RSA No. 505 of 2005. Case: Bhag Singh Vs Piar Dassi and Ors.. Himachal Pradesh High Court

Case NumberRSA No. 505 of 2005
Party NameBhag Singh Vs Piar Dassi and Ors.
CounselFor Appellant: Raman Jamalta, Vice Counsel and For Respondents: C.S. Thakur, Advocate
JudgesSandeep Sharma, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order XLI Rule 41; Sections 100, 35A, 90, 96
Judgement DateMarch 27, 2017
CourtHimachal Pradesh High Court

Judgment:

Sandeep Sharma, J.

  1. Instant Regular Second Appeal is filed under Section 100 CPC against judgment and decree dated 17.8.2005 rendered by the learned ADJ.., Fast Track, Kullu, Himachal Pradesh in Civil Appeal No. 18/2005, whereby judgment and decree passed by the learned Civil Judge (Senior Division), Lahaul & Spiti at Kullu (HP) in Civil Suit No. 35 of 2004, has been modified.

  2. Briefly stated the facts as emerge from the record are that the appellant-plaintiff (herein after, 'plaintiff') filed a suit for permanent prohibitory injunction restraining the respondents-defendants (hereinafter, 'defendants') from causing any sort of interference in his ownership and possession over land comprised in Khasra No. 117 contained in Khata Khatauni No. 456 min/496 min, as per Jamabandi for the year 1996-97 situated in Phati Palach, Kothi Palach, Tehsil Banjar, District Kullu, Himachal Pradesh (herein after, 'suit land') and residential house situated in the Abadi owned and possessed by the plaintiff. Plaintiff averred in the plaint that the suit land was earlier owned and possessed by his father, Shri Khinthu, who executed a registered Will dated 16.4.1985, in his favour as well as his brother Puran Singh. As per plaintiff, after death of their father, they became owner-in-possession of the suit land. Plaintiff further claimed that his father disinherited his daughter i.e. defendant No. 1, who was married during his life time and, since then, she had been residing in the matrimonial house, with her husband. Plaintiff termed defendants to be strangers to the suit land/property stating that they have no right, title or interest over the suit land. But since defendants started interfering in the owner-in-possession of the plaintiff over the suit land, without there being any right or title, he was compelled to file instant suit seeking therein permanent prohibitory injunction restraining the defendants, as stated above.

  3. Defendants, by way of detailed written statement, refuted aforesaid contentions of the plaintiff. Defendants stated that the residential house is not standing over the suit land, but the same has been constructed by them, over the Government land and for the last 30 years, they have been residing therein. Defendants claimed that their possession over the house, as mentioned above, is without interruption and to the notice and knowledge of the public at large as well as plaintiff, and, a such, they have become owners by way of adverse possession. Defendants neither disputed the execution of Will in favour of the plaintiff and his brother, nor their ownership and possession over the suit land. Rather, defendants claimed themselves to be owner of land adjoining to the suit land, which actually belonged to the Government. As per the defendants, Government land was encroached and made cultivable by defendant No. 1 and plaintiff had no concern with the encroached land. While seeking dismissal of the suit of the plaintiff, defendants further claimed that they never interfered in the ownership of the plaintiff, rather, he wants to dispossess them from encroached land and house, which is under their possession. Similarly, defendants claimed that crop was harvested from encroached land, which was sown by them.

  4. Learned trial Court, on the basis of pleadings framed following issues:

    1. Whether the plaintiff is the owner in possession of the suit property as alleged?

    OPP

    2. Whether the plaintiff is entitled to the prohibitory injunction prayed for?

    OPP

    3. Whether the plaintiff has a cause of action?

    OPP

    4. Whether the suit is not maintainable in the present form?

    OPD

    5. Whether the plaintiff has not come to the Court with clean hands as alleged. If so, its effect?

    OPD

    6. Whether the defendants are entitled to special costs under section 35-A CPC as claimed, if so, their quantum?

    OPD

    7. Whether the defendants have become the owners of the property by way of adverse possession as alleged. If so, its effect?

    OPD

    8. Relief.

  5. Subsequently, learned trial Court, on the basis of pleadings as well as material and evidence adduced on record by the respective parties, decreed the suit of the plaintiff and restrained the defendants by a decree of perpetual injunction from interfering in the peaceful owner-in-possession of the plaintiff over the suit land, in any manner, whatsoever or dispossessing him, harvesting his crops. Feeling aggrieved, defendants filed an appeal before the Additional District Judge, Fast Track, Kullu under Section 90 CPC, which came to be registered as Civil Appeal No. 18/05/11/2005. Learned Additional District Judge, partly allowed the appeal of the defendants and set aside the judgment and decree passed by the trial Court restraining the defendants from interfering in the Abadi, whereas held plaintiff to be owner-in-possession suit land. In the aforesaid background, plaintiff approached this Court by filing the instant Regular Second Appeal, praying therein for setting aside judgment and decree of the first appellate Court and restoring the judgment and...

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