IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.320 of 2000 alongwith RSA No.333 of 2000 Judgment reserved on : 21.12.2010 Date of decision : 23.12.2010 ____________________________________________________ 1. RSA No.320 of 2000 Manohar Singh …Appellant. Versus Inder Ram …Respondent. RSA No.333 of 2000 Inder Ram …Appellant Versus Manohar Singh ..Respondents _____________________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the appellant : Mr. Anand Sharma, Advocate, for appellant in RSA No. 320 and for respondent in RSA No.333 of 2000. For the Respondent : Mr. Chaner Paul Sood, Advocate, for respondent in RSA No.320 of 2000 and for appellant in RSA No.333 of 2000. Kuldip Singh, Judge This judgment shall dispose of RSA No.320 of 2000 and RSA No.333 of 2000 both having arisen from common judgment, decree dated 1.4.2000 passed by learned District Judge, Chamba in Civil Appeal No.6 of 1999. In this judgment the parties are referred from RSA No.320 of 2000. 2. The facts in brief are that appellant had filed a suit for _________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 possession of land comprised in khasra No.326/1 measuring 46 square yards and 4 square feet, khasra No.347/324/3, measuring 42 square yards and 4 square feet. The suit is also for possession of land comprised in khasra No.347/324/1, measuring 12 square yards and 2 square feet and land comprised in khasra No.347/324, measuring 9 square yards and 7 square feet by way of mandatory injunction by demolition of two latrines and portition of house illegally constructed over the said khasra numbers by respondent. 3. The further case of the appellant that he was co-sharer with his brother. The land was partitioned by the brothers and a report to this effect was made to Patwari Halqua on 30.11.1989 and mutation No.107 of partition was attested by Assistant Collector. On the basis of family partition, the appellant became owner in possession of land comprised in khasra No.347/324, khasra No.326, measuring 229 square yards and 3 square feet. The appellant filed an application to Tehsildar, Churah for demarcation of aforesaid land. The land was demarcated in March, 1994 and it was found that the land comprised in khasra No.326/1, measuring 46 square yards and 4 square feet and land measuring 42 square yards and 4 square feet out of khasra No.347/324/3 was found in possession of the respondent who took the possession in the year 1990. 4. In addition to aforesaid land, the respondent had also constructed two latrines over an area measuring 12 square yards and 2 square feet, comprised in khasra No.347/324/1. This construction was also made during the pendency of the application by respondent despite objection of appellant. 3 5. The respondent has extended the house towards the land of appellant. The respondent has asserted that he is raising construction on his own land. The respondent in this way has encroached 9 square yards and 7 square feet land of appellant out of khasra No.347/324 shown as khasra No.347/324/2. The appellant has prayed for mandatory injunction for removable of illegal construction raised by respondent and delivery of vacant possession to the appellant of the said land. 6. The suit was contested by respondent by filing written statement in which he took preliminary objections of maintainability, estoppel on account of act and conduct, limitation and lack of cause of action. On merits, the respondent has denied the family partition claimed by the appellant. The correctness of revenue entries showing the appellant as owner of khasra No.347/324 has been denied. It has been pleaded that house was raised over the suit property and also on khasra No.347/324 in the year 1964 and at that time no body objected including original owner Dass. The respondent has taken the plea of adverse possession on the suit land for the last more than 35 years. It has been pleaded that demarcation was not conducted properly. It has been pleaded that respondent has raised some fruit bearing trees on the suit land which are more than 15 years old. The latrines were constructed in the year 1984-85 to the knowledge of appellant, who did not raise any objection at the time of construction and he is thus estopped from his act and conduct. The pleas of limitation, lack of cause of action and valuation of the suit were also taken. The 4 appellant has filed replication and reasserted the case set up by him in the plaint while denying the stand taken by the respondent.. 7. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff alongwith his brothers was joint owner in possession of the suit property as alleged? OPP 2. Whether the plaintiff is entitled to a decree for possession as claimed? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD 5. Whether the suit is time barred? OPD 6. Whether the plaintiff has a cause of action? OPP 7. Whether the defendant has become the owner of the suit property by way of adverse possession as alleged? OPD 8. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 9. Relief. Issues No.1,2 and 6 were decided in affirmative whereas issues No.3 and 6 were answered in negative. It has been observed that issues No.4,5 and 8 were not pressed. The learned Sub Judge Ist Class, Chamba decreed the suit for possession as well as for mandatory injunction. In appeal the learned District Judge on 1.4.2000 allowed the appeal partly qua relief of possession and mandatory injunction regarding land comprised in khasra No.347/324/1, measuring 12.2 Sq, yards and land comprised in khasra No.347/324/2 measuring 9.7 Sq. Yards. However, the appeal 5 regarding khasra No.326/1, measuring 46.4 Sq.yards and khasra No.347/324/3, measuring 42.4 Sq. yards was dismissed. The appellant in RSA No.320 of 2000 has assailed judgment, decree dated 1.4.2000. The respondent has also assailed judgment, decree dated 1.4.2000 in RSA No.333 of 2000. 8. The RSA No.320 of 2000 has been admitted on following substantial questions of law:- 1. Whether the decision taken by the trial Court on the plea of acquiescence and estoppel could be considered when the said plea was never taken by the respondent before the trial Court? 2. Whether the relief sought for mandatory injunction could be refused by the courts below when it is established that the suit has been filed within time more specifically when the plea of adverse possession raised by the defendant has not been accepted by the Court? 9. The RSA No.333 of 2000 has been admitted on following substantial question of law:- “Whether the plaintiff, who proved his title to the suit property w.e.f. 1986 only, whereas the suit was filed in the year 1994, was not required to prove his or his predecessor’s possession within 12 years prior to the filing of the suit and on his failure to do so, does not prove the adverse possession of the defendant.” 10. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that the learned District Judge has erred in modifying 6 the well reasoned judgment, decree dated 2.1.1999 of the learned trial Court. It has been submitted that appellant is entitled to relief as prayed in the suit and granted by the learned trial Court. There is no plea of acquiescence in the written statement, no doubt plea of estoppel has been taken in the written statement. The learned District Judge has erred in modifying the judgment, decree of the learned trial Court by returning the finding of acquiesce against appellant even though there is no specific issue to this effect. Moreover, the respondent has not pressed issued No.4 of estoppel in the learned trial Court. The plea of respondent that observation of learned trial Court that respondent had not pressed issue No.4 is not legally available to respondent in as much as presumption of truth is attached to the judicial record and respondent had not taken any step in accordance with law by moving appropriate application in the learned trial Court that observation made by the learned trial court in the judgment dated 2.1.1999 regarding issue No.4 is wrong. It has been submitted that learned District Judge in these circumstances has erred in reversing the finding of learned trial Court on issue No.4. 11. The learned counsel for the respondent has supported the impugned judgment, decree and has additionally submitted that whole of the suit of the appellant deserves dismissal in view of proved material on record. It has been submitted that in the grounds of appeal in the learned lower appellate Court it has been stated that respondent did not give up issue No.4 of estoppel. It has been submitted that respondent has proved his adverse possession on the suit land. 7 12. The substantial questions of law No.1 and 2 in RSA No.320 of 2000 and substantial question of law in RSA No.333 of 2000 are interconnected; therefore, all the substantial questions of law are taken up collectively for determination. The issue No.4 is of estoppel and burden of this issue is on respondent. In the written statement the respondent has taken the plea of estoppel. In law estoppel has several forms such as estoppel by conduct, deed, representation, silence, promise and acquiescence etc. The respondent has not pleaded specific estoppel of acquiescence in the written statement nor issue of estoppel by way of acquiescence has been framed. The estoppel by way of acquiescence is based on facts and unless the attention of the other side by way of minimum pleadings of estoppel by way of acquiescence are pleaded, it is not possible to project estoppel by way of acquiescence later on. 13. The respondent has appeared as DW-1 and has stated that he is owner in possession of house and latrines in dispute. The house was constructed in the year 1964 and no body objected the construction. The two latrines were constructed in the year 1984. He has not stated whether any body had raised objection at the time of construction of two latrines or not. PW-1 Manohar Singh has stated that only during demarcation he came to know that he is owner of the house portion and before that he has not aware of that. The respondent has taken the plea of adverse possession on the suit land, this indicates the respondent admits the title of the appellant to some extent on the suit land at one point of time. 8 14. In Mustafa Husain and others vs. Mt. Saidul Nisan and others AIR 1927 Oudh 66 the plea was that defendants have raised the plea of acquiescence simply on the ground that the plaintiff No.1 raised no objection when the building was constructed and that there was long delay on her part in enforcing her right, if any, in respect of the land in dispute. On these facts, it was held that this does not establish acquiescence. It was never defendants’ case that they had acted in the bonafide belief that they were acting within their rights. 15. The Allahabad High Court in Ram Kishan vs. Karam Singh and another AIR 1949 Allahabad 673 has held that where a person allows another to make certain constructions on certain land without knowing that the land belongs to him, he cannot be estopped from claiming the land subsequently. 16. In Union of India vs. Watkins Mayor and Co. AIR 1966 SC 275, it has been held that merely because the plaintiff had claimed storage charges at the rate of `4 per ton per month and there was silence on the part of the defendant. It cannot be said that there was acquiescence on the part of the defendant and that there was an implied undertaking on his part to pay godown rent at that rate. 17. In Shiv Ditta vs. Kidar Nath AIR 1972 HP 20 while interpreting Section 115 of the Evidence Act, It has been held that where all the facts are within the knowledge of both parties there is no question of one party acting on the faith of an incorrect representation. 18. In Nelson’s Law of Injunctions Second Edition, on page 361 ( AIR 1986 Karnataka 77) , it is stated as follows: 9 “It has already appeared that the doctrine of acquiescence as a bar to relief does not apply where the party, committing the wrong knows that he is doing that which he has no right to do. In relation to trespass therefore the doctrine applies only to those cases where the trespasser is acting under a mistaken belief as to his own rights and not where he deliberately infringes the rights of another. 19. It is not the case of the respondent that he was not aware of the actual position or he bonafide raised construction on the land treating it to be his own land. The appellant while appearing as PW-1 has stated that land in dispute belongs to him came to his notice only at the time of demarcation. In this situation it cannot be said that appellant knowingly, intentionally and willfully permitted the respondent to raise construction on the disputed land. The respondent in his statement has not stated that while constructing latrines, appellant remained silent and did not object or due to the acts of the appellant the respondent took the impression that appellant had consented for the construction. The respondent has failed to prove that appellant has acquiesced to the construction raised by the respondent on a part of land in dispute. 20. There is another aspect of the case. The learned Sub Judge in the judgment dated 2.1.1999 under issues No.4,5 and 8 has recorded the observation that issues No.4,5 and 8‘not pressed’ . This observation of the learned trial Court regarding issues NO.4,5 and 8 was questioned by respondent in the appeal filed in learned lower appellate Court. In State of Maharashtra vs Ramdas Shrinivas 10 Nayak and another AIR 1982 SC 1249 wherein it has been held that the Judges’ record was conclusive. Neither lawyer nor litigant may claim to contradict it except before the Judge himself, but nowhere else. 21. In State of Maharashtra and others vs. Admane Anita Moti and others AIR 1995 SC 350 it has been held that the factual recitals or observations made in a judgment or order are taken to be correct unless rebutted. The burden to rebut it is on the person who challenges it. One of the methods to rebut such observation is to file the affidavit of the person who was present in the Court and to produce such material which may satisfy the Court that the recital in the judgment crept inadvertently or it was erroneous. 22. In the present case, the respondent neither approached the trial Court regarding the observation recorded by trial Court on issues No.4,5 and 8 nor he has followed the procedure laid down in State of Maharashtra and others (supra). The fact remains once respondent has not pressed issue No.4 of estoppel, he is precluded from raising grievance against the observation recorded by the learned trial Court regarding issue No.4 holding that issue No.4 was not pressed. The learned District Judge has erred in holding that appellant has acquiesced from filing the suit regarding land comprised in khasra No.347/324/1 and land comprised in khasra No.347/324/2. The findings of learned District Judge regarding khasra No.347/324/1 and khasra No.347/324/2 are liable to be set aside. 23. The appellant is found to be owner of suit land on a portion of which respondent has illegally raised construction. The learned 11 counsel for the respondent has relied Krothapalli Satyanarayana vs. Koganti Ramaiah and others AIR 1983 SC 452 in support of his plea that appellant is not entitled to mandatory injunction. In that case the construction was raised over passage. In the present case the respondent has illegally, un-authorisedly raised construction on the land over which he has no right, title or interest. The suit of the appellant is based upon title. The respondent has not shown any right or better title over the suit land, therefore, he is liable to restore back possession of the suit land to appellant after removing the construction raised by him on the suit land and in absence thereof the appellant is entitled to a decree of mandatory injunction for demolition of construction raised by respondent on any part of the suit land. 24. The suit is based upon title and not on possession or dis possession. Both the Courts below have not accepted the plea of respondent of adverse possession on issue No.7. The finding of adverse possession is a finding of fact. In second appeal re- appreciation of the evidence is not possible. It has not been shown that inadmissible evidence has been accepted or material evidence has been ignored by the two Courts below while rejecting the plea of adverse possession of respondent. In these circumstances, substantial question of law No.1 and 2 in RSA No.320 of 2000 are decided in favour of the appellant and against the respondent and substantial question of law in RSA No.333 of 2000 is also decided against Inder Ram in that appeal who is respondent in RSA No.320 of 2000. Hence, judgment, decree dated 1.4.2000 passed by learned District Judge is liable to be modified has held above. 12 25. No other point was urged. 26. The result of above discussion, RSA No.320 of 2000 is allowed, RSA No.333 of 2000 is dismissed. Judgment, decree dated 1.4.2000 passed by learned District Judge are modified as held above, judgment and decree dated 2.1.1999 passed by learned Sub Judge Ist Class, Chamba in Civil Suit No.138 of 1994 are restored with no order as to costs. December 23,2010 (Kuldip Singh), (sks) Judge. 13 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.333 of 2000 Judgment reserved on : 21.12.2010. Date of decision: 23.12.2010. Inder Ram …Appellant Versus Manohar Singh ..Respondents ________________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. Chander Paul Sood, Advocate. For the Respondent : Mr. Anand Sharma,Advocate. Kuldip Singh, J For judgment, see judgment rendered in RSA No.320 of 2000, titled Manohar Singh vs. Inder Ram. December 23, 2010 (Kuldip Singh), (sks) Judge. Whether the reporters of the local papers may be allowed to see the Judgment?