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2018 Supreme(HP) 2186
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sureshwar Thakur, J.
Smt. Kamla Devi - Appellants
Versus
Smt. Kiran - Respondent
RSA No. 482 of 2017
Decided On : 31-12-2018
For the Appellant :Mr. S.V. Sharma and Ms. Anu Tuli, Advocates.
For the Respondent:Mr. Hamender Singh Chandel, Advocate.
The judgment establishes the principle of ownership rights and jurisdiction for seeking eviction from municipal property, rejecting adverse possession claims.
Headnote:
Property Dispute - Ownership - Adverse Possession - Municipal Property - [Khata No.75 min, Khatauni No.286, Khasra No. 14, 15, and 16] - The court discussed the ownership of the property, adverse possession claims, and the jurisdiction for seeking eviction from municipal property. The judgment affirmed the findings of the lower courts regarding ownership and possession of the property.
Fact of the Case:
The plaintiff claimed ownership of a property and sought possession from the defendants. The defendants contested the suit on grounds of adverse possession, non-joinder of necessary parties, and jurisdiction for eviction.
Finding of the Court:
The trial court partly decreed the suit for possession, which was affirmed by the appellate court. The court rejected adverse possession claims and affirmed the plaintiff's ownership and right to seek eviction from the property.
Issues: Ownership, possession, adverse possession, non-joinder of necessary parties, jurisdiction for eviction.
Ratio Decidendi: The court affirmed the plaintiff's ownership and right to seek eviction from the property, rejecting adverse possession claims and jurisdictional objections raised by the defendants.
Final Decision: The appeal was dismissed, and the judgments and decrees of the lower courts were affirmed and maintained.
JUDGMENT :
Sureshwar Thakur, J.
The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiffs' suit for possession qua the suit premises, was, hence decreed.
2. Briefly stated the facts of the case are that the plaintiff set out a case that she is owner of the property comprised in Khata No.75 min, Khatauni No.286, Khasra No. 14, 15, and 16, measuring 1.59 sq. meter, situated at Mauza Bhagwati Nagar, Teh. and District Shimla, H.P. According to the plaintiff, the suit land/suit property was previously owned by Sh. Durga Ram s/o Sh. Ghavlia, who inherited it from Sh. Shonkia Ram. It was purchased by the plaintiff from Durga Ram under a sale deed No.1023 of 21.07.2008. Defendant No.1 Smt. Kamla Devi had previously filed a civil suit against Durga Ram claimant the suit property on the basis of a “Will” purportedly executed by Sh. Shonkia Ram. The suit was dismissed by the ld. Civil Judge (Jr. Divn.), Court no.4, Shimla, on 30.05.2008. As per the plaintiff, even the appeal preferred by defendant No.1 was dismissed by the learned First Appellate Court on 31.05.2011. The plaintiff avers that the land comprised in the afore kahsra No. consists of two parts of construction. On part, consists of a “Katcha Makaan” and the second part consists of “pucca Makan”. The defendant was kept as a care-taker by Sh. Shonkia Ram in one room and no “Will” was executed by him in her favour. The plaintiff further contends that as of now there are five rooms including a kitchen in the suit property. It is further contended that one room was constructed by defendant before filing the previous suit. Thus, there were three rooms in existence when the previous suit was filed by defendant No.1. Two rooms were constructed by Sh. Shonkia Ram and one room was unauthorisedly constructed by the defendant. It is averred that the defendants, taking advantage of the fact that the plaintiff is living out of Shimla for her job, constructed a two room structure behind the back of the plaintiff. The defendants have absolutely no right whatsoever to remain in possession of the suit property, and, they are liable to be evicted. The plaintiff further contends that the suit property which is in possession of the defendants, can easily fetch a rent more than Rs.3,000/- per month. The plaintiff claims that the defendants are liable to pay Rs.3,000/- per month from November, 2008 as use and occupation charges. The plaintiff also contends that the defendants are in habit of raising construction and taking advantage of her absence and therefore, they are liable to be restrained from raising any construction on the suit land.
3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections inter alia limitation, adverse possession, non joinder of necessary parties and estoppel. On merits, the defendants have denied that the plaintiff is the owner of the suit property. It is contendd that Durga Ram was not entitled to inherit the property of late Sh. Shonka Ram. The defendants further avers that alothough their civil suit was dismissed by lower Court however their appeal was partly allowed by ld. Appellate Court. It is contended that before the purported “Will” in favour of defendant No.1, defendant No.2 was inducted as tenant by late Sh. Shonkia Ram in one room and kitchen. It is contended that defendant No.1 constructed three pucca rooms in 1990 and no construction was raised after 1995. The defendants also claim ownership of the suit property by way of adverse possession. Alternatively, the defendants contend that they are in lawful possession of the suit property as tenant and since the suit property is situated in municipal area, therefore, they can only be evicted by the Rent Controller and not through a Civil Suit.
4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the plaintiff i
