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2016 Supreme(HP) 2593
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sandeep Sharma, J.
MOHINDER PAL — Appellant
Vs.
BALDEV SINGH — Respondent
Regular Second Appeal No. 554 of 2006
Decided On : 27-12-2016
Advocate Appeared:
For the Appellant : Mr. Sanjeev Kuthiala.
For the Respondents: Mr. N.K. Thakur, Ms. Jamuna.
The main legal point established in the judgment is the importance of presenting evidence to support claims of possession in property disputes. The judgment also emphasizes the court's discretion in appointing a local commissioner or inspecting the property under Order 26, Rule 9 CPC or Order 18, Rule 18 CPC, based on the presence or absence of a boundary dispute.
Headnote:
possession - property dispute - [Order 26, Rule 9 CPC, Order 18, Rule 18 CPC] - The court dismissed the suit for possession filed by the plaintiffs, as the evidence showed that the defendants were in possession of the suit land. The court found that the plaintiff's claim of possession was not supported by the evidence, and the defendants' possession was open, hostile, and to the knowledge of the plaintiff and other inhabitants of the village. The court also found that there was no boundary dispute between the parties, and therefore, there was no need to appoint a local commissioner or inspect the property under Order 26, Rule 9 CPC or Order 18, Rule 18 CPC. The court held that the judgments passed in another suit pertaining to adjacent land were not binding on the present case, as the suit land under controversy was different from the land in the previous case.
Fact of the Case:
The plaintiff filed a suit for permanent prohibitory injunction against the defendants, alleging that the defendants were threatening to interfere with the plaintiff's possession of the suit land. The defendants refuted the claim and asserted that they were in possession of the suit land. The trial court dismissed the suit, and the appeal filed by the plaintiffs was also dismissed.
Finding of the Court:
The court found that the evidence supported the defendants' possession of the suit land and that the plaintiff's claim of possession was not substantiated. The court also determined that there was no boundary dispute between the parties, and therefore, there was no need to appoint a local commissioner or inspect the property under Order 26, Rule 9 CPC or Order 18, Rule 18 CPC. The court held that the judgments passed in another suit pertaining to adjacent land were not binding on the present case.
Issues: The main issue was the possession of the suit land, with the plaintiff claiming ownership and possession, and the defendants asserting their open, hostile possession over the land. Another issue was whether there was a boundary dispute between the parties, which would necessitate the appointment of a local commissioner or inspection of the property under Order 26, Rule 9 CPC or Order 18, Rule 18 CPC.
Ratio Decidendi: The court's decision was based on the evidence of possession presented by both parties. The court found that the plaintiff's claim of possession was not supported by the evidence, and the defendants' possession was open, hostile, and to the knowledge of the plaintiff and other inhabitants of the village. The court also determined that there was no boundary dispute between the parties, and therefore, there was no need to appoint a local commissioner or inspect the property under Order 26, Rule 9 CPC or Order 18, Rule 18 CPC. The court held that the judgments passed in another suit pertaining to adjacent land were not binding on the present case.
Final Decision: The court dismissed the appeal, finding no merit in the plaintiff's claim and upholding the lower courts' decisions.
JUDGMENT :
Sandeep Sharma, J.
1. This appeal has been filed by the plaintiffs-appellants (hereinafter referred to as the plaintiffs) against the judgment and decree dated 12.9.2006, passed by learned Additional District Judge, Fast Track Court, Una, District Una, H.P. affirming the judgment and decree dated 10.2.1998, passed by learned Sub Judge 1st Class, Court No.II, Amb, District Una, H.P., whereby the suit filed by the plaintiffs-appellants has been dismissed.
2. Briefly stated facts, as emerged from the record, are that the plaintiff Oma Devi (predecessor-in-interest of the present appellants) filed a suit against the defendants-respondents for permanent prohibitory injunction alleging that the suit land is owned and possessed by her along with one Jaimal Singh. It is averred by the plaintiff that she is having 3/13 share in the suit land and the remaining land is owned by Jaimal Singh, who is residing away. The suit land is a most valuable land which is abutting to main Gohar and residential site. It is further averred by the plaintiff that the defendants are strangers to the suit land having no right, title or interest in it, but they are threatening to interfere in the peaceful possession of the plaintiff by changing its nature by raising construction and forcibly ousting her. She requested the defendants to admit her claim and not to indulge in illegal activities, but the defendants are adamant. It is further averred by the plaintiff that they are in hot haste to achieve their ulterior motive and have collected the construction material and employed the labour to dig the foundations and also to cut the mango tree from the suit land as such the plaintiff had to file this suit against the defendants to restrain them from interfering with the possession of the plaintiff over the suit land in any manner. The plaintiff also made a prayer that in case the defendants succeed in raising any sort of construction over the suit land, during the pendency of the suit, then decree for mandatory injunction by demolition and removal of the structure situated over the suit land or in the alternative a decree for possession may be passed.
3. Defendants, by way of filing written statement, refuted the claim of the plaintiff on the ground of maintainability and estoppel and limitation. On merits, it is alleged by the defendants that the suit land is in possession of the defendants. It is further alleged that in fact the predecessor-in-interest of the defendants had purchased two houses i.e. house No.440 and 441 from the Rehabilitation Department as the same was custodian of the property and prior to the partition of the country, Mohammedans used to live in those houses. Both these houses were constructed opposite to each other and in between both these houses there was a courtyard of about one kanal. At the time of this purchase by the father of the defendants he entered into possession of both these houses along with courtyard and the land around, in front and rear sides of each house was being used by the defendants since the time of their predecessor as courtyard and kitchen garden etc. However, due to over sight and negligence on the part of Revenue Department, the name of predecessor-in-interest of defendants could not be incorporated in the revenue record. Thereafter, in the year 1978 the aforesaid houses were burnt and reconstructed by the defendants with the aid of Government and by taking loan. The plaintiff or anybody else never raised any objection at any point of time qua the possession of the defendants over the suit land. It is alleged by the defendants that their Abadi is in existence over the suit land since the time of their ancestor, as their possession over the suit land is open, in continuity, hostile and to the knowledge of the plaintiff and other inhabitants of the village, but under the garb of present suit, the plaintiff is trying to demolish the construction raised by the defendants and to dispossess them forcibly fr
