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2010 Supreme(HP) 1091
2011 (1) H.L.R 256
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Kuldip Singh, Judge.
Manohar Singh - Appellant.
Versus
Inder Ram - Respondent.
Inder Ram – Appellant
Versus –
Manohar Singh - Respondents
RSA No.320 of 2000 alongwith RSA No.333 of 2000
Decided on : 23.12.2010
For the appellant :Mr. Anand Sharma, Advocate, for appellant in RSA No. 320 and for respondent in RSA No.333 of 2000.
For the Respondent:Mr. Chaner Paul Sood, Advocate, for respondent in RSA No.320 of 2000 and for appellant in RSA No.333 of 2000.
The burden of proof for estoppel lies with the respondent, and mere silence or lack of objection does not necessarily imply acquiescence.
Headnote:
Land Dispute - Property Dispute - [Evidence Act, Section 115; Civil Procedure Code, Section 100; Limitation Act, Section 12] - The court analyzed the evidence and legal provisions related to adverse possession, estoppel, and acquiescence. The court emphasized that the burden of proof for estoppel lies with the respondent and highlighted the legal principles from various case laws to establish that mere silence or lack of objection does not necessarily imply acquiescence. The court also emphasized the importance of judicial records and the burden of rebutting factual recitals in a judgment.
Fact of the Case:
The appellant filed a suit for possession of land and demolition of illegal construction by the respondent. The respondent contested the suit on various grounds including adverse possession, estoppel, and limitation. The trial court decreed the suit, but the appellate court partially allowed the appeal. The appellant and respondent both appealed against the appellate court's decision.
Finding of the Court:
The court found in favor of the appellant, holding that the respondent had illegally raised construction on the appellant's land and was not entitled to adverse possession. The court also emphasized the importance of judicial records and upheld the trial court's findings on issues of estoppel and acquiescence.
Issues: The issues included ownership, entitlement to possession, maintainability of the suit, estoppel, limitation, and valuation of the suit. The trial court decreed the suit, but the appellate court partially allowed the appeal.
Ratio Decidendi: The court emphasized that the burden of proof for estoppel lies with the respondent and highlighted the legal principles from various case laws to establish that mere silence or lack of objection does not necessarily imply acquiescence. The court also upheld the trial court's findings on issues of estoppel and acquiescence.
Final Decision: The court allowed the appeal of the appellant and dismissed the appeal of the respondent. The judgment and decree of the trial court were restored, and the judgment of the appellate court was modified accordingly.
Kuldip Singh, Judge
This judgment shall dispose of RSA No.320 of 2000 and RSA No.333 of 2000 both having arisen from common judgment, decree dated 1.4.2000 passed by learned District Judge, Chamba in Civil Appeal No.6 of 1999. In this judgment the parties are referred from RSA No.320 of 2000.
2. The facts in brief are that appellant had filed a suit for possession of land comprised in khasra No.326/1 measuring 46 square yards and 4 square feet, khasra No.347/324/3, measuring 42 square yards and 4 square feet. The suit is also for possession of land comprised in khasra No.347/324/1, measuring 12 square yards and 2 square feet and land comprised in khasra No.347/324, measuring 9 square yards and 7 square feet by way of mandatory injunction by demolition of two latrines and portition of house illegally constructed over the said khasra numbers by respondent.
3. The further case of the appellant that he was co-sharer with his brother. The land was partitioned by the brothers and a report to this effect was made to Patwari Halqua on 30.11.1989 and mutation No.107 of partition was attested by Assistant Collector. On the basis of family partition, the appellant became owner in possession of land comprised in khasra No.347/324, khasra No.326, measuring 229 square yards and 3 square feet. The appellant filed an application to Tehsildar, Churah for demarcation of aforesaid land. The land was demarcated in March, 1994 and it was found that the land comprised in khasra No.326/1, measuring 46 square yards and 4 square feet and land measuring 42 square yards and 4 square feet out of khasra No.347/324/3 was found in possession of the respondent who took the possession in the year 1990.
4. In addition to aforesaid land, the respondent had also constructed two latrines over an area measuring 12 square yards and 2 square feet, comprised in khasra No.347/324/1. This construction was also made during the pendency of the application by respondent despite objection of appellant.
5. The respondent has extended the house towards the land of appellant. The respondent has asserted that he is raising construction on his own land. The respondent in this way has encroached 9 square yards and 7 square feet land of appellant out of khasra No.347/324 shown as khasra No.347/324/2. The appellant has prayed for mandatory injunction for removable of illegal construction raised by respondent and delivery of vacant possession to the appellant of the said land.
6. The suit was contested by respondent by filing written statement in which he took preliminary objections of maintainability, estoppel on account of act and conduct, limitation and lack of cause of action. On merits, the respondent has denied the family partition claimed by the appellant. The correctness of revenue entries showing the appellant as owner of khasra No.347/324 has been denied. It has been pleaded that house was raised over the suit property and also on khasra No.347/324 in the year 1964 and at that time no body objected including original owner Dass. The respondent has taken the plea of adverse possession on the suit land for the last more than 35 years. It has been pleaded that demarcation was not conducted properly. It has been pleaded that respondent has raised some fruit bearing trees on the suit land which are more than 15 years old. The latrines were constructed in the year 1984-85 to the knowledge of appellant, who did not raise any objection at the time of construction and he is thus estopped from his act and conduct. The pleas of limitation, lack of cause of action and valuation of the suit were also taken. The appellant has filed replication and reasserted the case set up by him in the plaint while denying the stand taken by the respondent..
7. On the pleadings of the parties, the following issues were framed:-1. Whether the plaintiff alongwith his brothers was joint owner in possession of the suit property as alleged? OPP 2. Whether the plaintiff is entitled to a decree f
