pleaded that in 2004, the kiosk was destroyed in a fire, and
though the plaintiff asked the defendant to remove his belongings, he refused
and instead filed a false application before the HPSEB and initiated frivolous
criminal proceedings against the plaintiff and her children.
4. The defendant also filed Civil Suit No. 14/2005, claiming
tenancy rights over the suit land and seeking protection from eviction. The
trial court dismissed the suit, but in Appeal No. 138 of 2012, the learned
Additional District Judge, Hamirpur, vide judgment and decree dated
18.06.2013, while rejecting the defendant's plea of tenancy, held that the
defendant could only be ejected in due course of law. The plaintiff contended
that the defendant's possession remained illegal and that the kiosk was again
gutted in June 2013 due to an electric short-circuit, rendering it uninhabitable.
Despite this, the defendant continued to occupy it by placing his articles
inside. The cause of action arose in the last week of September 2013 when
the defendant refused to vacate, prompting the plaintiff to seek a decree of
possession and permanent prohibitory injunction restraining the defendant
from asserting any rights over the suit property or interfering with it.
5. The defendant contested the suit by filing a written statement,
raising preliminary objections regarding maintainability, lack of cause of
action, estoppel, and the suit being barred under Section 9 of the CPC. On
merits, while admitting the plaintiff's co-ownership, he denied that the
plaintiff's husband had run the kiosk or that he was engaged as a servant.
Instead, he asserted that he was a tenant and accused the plaintiff of
fabricating the story to evict him illegally. He further alleged that the plaintiff
had caused him losses by disconnecting the electricity meter. The plaintiff, in
replication, reiterated the plaint's contents and denied the defendant's claims.
6. The trial court framed the following issues for determination on
24.07.2014, with an additional issue framed on 26.09.2022:
1. Whether the plaintiff is entitled for a decree of
possession, as alleged? OPP.
2. Whether the plaintiff is entitled for a decree of
permanent prohibitory injunction, as alleged? OPP.
3. Whether the suit is not maintainable, as prayed?
OPD.
4. Whether the plaintiff has cause of action to file the
present suit? OPD.
5. Whether the suit is bad for non-joinder of necessary
parties? OPD.
6. Whether this court has no jurisdiction to entertain
the present suit? OPD.
7. Whether the suit is barred under Section 9 of CPC,
as alleged? OPD.
7A. Whether the defendant is a tenant of the plaintiff in
the disputed kiosk/Khokha over the suit
property, as alleged? OPD.
8. Relief.
7. The parties were put to trial on the aforesaid issues and on its
appreciation of the evidence led therein, the learned trial court concluded that
the plaintiff had made out a case for grant of relief of possession and
permanent prohibitory injunction qua the property in question, and
accordingly proceeded to decree the suit of the plaintiff.
8. The defendant, feeling aggrieved by the judgment and decree
of the learned trial court, preferred the first appeal before the lower appellate
court, inter alia, on the grounds that the impugned judgment was contrary to
law and facts and that the trial court had failed to appreciate the true nature
of the controversy between the parties as well as the material evidence on
record in its proper perspective. It was contended that the trial court had
erred in not properly appreciating the oral and documentary evidence
adduced by the parties, leading to an arbitrary and illegal decision. A specific
ground was raised that the trial court had not framed proper issues in the
case, particularly with respect to the nature of the defendant's possession
over the suit property.
9. The appellant-defendant strenuously argued before the first
appellate court that the trial court had failed to consider that he was in
possession of the kiosk as a tenant and not as a servant, as wrongly held by
the trial court. It was further contended that the findings recorded by the trial
court were perverse and against the weight of evidence on record. The
appellant thus prayed before the first appellate court that the appeal be
allowed and the suit of the plaintiff be dismissed by setting aside the
judgment and decree of the trial court. However, the first appellate court,
after re-appreciating the evidence, dismissed the appeal and affirmed the
findings of the trial court, leading to the filing of the present second appeal.
10. Heard Counsels for the parties perused the impugned
judgments.
11. The controversy in the present case lies in a narrow compass
and the defendant's case suffers from a fatal infirmity. He had earlier
instituted Civil Suit No.14/2005 claiming tenancy over the same kiosk, which
was dismissed by the trial court. The first appellate court in Civil Appeal
No.138/2012 (judgment dated 18.06.2013, Exhibit P-2) categorically rejected
his tenancy claim despite relying on the same municipal records which were
again pressed in service by the Defendant. This finding having attained
finality, the principle of res judicata squarely applies, precluding the
defendant from re-agitating the same issue in the present proceedings. The
plaintiff's title stands undisputed, and the defendant has neither pleaded nor
proved any adverse possession.
12. It has been held in Indira vs. Arumugam and Anr. (1998) 1
SCC 614 that in a suit based on title when the title has been established, the
suit of the plaintiffs cannot be dismissed unless the plea of adverse
possession is established by the defendants.
13. Other than the aforesaid, it would be appropriate to refer to
case reported as Tilak Raj vs. Bhagat Ram and Anr. 1997 (1) Sim. LC 281,
wherein, it has been laid down that in the suit based on title where no plea of
adverse possession has been raised, the same can not be barred by
limitation on the ground that it was filed after more than 12 years from the
date of dispossession.
14. In view of the above discussion and the findings recorded by
the courts below, which are based on proper appreciation of evidence and
applicable law, no interference is warranted. The present appeal is
accordingly dismissed.
(Bipin Chander Negi)
May 29, 2025 (KS) Judge
