IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 223 of 2010. Reserved on: 14.10.2011. Decided on: 08.11.2011. _____________________________________________________ Olive May Dutt. …Appellant. -Versus- Krishan Kumar Bhargav. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellant. : Mr. Anand Sharma, Advocate. For the respondents. : Mr. Ajay Mohan Goel, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 15.01.2010, passed by the learned Additional District Judge, Fast Track Court, Kullu, H.P. in Civil Appeal No. 49 of 2009. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that respondent-plaintiff, Krishan Kumar Bhargav (hereinafter referred to as “the plaintiff” for convenience sake) had filed a suit for possession against the appellant-defendant, namely, Ms. Olive May Dutt (hereinafter referred to as “the defendant” for brevity sake). According to the plaintiff, Shri Bankey Lal was owner of the suit land/property, measuring 1 bigha, 2 biswa, comprised in Khasra No. 53 min Khata/Khatauni No. 71/107. He had constructed one and half storeyed house consisting of two rooms, one kitchen, one Veranda 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - and one attic and on the remaining suit land, he had raised orchard. The suit house was rented out by late Shri Bankey Lal to one Madan Mohan Dutt, British National at the annual rent of `1700/- in the year 1975. Defendant also started residing with said Madan Mohan Dutt and claimed herself to be his wife. Plaintiff and performa defendants inherited the suit property being legal representatives of Shri Bankey Lal Bhargav. Shri Madan Mohan Dutt kept on paying rent to the plaintiff and performa defendants. Shri Madan Mohan Dutt shifted somewhere else, however, the defendant continued paying rent to the plaintiff and performa defendants uptill 1994. She stopped paying rent after 1994. According to the plaintiff, the defendant was not inducted as tenant directly. However, she was holding the property and had been claiming herself to be the tenant of the suit property. According to the averments contained in the plaint, the plaintiff and performa defendants did not own any other house and property in Manali. They wanted suit property for their bonafide personal use and asked defendant to vacate the suit property. She refused to vacate the same. Thereafter, a notice was issued under Section 106 of the Transfer of Property Act, terminating her tenancy over the suit property and calling upon her to vacate the suit property. A suit was also instituted by the plaintiff and performa defendant No. 2 bearing Civil Suit No. 45 of 2000 against defendant No. 1, which was partly decreed by the learned Sub Judge Ist Class, Manali. Defendant preferred an appeal before the learned District Judge, Kullu. He allowed the appeal and dismissed the suit, holding that notice to terminate the tenancy should have allowed the period of 6 months to vacate the suit - 3 - property. Thereafter, fresh notice was issued to the defendant on 30.05.2002 under Section 106 of the Transfer of Property Act, vide which tenancy of the defendant was to be terminated by the end of December, 2002. The defendant was called upon to vacate the suit property and hand-over the possession of the same by 1st January, 2003. However, the defendant has not vacated the suit property. The defendant has not paid the rent after 1994. According to the plaintiff, he and performa defendants are entitled to mesne profits @ `10,000/- per year w.e.f. 1994 to 2003 till the vacation of the suit property. Suit was contested by the defendant by filing a written statement. She has admitted that late Shri Bankey Lal was earlier owner in possession of the suit property. She has denied that late Bankey Lal had raised orchard in the suit property. According to her, orchard on the suit property was raised by her and not by Shri Bankey Lal and suit house is a farm/agricultural house attached to the suit land and is servient to agricultural and horticultural purposes. According to her, Bankey Lal had inducted her and her husband Madan Mohan Dutt as joint tenant over the suit property on the basis of yearly rent of `17,00/-. She further pleaded that she acquired proprietary rights over the suit property under the H.P. Tenancy and Land Reforms Act. She has denied the issuance of notice dated 30.05.2002. She has also averred that the Civil Court has no jurisdiction to decide the matter and it is the Revenue Court which was competent to decide the lis under the H.P. Tenancy and Land Reforms Act. 3. Plaintiff has not filed any replication. The issues were framed on 13.05.2005. The learned Civil Judge (Junior Division) - 4 - Manali, District Kullu decreed the suit on 27.07.2007. Defendant preferred an appeal before the learned Additional District Judge, Fast Track Court. The same was dismissed on 15.01.2010. Hence, this Regular Second Appeal. 4. This Regular Second Appeal was admitted on the following substantial questions of law: “1. Whether the Courts had the jurisdiction to decide and entertain the suit when the question of ownership under the H.P. Tenancy and Land Reforms Act was involved and should had remanded the same to revenue courts, more specifically when the findings have not been assailed by plaintiff in any court, which has attained finality even in the present proceedings. 2. Whether the suit was not barred by resjudicata when the present controversy regarding agriculture land/garden and Farm House which is subservient to land, had already been decided in previous judgment in Civil Suit No. 5 of 1985 instituted 7.3.1986 having same issue involved in judgment dated 24.4.1986?” 5. Mr. Anand Sharma, learned counsel for the appellant has strenuously argued that both the Courts below have mis- construed and mis-read the oral as well as documentary evidence. According to him, the Civil Court had no jurisdiction to decide the case. He also argued that the suit was barred by resjudicata. 6. Mr. Ajay Mohan Goel, learned counsel for the respondents has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. - 5 - 8. Plaintiff has appeared as PW-1. According to him, the suit house was owned by his father Bankey Lal and it was rented to Madan Mohan Dutt by his father in the year 1973 for yearly rent of `17,00/-. The defendant was not directly inducted as tenant by them, but she was residing in this house. They have accepted the rent from her. The defendant was asked to vacate the suit property, but she did not vacate it. A notice was served upon her under Section 106 of the Transfer of Property Act. A Civil Suit bearing No. 45 of 2000 was also filed, which was decreed. An appeal was preferred before the learned District Judge. He accepted the appeal. Thereafter, fresh notice was issued to the defendant on 30.05.2002 vide Ex. P-A. He has proved postal receipt Ex. P-B. He has also proved the site plan of the suit house Ex. P-C. According to him, despite the issuance of notice, defendant has not vacated the premises. 9. Defendant has appeared as DW-2. According to her, the suit land is agriculture and on a part of it, there is a single storeyed agriculture house with attic and the same is subservient to agricultural and horticultural purpose. Earlier, Bankey Lal was owner in possession of the suit property and he inducted her as well as her husband Madan Mohan Dutt as joint tenants over the suit land and house standing thereon on yearly rent of `17,00/- from the year 1975. She became joint tenant over the suit land and house alongwith her husband Madan Mohan Dutt. The tenancy was created for agricultural and horticultural purposes because Bankey Lal was unable to undertake agricultural and horticultural pursuits over the property. She also testified that after the death of Madan Mohan Dutt, she continued as tenant - 6 - over the suit house/land and used to pay rent of `17,00/- per year. However, the plaintiff refused to accept the rent. She has become owner in possession of the suit land/house under the H.P. Tenancy and Land Reforms Act. She has admitted in her cross- examination that since 1988, she has not paid rent to the landlord and she is also owner of the suit property. She has admitted in her cross-examination that her tenancy has been terminated by the plaintiff by notice Ex. P-A. She has deposed that she has not paid any rent under the H.P. Tenancy and Land Reforms Act. 10. DW-3 Ambi Chand has supported the version of DW- 2. According to him, earlier Bankey Lal was owner in possession of the suit land and he inducted defendant Olive and her husband Madan Mohan Dutt as joint tenants over the suit land and house on yearly rent of `17,00/- in the year 1975. In his cross- examination, DW-3 has admitted that defendant was tenant of the plaintiff for the last 30-31 years at the annual rent of `17,00/-. She was not paying any rent for the last 8 and 9 years. She has also admitted that plaintiff was owner in possession of the house as well as land and the defendant was his tenant. 11. It is evident from the statements discussed hereinabove that late Shri Bankey Lal was owner in possession of the suit property. He has inducted Madan Mohan Dutt as tenant at the annual tent of `17,00/-. Defendant has stopped paying rent. Defendant has also admitted that the tenancy over the suit property has been terminated. A notice has been issued to the defendant vide Ex. P-A on 30.05.2002. The postal receipt has been duly proved, i.e., Ex. P-B. The site plan of the house has also been proved vide Ex. P-C. The defendant has not vacated the suit house - 7 - despite the tenancy was terminated vide notice dated 30.05.2002 vide Ex. P-A. 12. The defendant has not proved the ingredients of adverse possession. It was necessary for her to prove the exact date from which the adverse possession started running qua the suit land. She has taken a contradictory stand. She has admitted the plaintiff to be owner in possession of the suit property. Her occupation was permissive in nature. The defendant had been paying the rent to the landlord. 13. Their Lordships of the Hon’ble Supreme Court in Roop Singh Vs. Ram Singh , (2000) 3 Supreme Court Cases 708 have held that once it was admitted that plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available unless it was asserted that the possessor had hostile animus of retaining possession as an owner. Their Lordships have held as under: “7. It is to be reiterated that under Section 100 of the CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100, CPC. That apart, at the time of disposing of the matter the High Court did not even notice the question of law formulated by it at the time of admission of the second appeal as there is no reference of it in the impugned judgment. Further, fact findings Courts after appreciating evidence held that defendant entered into the possession of the premises as a batai, that is to say, as a tenant and his possession was permissive and there was no - 8 - pleading or proof as to when it became adverse and hostile. These findings recorded by two Courts below were based on proper appreciation of evidence and material on record and there was no perversity, illegality or irregularity in those findings. If the defendant got the possession of suit land as a lessee or under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession. (Re : Thakur Kishan Singh (Dead) v. Arvind Kumar, (1994) 6 SCC 591 : (1994 AIR SCW 4082 : AIR 1995 SC 73)). Hence, the High Court ought not to have interfered with the findings of fact recorded by both the Courts below. 14. Similarly, their Lordships of the Hon’ble Supreme Court in Bhura Mogiya and others Vs. Satish Pagariya and others, (2001) 9 Supreme Court Cases 385 have held as under: “5. Learned counsel then urged that in any case the defendants having remained in possession for a considerable period of time, more than 12 years, thereby acquired title by adverse possession. Admittedly, the defendants came into possession on the basis of agreement, which was a permissible possession. Once the defendants' possession was by virtue of an agreement it is not open to them to take a plea that they acquired title by adverse possession. Permissible possession cannot be converted into adverse possession unless it is proved that the person in possession asserted and acquired adverse title to the property to the knowledge of the true owner for a period of 12 years and above. We do not - 9 - find any merit in the contention of the learned counsel for the appellant. 15. The suit has been filed by the plaintiff for possession. The tenancy of the defendant has been legally terminated on the basis of notice dated 30.05.2002. The courts below have come to the right conclusion that Civil Court has the jurisdiction to try the suit with regard to the suit house. 16. Mr. Anand Sharma, learned counsel for the appellant has strenuously argued that the suit is barred by the principles of resjudicata. He has taken the Court through the copy of amended plaint Ex. DW-1/A, copy of written statement Ex. DW-1/B and copy of judgment dated 15.12.1997, passed by the learned District Judge, Kullu Ex. D-A. 17. The issue raised in Civil Suits No. 5 of 1985 and 02 of 1995 was entirely distinct. The issue of termination of tenancy was not at all involved in these two suits. Following issues were framed by the High Court on 24.04.1986: “(i) Whether plaintiff No. 1 took on rent the entire farm house and orchard situate in Kh. No. 53, measuring 1 bigha 2 biswas? If not, which portion of the aforesaid property was leased out to him? OPP. (ii) Whether the plaintiffs are entitled to recover damages to the tune of `1,95,000/- as per details given in para 10 of the plaint? OPP. (iii) Whether the plaintiffs are entitled to recover possession of the room in dispute and the injunction prayed for? OPP. (iv) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD. (v) Relief. - 10 - 18. Similarly, the plaintiff has also filed Civil Suit bearing Civil Suit No. 45 of 2000, which was partly decreed in his favour on 08.01.2001. However, an appeal was preferred by the defendant before the learned District Judge, Kullu and the judgment of the learned Sub Judge Ist Class, Manali, District Kullu was reversed by the learned District Judge, Kullu on 06.09.2001 by holding that the tenancy of the defendant was not validly terminated. Thereafter a notice has been issued to the defendant vide Ex. P-A on 30.05.2002. Thus, it cannot be held that the present suit is barred by the principle of resjudicata. 19. Now, as far as the judgment dated 08.01.2001 Ex. P-E is concerned, suffice it to say that earlier the plaintiff has instituted a suit against the defendant seeking injunction. The question of termination of the tenancy was not involved in this suit at all. 20. It will be apt at this stage to say that as far as Civil Suits No. 5/1985 and 02/1995 are concerned, these were instituted for recovery of `1, 95, 000/- by the defendant against the present plaintiff, Nakal Bhargav, Kewal Krishan Bhargav, Dhani Ram, Hira Singh and Atama Ram. The claim in the suit was also not the same as in the present suit. 21. There is no merit in the contention of Mr. Anand Sharma, learned counsel for the appellant that the proprietary rights had been conferred upon the defendant under the H.P. Tenancy and Land Reforms Act, since in Misal-hakiyat for the year 2001-2002, there is nothing qua the factum that the defendant has paid any rent. - 11 - 22. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma) Judge November 08, 2011. (bhupender) - 12 -