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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Dharam Chand Chaudhary, J.
Sh. Sonam Angroop - Appellant
Versus
Sh. Khub Ram and others - Respondents
RSA No. 356 of 2004
Decided on: 07-12-2015
Adverse Possession - Land Dispute - [Indian Evidence Act, 1872, Section 114, Transfer of Property Act, 1882, Section 27, Limitation Act, 1963, Section 27] - The court discussed the legal provisions related to adverse possession, including the requirement of open, hostile, and continuous possession, and the burden of proof on the party claiming adverse possession. The court also highlighted the need for concrete proof of occupation and the importance of proving the nature and duration of adverse possession. The judgment affirmed the decree of possession in favor of the plaintiffs based on the defendant's failure to prove adverse possession.
Fact of the Case:
The dispute involved a piece of land granted in 'Nautor' to a deceased individual, inherited by his legal heirs, and later sold to the plaintiffs. The defendant allegedly interfered with the land, leading to a lawsuit for permanent prohibitory injunction and possession.
Finding of the Court:
The court found that the plaintiffs were in possession of the land and had been forcibly dispossessed by the defendant. The court rejected the defendant's claim of adverse possession and decreed possession in favor of the plaintiffs.
Issues: The issues included the entitlement of the plaintiffs to injunction and possession, the possession of the suit land, the bar of limitation, estoppel, locus standi, and valuation of the suit for jurisdiction.
Ratio Decidendi: The court held that the defendant failed to prove adverse possession as required by law, and the evidence supported the plaintiffs' possession of the land. The court emphasized the need for concrete proof of open, hostile, and continuous possession to establish adverse possession.
Final Decision: The judgment and decree under challenge were affirmed, and the appeal was dismissed with no orders as to costs.
Dharam Chand Chaudhary, J.
Aggrieved by the judgment and decree dated 5.5.2004 passed by learned District Judge, Kullu in Civil Appeal No. 17/2004, the appellant (hereinafter referred to as the ‘defendant’) has filed the present appeal for quashing and setting aside the same.
2. The bone of contention in the present lis is a piece of land measuring 0-00-96 hectares bearing Khasra No. 1216, Khewat No. 115, Khatauni No. 146 situated in Phati Bari, Kothi Baragarh, Tehsil Manali, District Kullu as recorded in Misal Hakiyat for the year 2000-01 Ext. P-2/DW-1/D. The suit land was granted in ‘Nautor’ to one Sh. Ram Nath, as is apparent from the order of mutation dated 17.03.1985 Ext. DW-1/A. He died intastate and the suit land as such was inherited by his legal heirs Smt. Mohni Devi and Smt. Maya Devi, daughters, whereas Sh. Bhope Chand, son in equal shares. The mutation of inheritance No. 1128 was attested and sanctioned in their names, as is apparent from entries below remarks column in the Jamabandi for the year 1992-93, Ext. DW-1/E. The suit land was sold by aforesaid Mohni Devi, Maya Devi and Bhope Chand to the respondents (hereinafter referred to as the ‘plaintiffs’). The plaintiffs came to be recorded as owners in possession of the suit land, as is apparent from the entries in the Misal Hakiyat for the year 2000-01 Ext. P- 2/DW-1/D. Later on the defendant allegedly started causing interference in the suit land. He threatened the plaintiffs to take possession of the suit land forcibly and raise some construction thereon. They requested him to desist from such unlawful activities but of no avail, hence the suit for the decree of permanent prohibitory injunction restraining thereby the defendant from causing any interference over the suit land or taking possession thereof forcibly. In the alternative, a decree for possession of the suit land in the event of defendant succeeds in dispossessing the plaintiffs therefrom during the pendency of the suit, was also sought.
3. The defendant in the written statement has raised preliminary objections such as the suit is not maintainable, barred by limitation, plaintiffs are estopped from filing the suit, they have no locus standi to file and maintain the same and that they have not approached the Court with clean hands, hence not entitled to the relief of injunction discretionary in nature. Also that the suit is not properly valued for the purpose of jurisdiction. The suit land has not been properly identified and that the defendant being in open, peaceful and continuous possession of the suit land since 1952 has acquired title by way of adverse possession.
4. On merits, it is reiterated that the suit land has not been properly identified. It is denied that the plaintiffs are owners in possession thereof, however, it is admitted that the suit land though was granted as ‘Nautor’ to one Ram Nath, however, neither said Sh. Ram Nath nor his legal heirs ever occupied the same nor were competent to alienate or dispose of the same to any third person. It is also submitted that neither deceased Ram Nath nor his legal heirs and for that matter even the present plaintiffs had never cultivated the suit land. The same is stated to be in possession of the defendant.
5. On the pleadings of the parties learned trial Court has framed the following issues:-
1. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed for? OPP.
2. Whether the plaintiffs are enttield for the alternative relief of mandatory injunction as prayed for? OPP
3. Whether the plaintiffs are not in possession of the suit land, if so, its effect? OPD.
4. Whether the suit is time bar as alleged? OPD.
5. Whether the plaintiffs are estopped to file the present suit by their act, conduct and deed as alleged? OPD.
6. Whether the plaintiffs have no locus-standi to file the present suit and the suit is not maintainable as alleged? OPD.
7. Whether the suit is not properly valued for the purposes of court fe
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