Manohar Lal and Others vs State of Himachal Pradesh

Sureshwar Thakur, J—The instant appeal has arisen out of the judgment and decree rendered by the learned first appellate Court on 31.7.2014 in Civil Appeal No. 36/13 of 2014 whereby the learned first appellate Court while affirming the judgment and decree rendered by the learned trial Court 27.3.2014 in Civil Suit No. 471/1 of 2003 and consequently dismissed the appeal preferred by the appellants/plaintiffs.

The facts necessary for rendering a decision on the instant appeal are that the plaintiffs filed a civil suit before the learned trial Court for seeking declaration to the effect that transfer of land measuring 5 biswas out of khasra No. 546/519, Khata/Khatoni No. 136/169 min, situated in Village Doon in the name of Animal Husbandry Department was illegal, null and void. A consequential relief of permanent prohibitory injunction for restraining the defendant from constructing veterinary hospital in Khasra No. 546/519/141/1 was also sought. It was averred that the plaintiffs were co-owners in joint possession over the land measuring 0-16 bighas comprised in khasra No. 546/519, Khata/Khatoni No. 136/169 min situated in Village Doon, Pargna Sunhani, Tehsil Ghumarwin, District Bilaspur, H.P. by way of adverse possession. It was contended that the revenue entries existing in favour of the defendant were illegal. Defendant-State of H.P. had transferred the land measuring 5 biswas out of total suit land measuring 0-16 bigha comprised in Khasra No. 546/519/141/1 to the department of Animal Husbandry without hearing the plaintiffs, as they were in actual possession of the land for the past more than 30 years. The suit land was adjacent to the house of the plaintiffs, hand-pump and rain shelter and in case the land was transferred for the purpose of opening the veterinary hospital, it would cause nuisance to the plaintiffs. A number of cattle would be brought for treatment there and there were chances of disease spreading because of cow-dung. Foul water would spread in the courtyard of the plaintiffs and the health, safety, comfort and convenience of the plaintiffs would be affected. The matter was taken into consideration by the Pradhan, Gram Panchayat, Berthin, Chhat and many members of Gram Panchayat Kotlu Brahmna. Resolutions were passed by the Panchayat for the construction of the hospital in some other convenient place. Although, the plaintiffs did not admit the defendant as owner, but for the sake of compromise they were ready to exchange their land with that of the defendant, the land of the plaintiffs comprised in Khasra No. 472/141. The plaintiffs were ready to part with equal land from their own land. The land of the plaintiffs was 150 feet away from the suit land which had been transferred to the department of Animal Husbandry. The construction was proposed by the defendant under a political colour. Hence, the suit was filed for seeking the reliefs, mentioned above.

The suit of the plaintiffs was resisted by the defendant by filing written statement taking preliminary objections regarding lack of maintainability, cause of action, locus standi, suit being bad for non compliance of mandatory provisions of Section 80 of the Code of Civil Procedure, estoppels, valuation and jurisdiction. The contents of the plaint were denied on merits. It was asserted that the State of H.P. was owner in possession of the suit land comprised in Khasra No. 546/519, Khata/khatoni No. 136 min/169 min, measuring 55-8 bighas, situated in Village Doon, Tehsil Ghumarwin, District Bilaspur, H.P. Out of this land only 0-5 bigha of land had been transferred to the Animal Husbandry Department. The land comprised in Khasra No. 546/519/141/1, measuring 0-5 bigha out of total land measuring 55-8 bighas, comprised in Khasra No. 546/519 had been transferred in the name of Animal Husbandry Department for the construction of Animal Dispensary Building, Kotlu vide Deputy Commissioner, Bilaspur office order No. BLS-ADRA-1(588)/2002-20895-899 of 05.06.2003 after due verification. Possession of the transferred land had also been given on the spot by the department concerned vide rapat rojnamcha Wakiati No. 511 of 28.07.2003. The identified place was contended to be convenient and proper. The construction was contended to be for the benefit of public at large and was contended to be not causing any inconvenience. There was no question of exchange of land with that of the plaintiffs, as the exchange of land has been banned. The suit is liable to be stayed under Section 10 of the Code of Civil Procedure, as a civil suit qua the same cause of action is pending. Hence, it was prayed that the suit be dismissed.

The plaintiffs filed replication to the written statement of the defendant, wherein, they denied the contents of the written statement and re-affirmed and re-asserted the averments made in the plaint.

On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:-

Whether the transfer of suit land measuring 5 biswa out of Khasra No. 546/519, Khata/Khatoni No. 136/169 min in the name of Veterinary hospital is illegal, wrong, null and void, as alleged?

OPP

1-A Whether the plaintiffs have become joint owners in possession of the suit land by way of adverse possession, as alleged?

OPP

1-B Whether the revenue entries qua the suit land in the name of defendant are wrong and illegal, as alleged?

OPP

Whether opening of the Veterinary hospital near the house of the plaintiffs constructed on part of the land comprised in khasra No. 472/141 is unauthorized and will cause nuisance to the plaintiffs?

OPP

Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed?

OPP

Whether the plaintiffs have no cause of action to file the present suit?

OPD

Whether the plaintiffs have no locus-standi to file the present suit?

OPD

Whether the present suit is not maintainable?

OPD

Whether the present suit is liable to be stayed under Section 10 C.P.C.?

OPD

Whether the plaintiffs have not come to the Court with clean hands and suppressed the material facts from the Court?

OPD

Whether the present suit is bad for non-compliance of mandatory provision under section 80 C.P.C.?

OPD

Whether the plaintiffs have estopped to file the present suit by their acts, conduct, omissions and commissions?

OPD

Whether the present suit is not properly valued for the purpose of Court fee and jurisdiction?

OPD

Relief.

On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs. In appeal, preferred by the appellants/plaintiffs before the learned first Appellate Court, against the judgment and decree of the learned trial Court, the learned first Appellate Court affirmed the findings, recorded by the learned trial Court and consequently, dismissed the appeal preferred by the plaintiffs/appellants.

Now the plaintiffs/appellants have instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by both the Courts below. When the appeal came up for admission on 6.1.2015, this Court, admitted the appeal instituted by the plaintiffs against the judgments and decrees rendered by the Courts below, on, the hereinafter extracted substantial questions of law:-

Whether the learned Courts below could have dismissed the suit of the plaintiffs ignoring the contents of Report of the Deputy Director Animal Husbandry, Bilaspur i.e. Ext. RPW-1/A?

Whether the construction of veterinary hospital on the suit land is in public interest?

Whether the learned Courts below would have dismissed the suit of the plaintiffs in view of the fact that the plaintiffs were ready and willing to part with equal land from their own land for the construction of veterinary hospital?

Whether the findings of the Courts below are vitiated being based on misreading and misconstruction of oral and documentary evidence?

Substantial Questions of Law No. 1 to 4:

Since all the aforesaid extracted substantial questions of law are entwined, hence, they being interlinked, necessitate a conjoint/cumulative decision.

The relief, as agitated by the plaintiffs-appellants in the plaint, was anchored upon the factum of the plaintiffs-appellants having by adverse possession embedded in the factum of theirs while having remained continuously in possession of the suit land with an animus possidendi for the past 38 years, become absolute owners thereof. However, the aforesaid concert of the appellants-plaintiffs to foist a claim qua the suit land besides thereupon seek the relief as prayed for in the plaint stands discounted as aptly concluded by both the Court below by an enunciation in the classification column of Jamabandi qua the suit land comprised in Ext. DX-9 of it being Charand Dehati Jungle. The aforesaid entry in the classification column of the Jamabandi apposite to the suit land is per se enunciative besides personificatory of the fact that the suit land when hence having remained uncultivated, the espousal by the plaintiffs-appellants of theirs having remained in possession thereof stands belied. Furthermore, the admission in the cross-examination of PW-1 of the suit land being Government land and its being in possession of the Government, constrains this Court to conclude that the portrayal in Ext. DX-9, copy of the Jamabandi qua the suit land of it being owned and possessed by the State of Himachal Pradesh stands acquiesced to, by the plaintiffs. In sequel then when no cogent evidence of probative worth has been adduced by the plaintiffs-appellants to dislodge the presumption of truth imputable to the entry in Ext. DX-9 depicting the factum of State of Himachal Pradesh being owner in possession of the suit land. As a concomitant, especially when PW-1 acquiesces to the factum of the suit land being owned by the Government besides it being in the letters possession, the efficacy of the depiction in Ext. DX-9 of the suit land being owned and possessed by the Government of Himachal Pradesh gains immense succor. Preponderantly, the aforesaid discussion lends amplification to the conclusion that the plaintiffs-appellants have been unable to de-establish the factum of the entries recorded in Jamabandi Ext. DX-9 with a portrayal therein of the State of Himachal Pradesh being owner in possession of the suit land. The effect of the plaintiffs-appellants having been unable to throw overboard by adducing cogent evidence the efficacy of the entries qua the suit land comprised in Ext. DX-9 or theirs being hence unworthy of credence, fosters a conclusion that the entries qua the suit land comprised in Ext. DX-9 with a depiction therein of State of Himachal Pradesh being its owner in possession acquire finality as well as conclusiveness. The sequelling effect of the plaintiffs-appellants having abysmally failed to belie the efficacy of the entries recorded in Ext. DX-9 with a revelation therein of the State of Himachal Pradesh being owner in possession of the suit land is that it constrains a concomitant inference of hence the plaintiffs-appellants having been unable to prove their assertion of theirs having become owners of the suit land by way of adverse possession. Preponderantly the statement in the cross-examination of PW-1 underscoring besides underlying the factum of the State of Himachal Pradesh being owner of the suit land, for reiteration, spells doom to the espousal of the plaintiffs-appellants of theirs having continuously for the last 38 years with an animus possidendi remained in possession of the suit land, as such, theirs having by adverse possession become absolute owners thereof. Therefore, the inferences and conclusions drawn by the learned first Appellate Court on an appraisal of the evidence on record while dis-approbating the assertion of the plaintiffs of theirs having become owners of the suit land by way of adverse possession do not merit any interference.

The upshot of the above is that the act of the defendant-respondent in having out of the suit land denoted in Ext. DX-9 alienated 5 Biswas of land to the Animal Husbandry Department for constructing a Veterinary Dispensary cannot hence be concluded to be suffering from any illegality especially with theirs being owners in possession of the suit land.

The learned counsel for the plaintiffs-appellants has contended with much force that in view of the communications in RPW-1/A that in the event of a Veterinary Dispensary being raised upon the suit land it would beget inconvenience to the owners of buildings/houses situated in its vicinity besides would entail the rearing of hindrances at their behest in the carrying out of construction of the Veterinary Dispensary, to obviate which eventualities the proposal of exchange as meted out by the plaintiffs in the plaint qua exchange of Khasra No. 472/141/1 owned by them with the suit land for raising thereon the Veterinary Dispensary is a justifiable proposal. He contends that the discarding by the Courts below of the communications in RPW-1/A has sequelled gross miscarriage of justice. For testing the sinew of the contention of the learned counsel for the plaintiffs/appellants, it is imperative to advert to the remonstrance projected by the plaintiffs in the plaint to the construction of the veterinary dispensary upon the suit land. In the plaint the remonstrance of the plaintiffs to the raising of construction of a veterinary dispensary upon the suit land is reared besides anvilled upon the score of its sequelling nuisance to the plaintiffs-appellants. However, the portrayal in Ext. RPW-1/A is in discordance to it besides omits to underscore therein that the construction of the Veterinary Dispensary on the suit land would cause nuisance to the plaintiffs-appellants. The communication in RPW-1/A of the construction of the Veterinary Dispensary on the suit land begetting difficulties and inconveniences to the owners of the houses adjacent to it, cannot be construed to be conveying that hence it would beget nuisance to them. Consequently, on the score of the existence of communications in Ext. RPW-1/A of construction of Veterinary Dispensary on the suit land begetting difficulties and inconveniences to the plaintiffs-appellants, cannot be construable to evidence qua the factum of its construction engendering nuisance to the plaintiffs-appellants as untenably contended by the learned counsel for the plaintiffs-appellants. Apart there from, when the Deputy Commissioner, Bilaspur as proven by Ext. RPW-1/A has effectuated therein the transfer of the suit land to the Animal Husbandry Department for construction of a Veterinary Dispensary after appropriate verification. Naturally then, with the aforesaid being at the helm of affairs of the District Administration and who is to be presumed to have ordered the transfer of the suit land to the Animal Husbandry Department only after adjudging besides evaluating the appropriateness of the site for construction of a Veterinary Dispensary building, necessarily then the communications in Ext. RPW-1/A of the suit land being rather the inappropriate site fades into oblivion. Even otherwise, the factum of the suit land being not an appropriate site for the construction of the building of Veterinary Dispensary was not an issue over which the parties were at lis vis-�-vis the land proposed to be exchanged with it by the plaintiffs-appellants obviously when an issue qua the aforesaid factum did not come to be struck nor hence evidence came to be adduced, it would not be appropriate for the learned counsel for the plaintiffs-appellants to argue before this Court at this stage that the decision of the Deputy Commissioner, Bilaspur transferring the suit land to the Department of Animal Husbandry for raising a building for treatment of animals is neither a sagacious nor a well thought decision. The substantial questions of law are accordingly answered.

In view of above discussion, this Court finds no merit in the instant appeal which is accordingly dismissed and the judgments and decrees of the learned Courts below are affirmed and maintained. Pending application(s), if any, shall also stand disposed of. No order as to costs. Records be sent back forthwith.