Uttarakhand High Court
Jagir Singh And Others ... vs Dara Singh And Others on 7 June, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 52 of 2020
Jagir Singh and others .....Appellants.
Versus
Dara Singh and others .... Respondents
Present :
Mr. Atul Kumar Bansal, Advocate, for the appellant.
JUDGEMENT
Hon'ble Sharad Kumar Sharma, J.
This is a plaintiffs' Second Appeal, arising out of
the concurrent judgements rendered by the Court of Civil
Judge (J.D.), Kashipur, District Udham Singh Nagar, in Suit
No. 183 of 2009, Jagir Singh and others Vs. Dara Singh and
others. The Suit, in question, as preferred by the
plaintiffs/appellants on 2nd September, 2009, the plaintiffs
have sought a degree of the following nature :-
"8.;g fd oknhx.k U;k;ky; Jheku~ th ls izkFkhZ gSA
v- ;g fd nkok oknhx.k okLrs LokfeRo dh ?kks'k.kk
ckcr vkcknh oknhx.k rQlhy tSy egn~nh iwjc [ksr }kjk flag]
d`iky flag vkfn if"pe [ksr nkjk flag] d`iky flag vkfn mRrj [ksr
nkjk flag] d`iky flag vkfn nf{k.k [kMatk&jkLrk okd xzke
dpukyxkth rg0 dk"khiqj fo:) izfr x.k fMdzh Qjek;k tkdj
oknhx.k dks mldk Lokeh ?kksf'kr fd;kA
c- [kpkZ eqdnek o nhxj nknjlh ykHkdkjh tks oknhx.k ls
muds gd esa lkftn QjekbZ tk;sA"
2. In fact, if the modulation of the reliefs sought by
way of a decree of declaration of title, over the disputed land,
before the Court below is taken into consideration, that was
exclusively for a decree of declaration of the plaintiffs, as to
be the exclusive owner of the disputed property and the
declaration was also sought in that regard.
3. The Suit was contested by the defendants by filing
their written statement being paper No.25-Ka, and after the
contest being put in, the learned Trial Court on the basis of
the pleadings exchanged after the replication paper No. 26
Kha, between the parties, has framed the following issues :
"1- D;k oknhx.k iz"uxr fjgk;"kh vkcknh dk ekfyd o
dkfct \
2- D;k oknhx.k iz"uxr vkjkth ds ekfyd /kksf'kr gksus ds
vf/kdkjh gS \
3- D;k oknh }kjk okn dk ewY;kadu de fd;k x;k gS rFkk
iz)Rr U;k;"kqDy vi;kZIr vnk fd;k x;k gS \
4- D;k bl U;k;ky; dks okn lquus dk {ks=kf/kdkj izkIr gS \
5- vuqrks'k] ;fn dksbZ gks] ftls ikus ds oknhx.k vf/kdkjh gSa \"
4. The learned Trial Court while considering the
rival contentions and particularly, while deciding issue No.1,
had made a very categorical observation, that the declaration,
which was sought by the plaintiffs / appellants, was in
relation to property being Khasra No. 91 having an area
0.093, hectares situated in village Kachalnal Gaji, Tehsil
Kashpur, District Udham Singh Nagar.
5. In support of his contention, the plaintiffs had
placed on record and relied on the Khatoni entries, paper No.
32 Ka/14, in relation to land lying in Khasra No.91, but
however, the said document, which was placed on record in
support of his contention for declaration of his right in
relation to Khasra No. 91, in fact, the document relied by the
plaintiffs was actually in relation to Khasra No. 166 and the
property in dispute, i.e. khasra No. 91, it had never
constituted as to be the part of khatuni paper No. 32 Ka/14.
6. On the other hand, the defendants in support of
their case, had placed on record paper No. 65-Ga, in which,
the property was described therein was in relation to the
different property altogether, which was other than what was
the relief sought in the Suit, in question, i.e. it was in relation
to the land against which they were recorded as bhumidhar.
7. It needs no judicial reference that a long standing
possession, may not itself lead to an inference, for declaration
of a right or title over the property by virtue of a claim based
on an adverse possession, and that has been consistent stand,
which has been laid down by the Courts of Law, including
the Hon'ble Apex Court and the various other High Courts
of the Country, that merely an adverse possession is
exclusively only for the purposes of retaining the possession
by getting a degree of permanent injunction, but adverse
possession in itself cannot be utilised as a weapon to declare
himself or herself, as to be an owner of the property merely
because of the long standing possession.
8. Owing to the relief clause, which has been
extracted above, this Court is of the view that in the absence
of there being any modulation of a degree, to the effect of
grant of decree of permanent injunction, the Suit itself for
declaration of rights and title over the property, on the basis
of a claim on adverse possession, would not be sustainable,
and hence, the observations, which had been concurrently
made by the Courts, particularly, while referring to the
judgements relied while recording its finding on issue No. 2,
and particularly, the finding which has been recorded in para
12 of the Trial Court judgment, which stood affirmed by the
Appellate Court too, this Court is of the view, that on a close
scrutiny of the impugned judgements under challenge, I am
of view that in the absence of there being any relief for the
grant of degree of permanent injunction, a simplicitor suit for
declaration of title and ownership based on a claim of long
standing adverse possession would not be sustainable, and
hence, the judgements under challenge in the present Second
Appeal are concluded by a concurrent finding of facts.
Hence, the Second Appeal lacks merit and the same is
accordingly dismissed.
9. In order to sustain the possession, the learned
counsel for the appellants attempted to venture to address the
Court that the finding of possession should be construed in
his favour by the Second Appellate Court. But, this Court at
this stage is apprehensive to accept, the argument extended
by the learned counsel for the appellants on the ground, that
it was not the basic foundation of the Second Appeal, or in
the Suit itself instituted by the plaintiffs/ appellants. The
Second Appellate Court while exercising its power under
Section 100 of the CPC, cannot widen the scope of
possession, as observed in the impugned order to be
sustained in the eyes of law, because it would amount to
asking the Second Appellate Court, which has got a very
limited jurisdiction in the light of the spirit of the provisions
contained under Section 100 of the CPC, its scope cannot be
widened to record any finding qua the effect of adverse
possession and its consequences which may flow.
10. There has been a consistent stand taken by the
Hon'ble Apex Court in a judgement reported in 2013 (2) UD
381, Mohd. Aslam and other Vs. District U.P. Sanchalak
Consolidation and others, and a judgment reported in 2012
(115) RD 349, State of Haryana Vs. Mukesh Kumar and
others, wherein, the Hon'ble Apex Court has consistently
observed that merely the fact of adverse possession, has got
no right to file a suit for declaration, to be declared as to be
the owner of the property. In that eventuality too, the Second
Appeal does not engage consideration to answer any of the
substantial question of law, which has been framed by the
appellants in the Appeal, in question.
11. Hence, the Second Appeal lacks merit and the
same is accordingly dismissed.
(Sharad Kumar Sharma, J.)
07.06.2022
Shiv
