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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, J.
Ved Prakash and Ors. - Appellants
Vs.
Kamla Devi and Ors. - Respondent
RSA No. 628 of 2008
Decided On : 06-08-2021
Civil Procedure Code,1908 - Order 41, Rule 27 read with Section 151 - Suit for declaration, injunction - Constructed wooden khokha on a vacant portion of the suit land - Plaintiffs as pleaded before the lower court is had previously instituted Civil Suit for declaration - Suit land was jointly owned and possessed by parties - Said Civil Suit and it was held become owner of suit land by way of adverse possession - Application for correction of entries in revenue record in accordance with said judgment and decree - Plaintiffs met defendant when defendant No. 2 told the plaintiff No. 1 that defendant No. 1 had purchased share of suit land and defendant No. 2 asked plaintiff No. 1 to get the suit land partitioned - But plaintiff No. 1 told defendant No. 2 that had no title in suit land as per aforesaid judgment and decree therefore, the sale deeds executed - Plaintiff No. 1 obtained copies of sale deed. During the intervening night defendant Nos. 1 and 2 behind the back of the plaintiffs constructed wooden khokha on a vacant portion of the suit land – Held, Specific findings of learned courts below, as reproduced above, would go to show that findings of adverse possession have been recorded in favour of defendant No. 1 to the exclusion of the plaintiff alone and not defendant No. 2 - Moot question is whether respondents are bona fide purchaser on basis of the sale deed - revenue record consistently reflected be owners and the appellants have miserably failed to convince this Court as to what further inquiries the respondents were required to undertake before purchasing property, which could even remotely indicate alone who was the owner of the land - Judgments rendered by the learned Courts below are neither contrary to evidence available on record nor perverse - It is settled law that a judgment can be said to be perverse if the conclusions arrived at by learned Courts below are contrary in evidence on record, or if Court's entire approach with respect to dealing with evidence or pleadings is found to be patently illegal, leading to miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of case - Perverse finding is one which is based on no evidence or one that no reasonable person would have arrived – Appeal dismissed.
JUDGMENT :
Tarlok Singh Chauhan, J.
1. The Plaintiffs are the appellants, who after having lost before both the Courts below, have filed the instant Regular Second Appeal. (Parties hereinafter shall be referred to as the 'Plaintiffs' and 'defendants').
2. The plaintiffs instituted a suit for declaration, injunction and in alternative for possession against the defendants before the learned Trial Court on the ground that the sale deeds dated 07.07.1995 and 28.12.1995 in favour of defendant No. 1, Smt. Kamla Devi are wrong, null and void and the defendant Nos. 1 and 2 be restrained from encroaching upon the land comprised in Khewat/Khatauni No. 179/272 Khasra No. 926 and 927 measuring 345.95 sq. meters, situated in Muhal Tarna, Mandi town, Tehsil Sadar, District Mandi, H.P. (hereinafter referred to as the 'suit land').
3. The case of the plaintiffs as pleaded before the lower court is that Amar Chand had previously instituted Civil Suit No. 14 of 1990 for declaration against Girja Nand, Dhananjai and Smt. Titli Devi to the effect that the suit land was jointly owned and possessed by the parties. Said Civil Suit No. 14 of 1990 was dismissed on 13.12.1991 and it was held that Girja Nand had become owner of the suit land by way of adverse possession. After decision of the aforesaid Civil Suit No. 14/1990, Girja Nand moved an application for correction of entries in the revenue record in accordance with the said judgment and decree but in the meantime, Girja Nand died on 12.02.1994, the plaintiffs and proforma defendants are legal heirs of late Girja Nand and they have inherited the suit land of Girja Nand and thus they are owners in possession of the same. The plaintiffs met defendant No. 2 on 19.04.1996 at Sarkaghat when defendant No. 2 told the plaintiff No. 1 that the defendant No. 1 had purchased share of Dhananjai of the suit land and the defendant No. 2 asked the plaintiff No. 1 to get the suit land partitioned. But the plaintiff No. 1 told defendant No. 2 that Dhananjai had no title in the suit land as per aforesaid judgment and decree dated 13.12.1991, therefore, the sale deeds executed by Dhananjai in favour of defendant No. 1 are illegal, null and void. Thereafter the plaintiff No. 1 obtained copies of sale deed. During the intervening night of 11-12 May, 1996, the defendant Nos. 1 and 2 behind the back of the plaintiffs constructed wooden khokha on a vacant portion of the suit land. Thereafter the plaintiff No. 1 came from Sarkaghat and he asked the labourers of the defendants to stop construction work on the suit land but they did not stop the same. Hence, the plaintiffs had to institute the suit against the defendants.
4. The defendant Nos. 1 and 2 contested the suit. They asserted in their written statement that the entries in the revenue record showing the defendant No. 1 to be owner in possession of the suit land are correct. Said judgment and decree dated 13.12.1991 were obtained by Girja Nand by suppressing the true facts and as such the same is not executable being time barred. The defendant no. 1 is bonafide purchaser of the suit land for a consideration. The defendant No. 1 is in physical possession of the suit land after purchasing the same from co-owner Dhananjai. The defendant No. 1 had constructed a pacca RCC House of four rooms, prior to the institution of the suit to the knowledge of the plaintiffs. The contesting defendants also assailed the suit on preliminary objections such as estoppel, limitation and valuation of the suit. In nutshell the contesting defendants refuted the case of the plaintiffs and they sought dismissal of the same.
5. The plaintiffs filed replication whereby they again reiterated and reasserted their own case and refuted the case of the defendants as pleaded in the written statement.
6. The learned Trial Court on the basis of the pleadings of the parties had framed the following issues:-
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