IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 370 of 2000 Reserved on: 29.03.2011 Date of decision: 27.04.2011 Jaswant Singh Negi ... Appellant Versus Rajinder Kumar and another … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For the respondents: Mr. Rajnish K. Lal vice Mr. K.D. Sood, Advocate, for respondent No. 1. V.K. Ahuja, J. : This is a Regular Second Appeal under Section 100 C.P.C. filed by the original appellant Uday Singh Negi, now represented by his L.R. against the judgment and decree dated 1.7.2000 of the Court of learned District Judge, Kinnaur, reversing the judgment and decree passed by the learned Senior Sub Judge, Kinnaur, dated 10.12.1996, dismissing the suit of the plaintiff/respondent for permanent prohibitory injunction. 2. Briefly stated, the facts of the case are that respondent No. 1 hereinafter referred to as the plaintiff filed a suit for permanent injunction as against the appellant hereinafter also referred to as 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 defendant No. 1 and in which the original proforma respondent Raj Kumar, now deleted, was impleaded as proforma defendant/defendant No. 2. 3. The facts as alleged by the plaintiff were that the plaintiff and proforma defendant were working outside since the plaintiff was posted at Delhi, while proforma defendant is presently deployed outside India in Sweden. It was alleged that father of the plaintiff and proforma defendant, namely, L.S. Negi, owned and possessed movable property including the suit land comprised in Khasra No. 917 measuring 0-40-81 Hac. situated in Up Muhal Kalpa, Ditrict Kinnaur, H.P. It was alleged that father of the plaintiff and proforma defendant is missing since 23.11.1981, is presumed to be dead and plaintiff and proforma defendant No. 2 have succeeded to his estate. It was further alleged that a succession certificate in this regard has been granted by the learned Senior Sub Judge, Shimla, exercising the powers of District Judge under the Indian Succession Act. It was further alleged that the plaintiff and proforma defendant No. 2 were owners in possession of the suit land. The suit land previously belonged to the father of the plaintiff and proforma defendant No. 2 and had been looking after the orchard in question on behalf of the plaintiff and proforma defendant No. 2’s father. It was alleged that father of the plaintiff and proforma defendant No. 2 had been paying thousands of rupees annually for maintenance of the orchard in question to defendant No. 1. It was alleged that defendant No. 1 with an intention to grab the suit land is trying to interfere with the plaintiff’s right of user over the suit land and defendant No. 1 has also moved an application in the Court of Assistant Collector 1st Grade Kalpa, for entering his possession over the suit land. It was 3 alleged that defendant No. 1 has no right over the suit land and since he is threatening to interfere in the possession of plaintiff and proforma defendant No. 2, hence the suit for injunction filed by the plaintiff. 4. Defendant No. 1 took up preliminary objections in regard to limitation, maintainability, estoppel etc. On merits, he pleaded that the father of the plaintiff and proforma defendant never stayed in the village and as such, there is no question of owning or possessing the property. It was further pleaded that the suit land was purchased by defendant No. 1 from his own private and exclusive funds and the defendant had allowed the name of his brother and father of the plaintiff to be recorded as owner, though he never invested any money for the purchase or improvement of the suit land. It was also pleaded that the possession is of the defendant over the suit land in his own individual capacity and since the defendant had planted fruit trees and nurtured the plants and thus, the defendant has become the owner by way of adverse possession. It was also pleaded that rather the plaintiff is interfering in the peaceful possession of the defendant, hence, the suit is liable to be dismissed. 5. It is not necessary to reproduce all nine issues framed by the learned trial Court. However, suffice to say that the issue of ownership of the plaintiff was framed and no specific issue was claimed or framed in regard to the question as to whether defendant No. 1 was the real owner of the suit property and not the father of the plaintiff and proforma defendant No. 2. Parties led their evidence and the learned trial Court vide its impugned judgment held that it has been proved that the plaintiff and proforma defendant are owners of the suit land, but since 4 they failed to prove their possession over the suit land, the suit for permanent injunction was dismissed accordingly. 6. During the course of appeal filed by the appellant, an application for amendment of the plaint was also filed, which was allowed by the Court allowing the relief of possession in the alternative. 7. On appeal, the learned Appellate Court reversed the findings of learned trial Court dismissing the suit of the plaintiff and the suit for possession of the suit land was decreed in favour of the plaintiff/ respondent No. 1. 8. The appeal in question was admitted by this Court on the following substantial questions of law:- “1. When the Plaintiff-Respondent claimed title to the suit property on account of the fact that Dr. L.S. Negi, predecessor in interest of the Plaintiff-Respondent is not heard since 1981, could the title of the Plaintiff- Respondent be presumed over the suit property without there being declaration claimed by the Plaintiff-Respondent with respect to the civil death of Dr. L.S. Negi, as envisaged under the provisions of Indian Evidence Act, was not the suit in-competent in the absence of seeking declaration in this regard. 2. Whether the Lower Appellate Court has misread the contents of Exhibits P-1/1 to Exhibits P-4/4 to come to the conclusion that the defendnat-appellant was holding property as a Manager/Agent of the Plaintiff and his predecessor? 3. Whether the Lower Appellate Court has wrongly permitted the Plaintiff-Respondent to amend the plaint during the pendency of the appeal by changing the entire complexion of the suit land and to incorporate the suit which has divested the defendant-Appellant of his valuable rights? 5 9. I have heard the learned counsel for the parties and have gone through the record of the case. 10. The submissions made by the learned counsel for the appellant were that there was no mutation of inheritance in favour of the plaintiff, neither any succession certificate was proved on record and the plaintiff was not having any title when he filed the suit. It was also submitted that there is no evidence led by the plaintiff from the statement of his relatives that the father of the plaintiff and proforma defendant had not been heard or was missing for more than 7 years. It was also submitted that the plaintiff has not appeared in the witness box and had only examined his Special Power of Attorney and as such, an adverse inference has to be drawn against the plaintiff for not appearing in the witness box. It was also submitted that no declaration was sought by the plaintiff and since there is no succession certificate on record, which was the best evidence of title and as such, the learned Courts below had come to a wrong conclusion that the plaintiff was the owner of the suit property. It was submitted that the suit for injunction was not maintainable since the plaintiff was proved to be in permissive possession or as licencee and as such, the relief of possession granted in the alternative after allowing the amendment of the plaint could not have been granted and as such, the findings to the contrary are liable to be reversed. 11. On the other hand, learned counsel for the respondent had supported the impugned judgment for the reasons recorded therein. In regard to the non-examination of the plaintiff or examination of his Attorney, it was submitted that no substantial questions of law was framed in that regard or was claimed. It was also submitted that the 6 plea of adverse possession and ownership are contradictory plea, which cannot be allowed at the same time and as such, the findings of the learned Appellate Court are liable to be affirmed. 12. On appraisal of the record of the case, it is clear that the learned trial Court had given definite findings that the plaintiff and proforma defendant No. 2 were owners of the suit land, which findings have been affirmed by the learned Appellate Court after making a detailed reference to the evidence led by both the parties. It is clear from perusal of the record that in the copy of jamabandi for the year 1970-71 Ext. P-3, Dr. L.S. Negi, predecessor-in-interest of the plaintiff and proforma defendant No. 2 had been recorded as owners in possession of the suit land. The description of the suit land is non-irrigated land. In the jamabandi/Misal Hakiat Ext. P-4 for the year 1981-82, Dr. L.S. Negi had been recorded as owners and description of the suit land is orchard. The plaintiff and proforma defendant No. 2 had been recorded as owners of the suit land in Ext. P-5 jamabandi for the year 1991-92, Ext. P-6 and Ext. PW1/E Khasra Girdawari from 1983 to 1996. The Courts below have also referred to the letters Exts. P1/1, P2/2, P3/3 and P4/4, written by defendant No. 1 to the plaintiff and his Attorney, which were admitted to have been written by defendant No. 1, in which a request had been made for payment of the maintenance charges. Thus, it is clear that once the plaintiff and proforma defendant No. 2 were duly recorded owners of the suit land in the jamabandi for the relevant period, it was not necessary for them to have sought declaration also in regard to their ownership. No specific issue was claimed by defendant No. 1 that the suit should have been filed for declaration and the plaintiff should prove this fact also that he was owner of the suit land. Therefore, on the basis 7 of the evidence on record and the pleadings of the parties and issues framed, the learned trial Court had rightly concluded that the plaintiff and proforma defendant were owners of the suit land and there are findings under Issue No. 1 in this regard of the learned trial Court and affirmed by the learned Appellate Court. No infirmity was pointed out in the said conclusion arrived at by the Courts below and I do not think that a detailed reference is required to be made to the evidence and there can be no reappraisal of the evidence in this regard, once both the Courts below have discussed the evidence in detail. 13. Insofar as the question is concerned, as to whether the suit land had been purchased by the funds provided by defendant No. 1 or it was a fictitious sale in the name of the previous owner. Both the Courts below have referred to the evidence and had rightly concluded that the suit land was not purchased by defendant No. 1 or that the previous owner was not the real owner of the suit land. The next question which has been decided by the Courts below is that defendant No. 1 had failed to prove his ownership by adverse possession. It has been rightly discussed by the learned trial Court as well as by the learned Appellate Court that the mere possession of defendant No. 1 on behalf of the owner may be for number of years does not ripen into adverse possession until and unless there was a plea as to since when this possession became adverse as against the true owner and the mere long possession does not ripen into an adverse possession. Neither the pleadings were specific in this regard as to since when defendant No. 1 is in adverse possession, nor there was specific proof and both the Courts below had rightly concluded that defendant No. 1 had failed to prove his adverse possession over the suit land. 8 14. The learned counsel for the respondent rightly submitted that the plea of ownership by adverse possession and ownership being the true owner, are mutually destructive pleas as on the one hand defendant No. 1 had taken the plea that he had financed the proceeds and he was the actual owner. On the other hand, he has taken the plea that he had become owner by way of adverse possession. Therefore, it is clear that both the pleas though these can be taken, but they do not prove the case of the defendant and accordingly, the conclusions arrived at by the learned trial Court that defendant No. 1 had failed to prove that he had purchased the land or that he had become owner by way of adverse possession are not required to be interfered with. 15. A plea was taken by the learned counsel for the appellant that an adverse inference may be drawn against the plaintiff for not appearing in the witness box. To substantiate his plea, learned counsel for the appellant had relied upon the decision in Harswarup Vs. Ram Lok Sharma, Latest HLJ 2000(HP) 776, in which it was held that the appearance of a general Attorney is only on his personal capacity. It was also held that failure of the tenant to step into the witness box an adverse inference against him will have to be proved. 16. Another decision relied upon in this regard is in Smt. Ranjana Nagpal alias Ranjana Malik Vs. Devi Ram & Ors., Latest HLJ 2001 (HP) 1208, wherein it was similarly held that failure on the part of the defendant to step into the witness box to depose in support of her case and subject herself to cross-examination, an adverse inference will have to be drawn against her. 17. Reliance was placed upon the decision in Pandurang Jivaji Apte Vs. Ramchandra Gangadhar Ashtekar (dead) by LRs. 9 and others, AIR 1981 Supreme Court 2235, wherein it was held that party failing to appear in Court, the question of drawing an adverse inference would arise only when there is no other evidence on record on the point in issue. 18. On the other hand, my attention has been drawn to the decision of this Court in Sunder Singh and others Vs. Brij Lal and another, 2010(3) Him. L.R. 1573, wherein it was held that if the power of attorney holder has rendered some ‘acts’ in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. It was further observed that in case some of the facts are within the knowledge of the party, he has to depose himself and the Attorney cannot depose in his favour and the statement of Attorney has to be taken as a witness only and not as a party. 19. Reliance was also placed upon the decision of this Court in Kamlesh Rani Vs. Balwant Singh, 2010(3) Him. L.R. 1758, wherein after referring to the various decisions including that of the Apex Court, it was held by this Court in Para-21 of the judgment as follows:- “It is clear from a perusal of the above decisions that the statement of an Attorney can be considered as a witness. However, it cannot be said to be on behalf of the party unless and until there are facts and circumstances to show that a party was unable to appear in the witness box. His statement has to be tested in cross examination and if he has no knowledge of the personal facts and the party had intentionally avoided appearing in the witness box to avoid cross-examination, in these circumstances, an adverse inference can be drawn against the party for not appearing in the witness box. ……” 10 20. It is, therefore, clear from the above discussion that an adverse inference can be drawn against the party if it is shown that some facts were within the knowledge of the party concerned and he has evaded to appear in the Court. The suit of the plaintiff was based upon the jamabandi entries showing the plaintiff and proforma defendant No. 2 as owners and there were no specific facts alleged in the plaint or in the cross-examination, which could not be answered by the Attorney, wife of the plaintiff, who appeared in the witness box. Therefore, there is no occasion in the facts of the case to draw an adverse inference against the plaintiff. Moreover, an objection was also taken by the learned counsel for the respondent that this was neither taken as a ground of appeal nor was raised as a substantial question of law and, therefore, the above plea cannot be raised at this belated stage. 21. The learned counsel for the appellant has submitted that substantial question of law even if not framed can be raised in case it arises from the facts of the case. 22. In view of the above discussion, it is clear that this question can be raised and accordingly, this has been allowed to be raised and has been replied as above. 23. Coming to the question that if the plaintiff was entitled to take the plea of relief for possession in the alternative, which was permitted by the learned first Appellate Court, it is clear that in appropriate cases, the relief of possession can be granted in a suit for injunction also. In the present case, the suit has been filed by the plaintiff for injunction and it had been proved that he is the owner of the suit property alongwith proforma defendant and as such, he cannot be relegated to the position that he should now file a suit for 11 possession to claim the relief in his favour. Once he has found to be not in possession, in such circumstances, the relief of possession in the alternative can be granted and that was rightly granted by the learned first Appellate Court. I see no reason to interfere with the said findings recorded by the learned first Appellate Court. 24. In view of the above discussion, it follows that there is no merit in the appeal filed by the appellant, which is dismissed accordingly, so also the pending miscellaneous application(s), if any. ( V.K. Ahuja ), April 27, 2011 Judge (BSS) 12