The defendant's failure to establish title in the suit property and the rejection of the plea of adverse possession based on mutually destructive plea of ownership and possession.

Sanjay Karol, J. (oral)

This is the defendant’s regular second appeal filed under Section 100 of the Code of Civil Procedure. Plaintiff’s Civil Suit No.19/1 of 1997, titled as Asha Ram Vs. Walayati, stands decreed by Sub Judge, Nalagarh, District Solan, H.P., in terms of judgment and decree dated 28.4.2000. Findings of fact, judgment and decree stands affirmed by Additional District Judge, Solan, District Solan camp Court at Nalagarh, in terms of judgment and decree dated 16.5.2001 passed in Civil Appeal No.39-NL/13 of 2000, titled as Walayati Vs. Shri Asha Ram, filed by the defendant. Thus, present appeal arises out of concurrent findings of fact.

2. The appeal was admitted on 28.8.2001, on the following substantial questions of law:-

“1. Whether both the courts below have wrongly ignored Ext. DW-5/A, copy of Naksha Jai Junior Engineer HPSEB according to which Electricity connection has been fixed in the accommodation in question over the suit land in the name of Shayam Lal son of the appellant?

2. Whether the presumption of truth attached to the entries in the revenue record Ext. P-1 has amply been rebutted by the statement of DWs.1 to 5?

3. Whether the transaction of oral sale with respect to suit land as set up by the appellant could be considered to find out possession and the evidence on this account has wrongly been ignored by both the courts below?

4. Whether the provisions of Section 92 of the Indian Evidence Act for dis-believing the evidence of the appellant has wrongly been invoked in the present case by the learned Sub Judge.”

3. Having heard learned counsel for the parties, I am of the considered view that in fact no substantial question of law arises for consideration. Concurrent findings of fact so recorded by the Courts below cannot be said to be based on incorrect appreciation of material so placed on record by the parties, more so, revenue record Ex.P-1. It cannot be said that mandatory provisions of the Indian Evidence Act stand wrongly applied. It also cannot be said that document Ex.PW5/A stands ignored.

4. Asha Ram, plaintiff before the trial Court, filed a suit for permanent prohibitory injunction, claiming joined issue by taking a specific plea that he had purchased two Bishwas of land from predecessors-in-interest of the plaintiff. In the alternative, he pleaded adverse possession.

5. Based on respective pleadings of the parties, trial Court framed the following issues:-

“1. Whether the plaintiff is entitled for the relief of injunction? … OPP

2. Whether the defendant is owner in possession of 672 Sq. ft. area of the suit land by way of purchase as alleged? ... OPD

3. Whether in the alternative the defendant has become owner of 672 Sq. ft. area of suit land by way of adverse possession, as alleged? … OPD

4. Whether this suit is not maintainable? … OPD

5. Whether the plaintiff has no cause of action and locus standi to file the present suit? … OPD

6. Relief.”

6. Plaintiff’s suit is decreed in the following terms:-

“17. In view of the above, the suit of the plaintiff is decreed for permanent prohibitory injunction restraining the defendant from interfering with the land of the plaintiff comprised in Khewat/Khatauni No.9/9, measuring 2 Kanals 14 Marlas bearing Khasra No.162 situated in village Ranguwal, Pargana & Tehsil Nalagarh, District Solan (H.P.) File after its due completion be consigned to record room.”

7. Trial Court held the defendant not to have perfected his title on the plea of adverse possession. Such findings of fact and judgment stand affirmed by the lower appellate Court.

8. It is a settled proposition of law that party cannot take mutually destructive plea of ownership and possession. Since defendant failed to prove/establish his title in the suit property, as a purchaser through the predecessors-in-interest of the plaintiff, Court below, in my considered view, rightly rejected the plea of adverse possession. Defendant failed to establish the date from which such possession in th