IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 204 of 2001 alongwith CMP No. 378 of 2004 & CMP No. 809 of 2004. Judgment reserved on : 24.8.2011 Date of decision: 30.9. 2011. Sumna Devi and another …Appellants. Versus Kanshi Ram and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellants : Mr. K.D.Sood, Advocate. For the respondents : Mr. R.K.Gautam, Senior Advocate with Mr. Mehar Chand, Advocate Kuldip Singh , Judge The plaintiffs are in second appeal against judgment, decree dated 1.2.2001 passed by learned District Judge, Hamirpur in Civil Appeal No. 111 of 1993 modifying judgment and decree dated 14.6.1993 passed by learned Sub Judge 1st Class (II), Hamirpur in Civil Suit No. 146 of 1988 but affirming dismissal of the suit. The parties are referred as plaintiffs and defendants in the judgment. 2. The facts, in brief, are that the plaintiffs had filed suit for declaration that they are owners of the land comprised in Khasra No. 1919 measuring 72-04 sq. mtrs. vide jamabandi/Misal Hakiyat 1982-83 situated in Up - Mohal Gaura, Hamirpur ( for short ‘suit land’) 1 Whether reporters of Local Papers may be allowed to see the Judgment ?yes 2 with consequential relief of permanent prohibitory injunction against the defendants. In alternative, decree for possession by way of demolition in case defendants succeed in raising the construction or occupy any portion of the suit land. 3. The further case of the plaintiffs is that as per jamabandi 1982-83 the suit land has been shown in ownership of Braham Dass and Jagat Ram. The plaintiff No.1 has purchased half share of the suit land from previous owners for consideration of ` 2,500/-. The plaintiff No.2 has also purchased the remaining share in the suit land for the same amount. The previous owners were in possession of the suit land and after purchase the plaintiffs are in possession of the suit land. The suit land is Banjar Kadim and, therefore, question of tenancy does not arise. 4. The defendant No.10 Dev Raj had been working as Kanungo at Hamirpur. In connivance with the lower revenue staff, he got the entry in revenue record of his brother Kanshi Ram and his wife Smt. Suresh Kumari against factual position on the spot. The defendant No.10 with the help of family members started causing interference on the suit land by digging the land. They are threatening to raise construction on the suit land. In case defendants succeed in raising the construction or occupy any portion of the suit land then in that eventuality, the plaintiffs are entitled to possession by way of demolition of the structure found on the suit land. On these averments, the suit was filed by the plaintiffs. 5. The suit was contested by the defendants by filing joint written statement in which they took preliminary objections of maintainability. It has been alleged that the nature of the suit land had been changed in the year 1967 by laying pucca foundations over entire 3 suit land. On a part of the foundation, one katchha room was also raised in the year 1967 which collapsed in April, 1988. The defendants No.1 and 2 have raised one pucca room in its place, rest of the foundations laid in the year 1967 were covered by raising pillars and lintel before the filing of the suit. The pleas of estoppel on account of acts and conduct of Jagat Ram and Braham Dass and delay and laches have also been taken. The objection of resjudicata in view of suit No. 113/1988 dismissed on 1.8.1988 has also been raised. It has been pleaded that defendants No.1 and 2 are in adverse possession of the suit land from the end of the year 1966 which was to the knowledge of Jagat Ram and Braham Dass. The objections of improper valuation, jurisdiction, locus-standi and mis-joinder of parties have also been taken. 6. On merits, it has been pleaded that entries in favour of Jagat Ram and Braham Dass as owners are wrong. The defendants No.1 and 2 are in adverse possession of the suit land since the year 1966. It has been stated that even if the plaintiffs have purchased the suit land from Jagat Ram and Braham Dass in that case also Jagat Ram and Braham Dass had no right, title and interest over the suit land at the time of sale as the same stood extinguished and plaintiffs had acquired no better title than Jagat Ram and Braham Dass. It has been admitted that defendant No.10 had been serving in revenue department. 7. The defendants No.1 and 2 had purchased the land adjoining to the suit land. The entries in the revenue record in respect of the suit land in favour of defendants No.1 and 2 are correct. Jagat Ram and Braham Dass were not in possession of the suit land since the end of the year 1966. The suit is misconceived. 4 8. The replication was filed. It has been stated that Jagat Ram had left no interest in the property when he made statement regarding possession of defendants No.1, 2 and such statement was made in connivance with defendants by Jagat Ram. The previous suit has no bearing over the title of the plaintiffs, who reiterated their stand in the replication while denying the case set-up by the defendants. 9. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP 2. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP 3. Whether the suit is not maintainable as alleged? OPD 4. Whether the plaintiffs are estopped from filing this suit as alleged? OPD 5. Whether this suit is barred by the principle of resjudicata as alleged? OPD 6. Whether the suit is hit by the principle of laches and is liable to be dismissed? OPD 7. Whether the plaintiffs have no locus standi? OPD 8. Whether the suit is bad for mis-joinder of parties? OPD 9. Whether the suit is properly valued for the purpose of court fee and jurisdiction, if not, what is the correct value? OP-Parties. 10. Whether defendants No.1 and 2 have become owners of suit land by way of adverse possession as alleged? OPD 5 11. Whether the defendants are entitled for special cost, if so, to what extent? OPD 12. Relief. The issues No.1 to 5, 7, 8 and 10 were answered in negative and issues No. 6, 9 and 11 in affirmative. The suit was dismissed by the trial Court on 14.6.1993. The plaintiffs filed Civil Appeal No. 111/1993 and defendants No. 1 and 2 filed Civil Appeal No. 148/1993 against judgment, decree dated 14.6.1993. The Civil Appeal No. 148 /1993 was allowed and Civil Appeal No. 111/1993 was dismissed by learned District Judge by common judgment dated 1.2.2001, hence plaintiffs have come in second appeal against judgment, decree dated 1.2.2001 which has been admitted on the following substantial questions of law:- 1. Whether the findings of the court below are based on misconstruction of oral and documentary evidence, particularly the sale deeds PW-2A and PW-5A dated 28.7.88 executed by Braham Dass and Jagat Ram through their attorney Sh.Ravinder Kumar and the revocation deed PW-5/D (sic Ex.PW-5/B) dated 3.8.88? 2. Whether the District Judge was right in reversing the findings of the trial court on issue No.10 and in holding that the defendant had acquired title by adverse possession in the absence of alleged ingredients of adverse possession proving the same? 3. Whether the findings of the court below are vitiated for misconstruction and non-consideration of oral and documentary evidence and the suit of the plaintiff is liable to be decreed? 10. The plaintiffs have filed CMP No. 378 of 2004 under Order 39 Rule 2-A read with Section 151 CPC for punishing the defendants for 6 disobeying order dated 9.5.2001 affirmed on 25.6.2001 in CMP No. 304/2001. The plaintiffs have filed CMP No. 809 of 2004 under Order 26 Rule 9 read with Section 151 CPC for a direction to the Patwari Halqua to demarcate the land comprised in Khasra No. 1919 as per jamabandi 1982-83 to ascertain the construction if any raised on the spot. In disobedience application, the plaintiffs have stated that defendants have willfully disobeyed orders dated 9.5.2001 and 25.6.2001 by raising pillars on the third storey on the disputed land comprised in khasra No. 1919. The defendants No.1,3 to 10 have filed joint reply to the disobedience application whereas defendant No.2 has filed separate reply to the disobedience application. They have denied that they have disobeyed any order of this Court. The defendants have also contested CMP No. 809 of 2004 by filing reply and have prayed for dismissal of the application. 11. In CMP No. 378 of 2004 the following issues have been framed:- 1. Whether the respondents are guilty of disobedience of interim order dated 9.5.2001 which was made absolute on 25.6.2001? OPA 2. Relief. The parties have led evidence and produced some documents. 12. I have heard the learned counsel for the parties in the appeal as well as in the applications and have also gone through the record. The substantial questions of law No.1 to 3 are inter-connected, therefore, all of them are taken up collectively for determination. The learned trial Court has decided issues No.1, 2 and 10 in negative. The learned District Judge has reversed the findings of the learned trial Court on issue No.10 7 and held that defendants No.1 and 2 have become owners of the suit land by way of adverse possession. In other words, the plaintiffs have no subsisting title over the suit land as the defendants No.1 and 2 have acquired ownership of the suit land by adverse possession. 13. It is significant to note that the plaintiffs filed Civil Suit No. 146 of 1988 which was dismissed by the learned Sub Judge on 14.6.1993. The Civil Appeal No. 111 of 1993 was filed by plaintiffs and Civil Appeal No. 148 of 1993 was filed by defendants No.1 and 2 against judgment, decree dated 14.6.1993. The learned District Judge dismissed the Civil Appeal No. 111 of 1993 and allowed Civil Appeal No. 148 of 1993 by common judgment dated 1.2.2001 and dismissed the suit of the plaintiffs. In Narhari and others vs. Shanker and others AIR 1953 S.C. 419, the facts were that in one suit, one judgment was given by the trial court and even in the first appeal to the Sadar Adalat, there was only one judgment inspite of there being two appeals by the two sets of defendants. The Supreme Court held that it is now well settled that where there has been one trial, one finding and one decision, there need not be two appeals even though two decrees may have been drawn up. Therefore, in the present case single appeal filed by the plaintiffs against judgment, decree dated 14.6.1993 is competent and maintainable. 14. The parties have produced numerous documents and some documents are filed more than once and some documents are totally irrelevant. Therefore, it is not necessary to refer all the documents in the judgment. There is no denial of the fact that at one point of time one Smt.Rami was the owner of the suit land. This is also clear from Ex.DX-1 jamabandi for the year 1954-55 in which Smt. Rami has been shown 8 owner in possession of khasra No.1093 measuring 14 marlas. In Ex. DX-1, there is a note that vide mutation No. 714 Smt. Rami has gifted land comprised in khasra No. 1093 measuring 14 marlas to Braham Dass and Jagat Ram and the mutation was attested on 30.9.1959. Ex.DX-2 is the jamabandi 1962-63 which indicates that Braham Dass and Jagat Ram are owners in possession of land comprised in Khasra No. 1093 but there is note in Ex.DX-2 indicating that vide mutation No. 1013, the land comprised in Khasra No. 1093/1 measuring 9 marlas was transferred in favour of provincial government and the mutation has been attested on 31.3.1965. 15. Ex.DX-3 is the jamabandi for the year 1967-68 showing land comprised in Khasra No. 2285/1093 measuring 4 kanals owned by Braham Dass and Jagat Ram but in possession of Kanshi Ram and Smt.Suresh Kumari in equal shares as non-occupancy tenants, in rent column it has been stated ‘Bila Lagan Bavaja Bai’. Jamabandi 1972-73 Ex.PC indicates that Khasra No. 2285/1093 measuring 4 kanals owned by Braham Dass and Jagat Ram but in possession of Kanshi Ram and Smt. Suresh Kumari in equal shares as non-occupancy tenants and in column of rent it has been stated ‘Bila Lagan Bavaja Bai’. In Ex.PD jamabandi 1978-79 same entry has been shown as in Ex.PC. 16. Ex.DX-4 is the Misal Hakiyat 1982-83 with respect to old khasra No. 2285/1093 min with equivalent khasra No. 1919 measuring 72.07 sq.mtrs. owned by Braham Dass and Jagat Ram and possessed by Kanshi Ram and Smt. Suresh Kumari. Ex.P-1 is another copy of Misal Hakiyat 1982-83 showing Khasra No. 1919 measuring 72.04 sq.mtrs. owned by Braham Dass and Jagat Ram and possessed by Kanshi Ram 9 and Smt. Sudesh Kumari. Ex.DX-7 is the jamabandi for the year 1989-90 showing same position with respect to Khasra No. 1919 as shown in Ex.DX-4. Ex.D-4 is the copy of rapat No. 546 dated 9.3.1967 of ‘Roznamcha Wakiati’ indicating change in possession noticed during girdwari regarding Khasra No. 1093. In Ex.D-4 no name of particular person has been recorded showing his possession as per change noticed while recording rapat No. 546. It is significant to note here that as per jamabandi 1962-63 Ex.DX-2 khasra No. 1093 is measuring 14 marlas and out of it, land comprised in Khasra No. 1093/1 measuring 9 marlas was mutated in favour of provincial government. In other words, the left over land out of Khasra No. 1093 remained with Braham Dass and Jagat Ram owners. 17. The defendants No.1 and 2 in the written statement have pleaded adverse possession on the suit land since the end of the year 1966. They have pleaded that they laid foundations on the suit land in the year 1967. On one portion, they constructed katchha room which collapsed in April, 1988 and in its place the defendants No.1 and 2 have raised one pucca room and remaining foundations laid in the year 1967 over the suit land were covered by raising pillars and putting lintel before the filing of the suit. The crucial question is whether the defendants No.1 and 2 have pleaded and proved their adverse possession on the suit land. 18. DW-1 Dev Raj is the General Power of Attorney and husband of Smt. Suresh Kumari defendant No.2. He has stated that they had purchased the suit land from Smt. Rami on 9.4.1966 and the vendor had handed over possession of the suit land to them. Thereafter, in the 10 year 1966-67 they laid foundations of 7-8 rooms and constructed one room which collapsed in the year 1988. Reconstruction was started in June/July, 1988 by raising pillars on the foundation and slab was laid on 13.8.1988. The sale deed was not executed as the land was not in the name of Smt. Rami and was owned by Braham Dass and Jagat Ram. 19. DW-1 continued, Smt. Rami had given suit land to Braham Dass and Jagat Ram, at the time of laying foundations Braham Dass and Jagat Ram had not objected. In the revenue record after the sale in their favour, entry was made in the year 1966-67. Their possession on the suit land is unauthorized. They are coming in possession since 9.4.1966. The sale deed which was executed has been misplaced. Jagat Ram had filed a suit against them through Ravinder Kumar which was compromised. Jagat Ram admitted that they are owners in possession of the suit land and he withdrew the suit. The copy of order is Ex.D-3 and copy of compromise is Ex.D-2. In cross-examination, he has stated that they were in possession on the suit land with the consent of Smt. Rami but Braham Dass and Jagat Ram were aware of the position. They took possession with the consent of Smt. Rami, Braham Dass and Jagat Ram. 20. The defendants No.1 and 2 have taken contradictory and confusing stand with respect to their adverse possession on the suit land. They have stated that they had purchased the suit land from Smt. Rami on 9.4.1966. The sale deed could not be executed as the suit land was in the name of Braham Dass and Jagat Ram. DW-1 has also stated that Smt. Rami had given suit land to Braham Dass and Jagat Ram. They took the possession of the suit land with the consent of Smt. Rami, Braham Dass and Jagat Ram. Once the defendants have taken 11 possession of the suit land with the consent of Braham Dass and Jagat Ram predecessors of plaintiffs, then there is no question of their adverse possession on the suit land. The case of adverse possession of the defendants 1, 2 on the suit land has been totally demolished by DW-1 General Power of Attorney of defendant No.2 when he stated that defendants 1 and 2 are in possession of the suit land with the consent of Braham Dass and Jagat Ram. The possession of defendants No.1 and 2 on the suit land with the consent of Braham Dass and Jagat Ram predecessors-in-interest of plaintiffs can never be adverse possession against the plaintiffs. 21. It has come on record that Jagat Ram had filed Civil Suit No. 113/1988 for declaration against defendants No.1 and 2 in which Braham Dass was proforma defendant No.3. The suit was compromised vide Ex.D-2 dated 28.7.1988, in Ex.D-2 it has been stated that Kanshi Ram and Smt. Sudesh Kumari had constructed a katchha house on khasra No. 1919 and khasra No. 1920 which has fallen down and have constructed one pucca room on old foundations. It has further been stated in Ex.D-2 that plaintiffs do not want to press the suit. The Civil Suit No. 113/1988 was dismissed as withdrawn vide order dated 1.8.1988 Ex.D-3. The compromise Ex.D-2 does not advance the case of the defendants No.1 and 2 inasmuch as the suit was dismissed as withdrawn, no declaration was given or other right determined in favour of defendants No.1 and 2 over khasra No. 1919. It cannot be construed that by virtue of Ex.D-3 compromise any title was created or admitted by plaintiffs in favour of defendants No.1 and 2 over the suit land. According to DW-1, defendants No.1 and 2 came in possession of the suit land with the consent of the 12 plaintiffs. The license, if any, granted in favour of defendants No.1, 2 by plaintiffs to occupy the suit land stood terminated with the filing of the suit. 22. In Civil Suit No.113/1988 Local Commissioner was appointed to visit the spot and report about the nature of construction over the land comprised in Khasra No. 1919. The Local Commissioner after visiting the spot, submitted report dated 1.8.1988 Ex.PW-11/A. The Local Commissioner in his report Ex.PW-11/A has given measurement; plinth area 14.7 x 14.7 sq. feet, height of northern wall 10 feet, height of southern wall 8-10 feet. The whole of the construction is new with pucca bricks and cement. There was no flooring, whole of the construction appears to have been raised within 2-3 days as the wet cement used to fix up bricks had not dried up. Apart from one room house under construction, another small construction partially over khasra No. 1920 has been raised. The pillars of about 2 feet height have been raised on Khasra No. 1919. The construction material was lying on the spot. The Local Commissioner report Ex.PW-11/A makes it clear that some construction was raised on Khasra No. 1919 some time in the end of July, 1988. 23. The General Power of Attorney Ex.PW-5/B was cancelled on 3.8.1988 which was in favour of Ravinder Kumar but before that Ravinder Kumar on the basis of General Power of Attorney sold the suit land to plaintiffs vide sale deeds Ex.PW-2/A and Ex.PW-5/A. It is nobody’s case that Ravinder Kumar was not the General Power of Attorney holder of Jagat Ram and Braham Dass. Once Ravinder Kumar was General Power of Attorney of Jagat Ram and Braham Dass, than there is no question of oral termination of General Power of Attorney which was cancelled only 13 on 3.8.1988 vide Ex.PW-5/B but before that Ravinder Kumar being General Power of Attorney holder of Jagat Ram and Braham Dass had sold the suit land comprised in Khasra No. 1919 in favour of plaintiffs vide sale deeds Ex.PW-2/A and Ex.PW-5/A on 2.8.1988. Thus, the plaintiffs became owners of the suit land vide sale deeds Ex.PW-2/A and Ex. PW-5/A. The contrary findings of the Courts below are set-aside. 24. The trial Court did not grant the relief to the plaintiffs by holding that suit is hit by delay and laches. The lower Appellate court held that defendants No.1 and 2 have become owners of the suit land by way of adverse possession which finding is not sustainable in view of above discussion. The question now left is whether the plaintiffs are entitled to relief of possession. The plaintiffs in the plaint have pleaded that in case the defendants succeed in raising construction or occupying any portion, then in such eventuality, the plaintiffs are entitled to possession by way of demolition of structure found at the time of decree. 25. In the written statement, the defendants have stated that they have covered the construction over the pillars by putting slab before 13.8.1988. The suit was filed on 16.8.1988. The position of construction on 1.8.1988 on the suit land was already recorded in Local Commissioner report in Ex.PW-11/A. In the report Ex.PW-11/A, the height of pillars on Khasra No. 1919 has been recorded two feet. It emerges from the evidence on record that construction raised by the defendants on the suit land is RCC construction. In normal circumstances, unless person is running against the time, it is not possible to complete construction and place lintel in 16 days. 14 26. PW-3 B.S.Phool, Advocate has stated that he was appointed as Local Commissioner in the Court. He has proved his report Ex.PW-3/A and site plan Ex.PW-3/B. The perusal of report Ex.PW-3/A indicates that PW-3 visited the spot of the land comprised in khasra No. 1919 on 25.8.1988. The parties were present on the spot. The Local Commissioner found 14 pillars constructed on the spot, shuttering was placed and iron bars in the centre beam were also laid. The pillars were 9 feet in height. The full length of the construction from north to south was 67’– 4”. A single residential house consisting of one room measuring 14’-8” in length situated on southern side of the construction at a distance of 6’-5”. There is no reference of putting of lintel in the report. In other words, even iron bars on the shuttering were not placed when the Local Commissioner visited the spot nor the lintel was laid. On 25.8.1988 the construction on the suit land was in the form of pillars 9 feet in height with shuttering and iron bars laid in the centre beam. It is admitted case of the plaintiffs that now not only lintel has been laid over those pillars but further construction has been raised on the suit land by defendants. 27. In the plaint, the plaintiffs have pleaded that in case the defendants succeed in raising the construction or occupy any portion of the suit land then suit for possession by demolition. It has been proved on record that the defendants after the filing of the suit raised construction on the suit land. The defendants have no right, title or interest over the suit land. They raised construction at their own risk. The