Himachal Pradesh High Court
SECOND APPEAL 524 of 2002 on 11 November 1993
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 524 of 2002.
Date of decision: 31.3.2014.
Balwant Singh & ors. …… Appellants
Vs.
Devi Singh & ors. ….. Respondents
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?[1] Yes
For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. Sanjeev Kuthiala, Advocate, for respondents No. 1, 2, 3(a) to 3(c ) and 4. For the Respondents : Mr. Sanjeev Kuthiala, Advocate, for respondents No. 1, 2, 3(a) to 3(c ) and 4.
None for respondents No. 5 to 7.
Tarlok Singh Chauhan, Judge (Oral).
This regular second appeal has been preferred by the defendants- appellants against the judgement and decree passed by learned Additional District Judge, who in turn affirmed the judgement and decree passed by the learned Sub Judge(II), Mandi.
2. Shorn of all unnecessary details, the facts as are necessary for deciding the present appeal are that plaintiffs- respondents filed a suit basing their claim on the plea of partition and at the same time set up an alternative plea of adverse possession.
3. The defendants as obvious contested the suit. The learned trial court on 11.11.1993 framed the following issues:-
1. Whether a private family partition has taken place between the parties and the suit land has come in the share of the plaintiffs thereof? OPP. between the parties and the suit land has come in the share of the plaintiffs thereof? OPP.
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2. Whether there is ouster of defendants from the suit land as alleged? OPP. land as alleged? OPP.
3. Whether the order of Financial Commissioner dated 8.8.91 is illegal, null and void and without jurisdiction? OPP. 8.8.91 is illegal, null and void and without jurisdiction? OPP.
4. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP. injunction as prayed for? OPP.
5. Whether the suit is not maintainable? OPD.
6. Whether the plaintiffs are estopped by their acts, conduct and deed to file the suit? OPD. conduct and deed to file the suit? OPD.
7. Whether the suit is within limitation? OPD.
8. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPD. purpose of court fee and jurisdiction? OPD.
9. Relief
4. The learned trial court, strangely enough, answered both issues No. 1 and 2 in the affirmative, meaning thereby that learned trial court came to the conclusion that there was a private partition inter- se the parties on the basis of which the plaintiffs could be said to be the owners of the suit land. Surprisingly at the same time, it even held issue No. 2 to be proved and concluded that the plaintiffs had become owners of the suit land by way of adverse possession as they have successfully proved ouster of the defendants from the suit land.
5. This decree was mechanically affirmed by the learned lower appellate court. It is against this judgement and decree passed by the learned first appellate court that defendants have preferred the present appeal before this court.
6. The Hon’ble Supreme Court in P. PERIASAMI (DEAD) BY LRS. vs. P. PERIATHAMBI AND OTHERS (1995) 6 SCC 523has held “whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property”.Similarly, the Hon’ble Supreme Court in MOHAN LAL (DECEASED) THROUGH HIS LRS. KACHRU AND OTHERS vs. MIRZA ABDUL GAFFAR AND ANOTHER (1996) 1 SCC 639has held as under:-
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“As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription 'nec vi nec clam nec precario'. Since the appellant's claims is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”
7. The alternate claim of the plaintiffs could have only been decreed in case plaintiffs failed to succeed in getting the first relief. Similarly, the alternative prayer was not required to be gone into when the answer qua first relief was already answered in the affirmative. In no case, could both the reliefs have been granted to the plaintiffs, as these pleas are mutually destructive. It is settled law that possession based on title is lawful possession, while adverse possession is based upon unlawful possession, which has become lawful with the passage of time subject to certain conditions.
8. In this view of the matter, I have no other option, save and except, to remand the case for decision afresh to the learned trial court. The parties through their learned counsel are directed to appear before the learned trial court on 10.4.2014 and the learned trial court is requested to decide the case expeditiously and in no case later than 15[th] May 2014.
9. This order is only aimed at deciding the limited question before this court and therefore will not in any manner be construed to mean an expression on the relative merits of the case. The learned court below will decide the case totally uninfluenced by any observation(s) made in this order. The appeal is accordingly allowed in the aforesaid terms with no order as to costs March 31, 2014. (Hem)
( Tarlok Singh Chauhan ), Judge.
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