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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
Darsho Ram – Appellant
Versus
Nidhia and Another – Respondents
RSA No. 52 of 2008
Decided On : 31-08-2016
Adverse Possession - Land Dispute - [Indian Evidence Act, 1872, Section 114, Transfer of Property Act, 1882, Section 27] - The court discussed the concept of adverse possession and the burden of proof under the Indian Evidence Act, 1872, Section 114. The court also referred to the Transfer of Property Act, 1882, Section 27, in relation to the acquisition of title by adverse possession. The key legal provisions influenced the court's decision by establishing that the defendant could not prove adverse possession, leading to the dismissal of the appeal.
Fact of the Case:
The plaintiffs filed a suit against the defendant for permanent prohibitory and mandatory injunction, claiming that the defendant had encroached upon their land and raised construction without right. The defendant contested, claiming adverse possession.
Finding of the Court:
The court found that the defendant had encroached upon the plaintiffs' land and raised construction without right. The court dismissed the appeal, stating that the defendant could not prove adverse possession.
Issues: The main issue was whether the defendant was entitled to adverse possession and whether the plaintiffs were entitled to injunction and possession of the land.
Ratio Decidendi: The court held that the defendant could not prove adverse possession, and therefore, the plaintiffs were entitled to relief.
Final Decision: The court dismissed the appeal, ruling in favor of the plaintiffs.
Rajiv Sharma, J.
1. This Regular Second Appeal has been instituted against judgment and decree dated 22.11.2007 rendered by the learned District Judge, Chamba, District Chamba, Himachal Pradesh in Civil Appeal No. 31/2007.
2. "Key facts" necessary for the adjudication of the present appeal are that the respondents-plaintiffs (hereinafter referred to as 'plaintiffs' for convenience sake) filed a suit against the appellant-defendant (hereinafter referred to as 'defendant' for convenience sake) for permanent prohibitory and mandatory injunction restraining the defendant, his agents, servants and workmen from raising any construction over the suit land as detailed in the plaint, as per Jamabandi for the year 1997-98. According to the plaintiffs they were recorded in joint ownership and possession of the suit land with other co-sharers. Defendant was a complete stranger. On 10.8.2004, defendant started forcibly raising construction of Gharat on Khasra No. 30. He started collecting construction material with a view to grab the land of the plaintiffs to which he had no right. Defendant forcibly raised construction over the suit land and changed nature thereof. Thus, in these circumstances, the plaintiffs sought relief of permanent prohibitory injunction as co-sharers and a decree for mandatory injunction and if the defendant forcibly raised construction over the suit land during the pendency of the suit, to restore the suit land to its original position.
3. Suit was contested by the defendant. According to the defendant, he had already constructed Gharat over Khasra No. 595 prior to the filing of the suit. Construction over Khasra No. 595 was made in the year 1980-81.
4. Plaintiffs filed replication. Issues were framed by the learned trial Court on 11.4.2005. Additional issue No. 4(A) was framed on 6.7.2006. Learned Civil Judge (Senior Division) dismissed the suit on 31.8.2006. Plaintiffs fled an appeal before the District Judge, Chamba. He allowed the same on 22.11.2007. Hence, this Regular Second Appeal.
5. The present Regular Second Appeal was admitted on 6.8.2008, on the following substantial question of law:
“Whether in view of the fact that the Gharat was being run since the year 1980 and the construction had been made more than twenty four years before the filing of the suit, the plaintiff was entitled to a decree for mandatory injunction, possession as also permanent injunction from a portion of the land where the gharat was being run and the plaintiff could only be granted damages/compensation even if the appellant was not found to be in adverse possession of the property.”
6. Mr. Rajnish K. Lal, Advocate, on the basis of substantial question of law framed, has vehemently argued that the first appellate Court has not correctly appreciated oral as well as documentary evidence. He has also argued that the first appellate Court could not order the defendant to deliver the possession of the suit land to the plaintiffs.
7. Mr. R.K. Sharma, learned Senior Advocate has supported the judgment and decree passed by the first appellate Court.
8. I have heard the learned counsel for the parties and also gone through the record carefully.
9. PW-1 Nidhia Ram testified that he was owner-in-possession of the suit land with Sukhdev and defendant was stranger, who had started construction of Gharat over Khasra No. 1276/30. He had also got the spot inspected. Defendant had encroached upon ½ Biswa of land.
10. PW-2 Janam Singh has corroborated the statement of PW-1 Nidhia Ram. According to him, Nidhia and Sukhdev were co-owners-in-possession of the suit land, which was situate at a distance of 1 km from his house. Defendant did not own any land there. He had inspected the spot when plaintiff filed the suit. Suit land was demarcated in the presence of the parties. Defendant was found to have encroached 9 Biswansis of land, under his Gharat.
11. PW-4 Shamsdeen, Kanungo testified that application titled Nidhia vs. Darsho was entrusted to him. He wen
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