Smt. Amriti Devi vs Shri Jagar Nath and others

Surinder Singh, J.—The present Regular Second Appeal by the defendant, after having lost in both the Courts below was admitted on the following substantial question of law:

1) Whether learned first appellate Court was right in holding that the statement of the general attorney of the appellant could not be relied upon and whether the learned appellate Court was correct in discarding this evidence?

Precisely, the facts giving rise to present appeal are that the respondents, to be referred as "the plaintiffs" filed a suit against the appellant, to be referred as "the defendant" hereafter, with respect to the suit land seeking declaration and possession with consequential relief of permanent injunction.

The defendant claimed adverse possession and her further stand was that her husband was recorded in forcible possession of the suit land in the year 1982-83 and raised the construction thereupon in the year 1968. During the settlement their possession was so recorded which was never objected to by the plaintiffs. Thus, the defendant perfected the title by way of adverse possession.

In replication, the stand taken by the defendant was denied. Thus, on the pleadings of the parties, the learned trial Court framed the following issues:

1) Whether the plaintiffs are entitled to the relief of declaration as prayed? OPP.

2) Whether the plaintiffs are entitled to the relief of possession as prayed? OPP.

3) Whether the suit is barred by limitation? OPD.

4) Whether the plaintiffs are estopped by their acts and conduct? OPD.

5) Whether the defendant is in possession of the suit land for the last more than 12 years and has become owner of the same by way of adverse possession as alleged? OPD.

6) Relief.

After the complete trial, the learned trial Court answered all the issues in favour of the plaintiffs and against the defendant, consequently the suit was decreed. The defendant failed in appeal before the learned first appellate Court, hence the present Regular Second Appeal.

Shri R.K. Gautam, learned Senior Advocate duly assisted by Shri Vikrant Chandel, Advocate, vehemently argued that the learned Courts below did not take into consideration the entries Exts. D1 to D3 in the revenue record which one in favour of the defendant and duly substantiated her plea of adverse possession as testified by DW1 G.P.A. of the defendant.

Contra, learned Counsel for the plaintiffs supported the impugned findings of the Courts below.

To substantiate her case the defendant examined DW1 Brahmu Ram, her son-in-law holding her G.P.A. Ext.DW1/A. He simply stated that over the disputed land the defendant had constructed a dry-latrine in September, 1968 besides her house located on her own land. He further stated that earlier it was cultivable land and now it is lying fallow, which is being used by the defendant as her court-yard having an approach from the road and the same is fenced. He did not even state since when the possession of the defendant had become hostile to that of the real owners. In other words, he failed to prove the possession of the defendant nec vi nec clam nec precario. DW1 was serving in ONGC at Dehradun. The G.P.A. was executed in 1997 after his retirement. He also failed to point out the location of land and surrounding khasra numbers. Surprisingly, he made the statement with respect to the possession of the defendant even prior to the year 1995 when he was not living in and around that place where the suit land is situated but was serving in Dehradun. The defendant did not step into the witness box to substantiate her plea of adverse possession as alleged. Thus her plea remained unsubstantiated and the adverse inference was rightly drawn by the Courts below.

Further the perusal of Jamabandi Ext. D1 does not find mentioned about the dry latrine, which came to be noted in the subsequent Jamabandi Ext. D2 for the year 1978-79. Even the entry recorded in Ext.D1 does not help the defendant in any way being without any status and authority recorded by the Patwari. Its careful perusal also reveals that the husband of the defendant appears to have disputed the possession of the plaintiffs, thus defendant''s husband was recorded as non-occupancy tenant, but the possession is recorded in favour of the landowners. The subsequent entries Ext. D2 and D3 are follow-up entries to the earlier one because of the disputed ownership (Tanaza Malkiat). Therefore, the learned first appellate Court was right in holding that the statement of G.P.A. (DW1) cannot be relied upon to prove the adverse possession of the defendant in absence of the defendant having stepped into the witness box to substantiate the origin of stray entries and proving her case in accordance with law. Thus, the learned first appellate Court was right in discarding the evidence of the defendant. The substantial question of law stands accordingly answered against the defendant.

As a result of the above discussion and consequent answer to the substantial question of law, the appeal is accordingly dismissed. Parties to bear their own costs.