Himachal Pradesh High Court
RSA/482/2017 of KAMLA DEVI Vs KIRAN on 31 December 2018
COURT OF HIMACHAL PRADESH SHIMLA RSA No. 482 of 2017. Reserved on : 19 th December, 2018. Decided on : 31 st December, 2018. Smt. Kamla Devi …..Appellants/defendants. Versus Smt. Kiran ..Respondent/Plaintiff. Coram: The Hon’ble Mr. Justice Sureshwar Thakur, Judge. Whether approved
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Facts
IN THE HIGH COURT OF HIMACHAL PRADESHSHIMLA
RSA No. 482 of 2017.
Reserved on : 19th December, 2018.
Decided on : 31st December, 2018.
Smt. Kamla Devi …..Appellants/defendants.
Versus
Smt. Kiran
..Respondent/Plaintiff.
Coram:
.The Hon’ble Mr. Justice Sureshwar Thakur, JudgeWhether approved for reporting?[1] Yes.
For the Appellant:Mr. S.V. Sharma and Ms. AnuTuli, Advocates. For the Respondent:Mr. Hamender Singh Chandel,Advocate.
Sureshwar Thakur, Judge.
The instant appeal is directed, against, theconcurrently recorded verdicts by both the learned Courts 1 Whether reporters of the local papers may be allowed to see the judgment?
below, whereby, the plaintiffs' suit for possession qua thesuit premises, was, hence decreed. 2.Briefly stated the facts of the case are that theplaintiff set out a case that she is owner of the propertycomprised in Khata No.75 min, Khatauni No.286, KhasraNo. 14, 15, and 16, measuring 1.59 sq. meter, situated atMauza Bhagwati Nagar, Teh. and District Shimla, H.P.According to the plaintiff, the suit land/suit property waspreviously owned by Sh. Durga Ram s/o Sh. Ghavlia, whoinherited it from Sh. Shonkia Ram. It was purchased bythe plaintiff from Durga Ram under a sale deed No.1023of 21.07.2008. Defendant No.1 Smt. Kamla Devi hadpreviously filed a civil suit against Durga Ram claimantthe suit property on the basis of a “Will” purportedlyexecuted by Sh. Shonkia Ram. The suit was dismissed bythe ld. Civil Judge (Jr. Divn.), Court no.4, Shimla, on30.05.2008. As per the plaintiff, even the appealpreferred by defendant No.1 was dismissed by the learned First Appellate Court on 31.05.2011. The plaintiffavers that the land comprised in the afore kahsra No.consists of two parts of construction. On part, consists ofa “Katcha Makaan” and the second part consists of“pucca Makan”. The defendant was kept as a care-takerby Sh. Shonkia Ram in one room and no “Will” wasexecuted by him in her favour. The plaintiff furthercontends that as of now there are five rooms including akitchen in the suit property. It is further contended thatone room was constructed by defendant before filing theprevious suit. Thus, there were three rooms in existencewhen the previous suit was filed by defendant No.1. Tworooms were constructed by Sh. Shonkia Ram and oneroom was unauthorisedly constructed by the defendant.It is averred that the defendants, taking advantage of thefact that the plaintiff is living out of Shimla for her job,constructed a two room structure behind the back of theplaintiff. The defendants have absolutely no right whatsoever to remain in possession of the suit property,and, they are liable to be evicted. The plaintiff furthercontends that the suit property which is in possession ofthe defendants, can easily fetch a rent more thanRs.3,000/- per month. The plaintiff claims that thedefendants are liable to pay Rs.3,000/- per month fromNovember, 2008 as use and occupation charges. Theplaintiff also contends that the defendants are in habit ofraising construction and taking advantage of her absenceand therefore, they are liable to be restrained fromraising any construction on the suit land. 3.The defendants contested the suit and filedwritten statement, wherein, they have taken preliminaryobjections inter alia limitation, adverse possession, nonjoinder of necessary parties and estoppel. On merits, thedefendants have denied that the plaintiff is the owner ofthe suit property. It is contendd that Durga Ram was notentitled to inherit the property of late Sh. Shonka Ram.
The defendants further avers that alothough their civil
The defendants further avers that alothough their civil suit was dismissed by lower Court however their appealwas partly allowed by ld. Appellate Court. It is contendedthat before the purported “Will” in favour of defendantNo.1, defendant No.2 was inducted as tenant by late Sh.Shonkia Ram in one room and kitchen. It is contendedthat defendant No.1 constructed three pucca rooms in1990 and no construction was raised after 1995. Thedefendants also claim ownership of the suit property byway of adverse possession. Alternatively, the defendantscontend that they are in lawful possession of the suitproperty as tenant and since the suit property is situatedin municipal area, therefore, they can only be evicted bythe Rent Controller and not through a Civil Suit. 4.On the pleadings of the parties, the learnedtrial Court struck the following issues inter-se the partiesat contest:- …6…
1. Whether the plaintiff is entitled for decree of possession, as prayed for?OPPdecree of possession, as prayed for?OPP
2. Whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed for? OPPdecree of permanent prohibitory injunction, as prayed for? OPP
3. Whether the plaintiff is entitled for decree of Rs.1,08,000/- as use and occupation charges w.e.f. November, 2008?OPPdecree of Rs.1,08,000/- as use and occupation charges w.e.f. November, 2008?OPP
4. Whether the suit is barred by limitation?OPDlimitation?OPD
4-A. Whether the defendant has become owner of the suit property by way of adverse possession, as alleged?OPD. owner of the suit property by way of adverse possession, as alleged?OPD.
5. Whether the suit is bad for non joinder of necessary parties, as alleged?OPD. joinder of necessary parties, as alleged?OPD.
joinder of necessary parties, as
6. principle of estoppel?OPD.principle of estoppel?OPD.
Whether the suit is barred by
7. Relief.
5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court partlydecreed the suit of the plaintiff/respondent herein. In anappeal, preferred therefrom by the defendants/appellants herein, before the learned First Appellate Court, the latterCourt dismissed the appeal, and, affirmed the findingsrecorded by the learned trial Court. 6. With respect to the extant suit khasranumbers, defendant No.1, Kamla Devi, had, previouslyinstituted a civil suit, bearing No. 614 - 1 of 1999, beforethe learned trial Court concerned, rearing therein, an,espousal for rendition, of, a decree for declaration, and,for permanent prohibitory injunction. The afore espousalstood rested, upon, a testamentary disposition executed,vis-a-vis, her by one Shonkia Ram. However, the aforepropagation, of, the plaintiff therein (defendant No.1 inthe extant suit), stood rejected, by the learned trial Courtconcerned, through, a verdict, rendered upon, Civil SuitNo.614-1 of 99, (i) also the further relief claimed therein,for, rendition of a decree, for permanent prohibitoryinjunction, vis-a-vis, the suit khasra numbers therein,and, analogous to the suit khasra numbers hereat, also stood declined to defendant No.1 herein (plaintiff in theafore suit). In an appeal carried therefrom, by the aforeaggrieved Kamla Devi, before, the learned First AppellateCourt, the latter Court proceeded to affirm, the, declining,of, relief of rendition, of, a declaratory decree, vis-a-vis,the thereat suit khasra numbers, as, analogous to theextant suit khasra numbers, (ii) yet proceeded to reverse,the, finding recorded by the learned trial Court, vis-a-a-vis, the declining(s) qua the afore Kamla Devi, the reliefof permanent prohibitory injunction, (iii) and, also ratherproceeded to grant qua her a relief qua, till, her settledpossession, upon, the suit khasra nubers, is, throughprocess of law, concerted to be retrieved, from her,thereupto, her possession thereon, not warranting itsbeing disturbed.
7. The afore conclusive verdict pronounced in theearlier suit, vis-a-vis, suit khasra numbers, common toboth the earlier suit, and, to, in the extant suit, even though, the defendant, in, the earlier suit was one DurgaRam, who, however, remains unimpleaded in theapposite array of parties in the extant suit, negatives thedefendants' espousal (ii) given reiteratedly, the binding,and, conclusive effect of the verdict pronounced, upon,the earlier suit, remaining intact, (iii) conspicuously, vis-a-vis, the failure of afore Kamla Devi to establish herentitlement, to, the suit property, on anvil, of, apurported Will executed in her favour, by one ShonkiaRam. (iii) Rather with forthright evidence makingemergences qua after rendition, of, a conclusive bindingdecree, upon, the earlier suit, the defendant in the earliersuit, one Durga Ram, hence, executing a registered deedof conveyance, vis-a-vis, the suit property, in favour ofthe plaintiff, (iv) and, also when valid concurrent findingsstand returned, by both the learned Courts below, vis-a-vis, valid and due execution of Ex.PW2/A, inter se theplaintiff, and, one Durga Ram, who, stood arrayed as defendant in the earlier suit, (v) reinforcingly, settles, the,trite factum qua the disentitlement, of, the afore KamlaDevi hence to stake any claim, on anvil, of, the aforetestamentary disposition, vis-a-vis, the extant khasranumbers.
8. The cullings out, of, the afore facts,(a)importantly the one appertaining to the afore libertybeing reserved, vis-a-vis, one Durga Ram, the defendantin the earlier suit, to seek possession in accordance withlaw, of, the suit khasra numbers, from, the afore KamlaDevi, and, with afore Durga Ram, after rendition of aconclusive verdict pronounced, upon, Civil Suit No. 614-1of 1999, (i) hence making, through, Ex.PW2/A, a validalienation of the suit property, vis-a-a-vis, the plaintiffherein, (ii) does obviously capacitate, the plaintiff, to,through, the extant suit, hence, seek rendition of adecree, for possession, and, to also seek rendition, of, a decree for permanent prohibitory injunction, against, theafore Kamla Devi.
9. The learned counsel appearing for thedefendant, has, contended with much vigour, before thiscourt, that the concurrent findings rendered, by both thelearned Courts below, appertaining to the acquisition, oftitle, by the defendant(s), vis-a-vis, the suit property, byadverse possession, wanting in legal strength, (i)especially when she had proven all the trite rubric(s)appertaining therewith. However, the afore contention, is,rather frail, for, the reasons (a) a perusal of the plaintreared in the earlier suit by Kamla Devi, copy whereof, is,borne in Ex.PW1/A, failing to make any disclosure qua,the, afore Kamla Devi, hence, rearing any plea therein,vis-a-vis, hers hence acquiring any title qua the suitproperty, by adverse possession, (b) nor obviously anyissue stood struck qua therewith nor any evidence stoodadduced thereon, and, hence no findings stood earlier rendered, upon, the afore propagation, as, stands rearedonly before this Court, by the aggrieved defendant. Theafore omission, of, afore Kamla Devi, to, in the earlier suithence rear the afore propagation, attracts qua her theprinciple of estoppel, constituted under the provisions ofOrder 2, Rule 2 of the CPC, (c) and, attraction whereofqua her, is, reinforced by the factum qua in the earliersuit, hers rather claiming qua hers acquiring title qua thesuit property, under a testamentary disposition executed,vis-a-vis, her by one Shonkia Ram, (d) espousal whereofstood dispelled, by, rather concurrent verdicts recorded,upon, the earlier suit by the learned trial Court, and, bythe learned First Appellate Court, (e) also thereupon, it isto be concluded, that, the afore plea, as, standsherebefore reared by one Kamla Devi, in, her writtenstatement filed to the plaint, being construable to be asheer invention, and, an afterthought.
Conclusion
10. Be that as it may, the aggrieveddefendants also proceed to contend, that, during his lifetime, one Shonkia Ram, had, inducted them, as tenant(s),upon, a portion of the suit property, (i) and, with theproperty being located within the jurisdiction of theMunicipal Corporation, (ii) hence, the only valid remedy,available, to the plaintiff for seeking their evictiontherefrom, is, comprised, in, the institution of an evictionpetition, before the learned Rent Controller concerned.However, the afore contention, is, not bedrocked, upon,any deposition in consonance therewith, being renderedby DW-1, upon, hers stepping into the witness box, (iii)and, the effect, if any, of afore omission, is fullyenhanced, by an echoing occurring in the cross-examination of DW-1, qua hers not making anyattornments of rent qua the afore Shonkia Ram. Thefurther effect thereof, being qua with the defendantshence not clinchingly, proving qua theirs attorning any rent, to, the afore deceased Shonkia Ram, (iv) thereupon,it being not concludable qua theirs holding any tenancyrights, upon, any portion of the suit property nor hence itcan be concluded, that, if any, portion of the suitproperty, stands, located, within the jurisdiction ofMunicipal Corporation, Shimla, thereupon, also the aptremedy for seeking their eviction, from the suit property,not being, through a petition being filed before the RentController concerned, rather the extantly recoursedremedy being the apt remedy.
11. For the foregoing reason, no substantialquestion of law, much less a substantial question of lawarises, for determination in the instant appeal.Consequently, there is no merit, in the instant appeal,and, it is dismissed. In sequel, the judgments anddecrees rendered by the learned Courts below areaffirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
31[st] December, 2018. (jai)
(Sureshwar Thakur) Judge.