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2026 DAILYLAW 16523 (HP)

Anil Kumar v. Lokha Ram

2026-04-06

Romesh Verma

body2026
JUDGMENT : Romesh Verma, J. The present appeal arises out of judgment and decree as passed by learned District Judge, Hamirpur, dated 31.08.2017, whereby the appeal filed by the present appellants has been dismissed and the judgment and decree as passed by learned Civil Judge (Junior Division), Court No.III, dated 01.12.2015, whereby the suit filed by the appellant was ordered to be dismissed, have been affirmed. 2. The facts of the case are that the plaintiffs/appellants filed a suit under Sections 5 and 6 of the Specific Relief Act, 1963 for possession of land comprised in Khasra No.1181/1 and 1181/2, measuring 17.60 and 11.44 Sq Mts. respectively, total measuring 29.04 Sq Mts. against the defendant/respondent. 3. It was averred in the plaint that the defendant is the real uncle (chacha) of the plaintiffs and in the year 2000-2001, he illegally and forcibly raised one room and a Palli in the absence of the plaintiffs. Father of the plaintiffs late Shri Bakshi Ram objected to the same, upon which the defendant/respondent assured that he was falling short of the land and shall vacate the suit land very soon but he did not fulfill his promise and did not vacate the same. The plaintiffs moved an application for demarcation before the Assistant Collector, 2nd Grade, Hamirpur which was ultimately decided on 09.08.2008 in Revenue Case No.159/07, titled Sunil Kumar vs. Principal Polytechnic College and others. The defendant was requested number of times to admit the genuine claim of the plaintiffs and to handover the vacant possession of the land so encroached as per order of the Revenue Officer. The cause of action arose to the plaintiffs for the first time in the year 2000-2001 when the defendant illegally and forcibly raised one room and a Pallli over the suit land in the absence of the plaintiffs. Therefore, it was prayed that decree for possession of the suit land be passed in favour of the plaintiffs and against the defendant. 4. The suit was contested by the defendant/respondent by raising various preliminary objections such as maintainability, cause of action, limitation, estoppel etc. On merits, it was stated that the suit land and the shop was purchased by the defendant from his father late Shri Mor Ram, who was grand-father of the plaintiffs. 4. The suit was contested by the defendant/respondent by raising various preliminary objections such as maintainability, cause of action, limitation, estoppel etc. On merits, it was stated that the suit land and the shop was purchased by the defendant from his father late Shri Mor Ram, who was grand-father of the plaintiffs. During the year 1988, an agreement was executed by late Shri Bakshi Ram, father of the plaintiffs in favour of defendant Lokha Ram and the defendant had paid the cost of suit land for a sum of Rs.10,000/- to late Shri Mor Ram, grandfather of the plaintiffs. The said agreement was executed between the parties on 03.03.1988 in the presence of father and grandfather of the plaintiffs. It was averred that the construction over the suit land was already made by the defendant prior to the year 1988 and the suit land, including, lintel and shop was already in the actual and physical possession of the defendant prior to the year 1988. It was further stated that the plaintiffs are very much aware about the execution of the agreement dated 03.03.1988 between the grandfather of the plaintiffs and the present defendant. The construction over the suit land was raised prior to 1988 and the expenses of the construction were incurred by the defendant after purchasing the suit land from the grandfather of the plaintiffs. Therefore, it was prayed that the suit filed by the plaintiffs be dismissed. 5. The plaintiffs filed replication and the averments as made in the plaint were reiterated. 6. Learned trial Court framed issues on 10.10.2011 in the following manner: “1. Whether the plaintiffs are entitled for decree of possession, as alleged? OPP. 2. Whether the suit is not maintainable in the present form? OPD 3. Whether plaintiffs have no cause of action to file the present suit? OPD 4. Whether the plaintiffs are estopped to the present suit by their own act and conduct? OPD 5. Whether the suit is time barred? OPD 6. Relief.” 7. Learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide its judgment and decree dated 1st December, 2015 dismissed the suit, as filed by the appellants/plaintiffs. 8. Feeling dissatisfied, the plaintiffs/appellants preferred an appeal in the Court of learned District Judge Hamirpur on 14.01.2014. OPD 6. Relief.” 7. Learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide its judgment and decree dated 1st December, 2015 dismissed the suit, as filed by the appellants/plaintiffs. 8. Feeling dissatisfied, the plaintiffs/appellants preferred an appeal in the Court of learned District Judge Hamirpur on 14.01.2014. Learned First appellate Court vide its judgment and decree dated 31.08.2019 dismissed the appeal preferred by the plaintiffs/appellants and the findings as returned by the learned trial Court were affirmed. 9. Still feeling aggrieved by the judgments and decrees as passed by the learned Courts below, the plaintiffs/appellants have preferred the present regular second appeal. 10. This Court on 09.05.2018 admitted the appeal on the following substantial questions of law: “1. Whether the learned Courts below have not appreciated the sale deed, Ext. PW-3/A correctly and the law relating to the registration of documents has not been applied correctly, so the findings are perverse? 2. Whether the learned Courts below have given findings without appreciating the facts and the law correctly and to its true perspective, so the findings are perverse?” 11. I have heard learned counsel for the parties and have also gone through the case file. 12. It is contended by Mr.Surender K. Sharma, learned counsel for the plaintiffs/appellants, that the judgments and decrees as passed by learned Courts below are perverse and liable to be quashed and set aside. He has submitted that the learned Courts below have wrongly dismissed the suit filed by the plaintiffs for possession, even though, as per revenue record, he is shown to be owner-in-possession of the suit land. He has further submitted that after accepting the present appeal, the suit of the plaintiffs deserves to be decreed. 13. On the other hand, Ms. Vishali Lakhanpal, learned vice counsel Mr. Ramakant Sharma, Advocate, has defended the judgments and decrees as passed by learned Courts below and submitted that on the basis of agreement Ext DW-1/A, the suit land was purchased by the defendant for a consideration of Rs.10,000/- in the year 1988. She has submitted that although the agreement was executed on 03.03.1988, the defendant was in possession of the suit land prior to that date. She has submitted that although the agreement was executed on 03.03.1988, the defendant was in possession of the suit land prior to that date. She has further submitted that the present suit was filed by the plaintiffs on 08.04.2009, whereas the agreement/ikrarnama was executed in the year 1988.Therefore, the suit as filed by the plaintiffs is hopelessly time barred. On the basis of agreement, the defendant is owner-in-possession of the suit property. 14. The plaintiffs have filed the suit before the learned trial Court for possession on the basis that they are owners-in- possession of the suit property and that this status is reflected in of revenue records. It was submitted that in the year 2000-2001, the defendant constructed a room and a shed while the plaintiffs were not present on the spot. Although, the defendant had assured them that he would vacate the suit land, however, he has failed to do so. It is further the case of the plaintiffs that in order to verify the factual position on the spot, demarcation of the suit land was got done by the plaintiffs and it was found that the defendant is occupying the suit land unauthorized and illegally. Therefore, the plaintiffs have approached the Court for grant of decree of possession against the defendant. 15. On the other hand, it is the case of the defendant that the suit land was sold vide agreement/ikrarnama Ext DW-1/A for consideration of Rs.10,000/- by the grandfather of the plaintiffs and father of the defendant, late Shri Bakshi Ram. It is the case of the defendant that during the lifetimes of late Mor Ram and Bakshi Ram, the plaintiffs did not file any suit and after the death of said persons and in order to wriggle out of the said ikrarnama/agreement, the present suit for possession has been filed. It is the case of the defendant that by virtue of ikrarnama/agreement dated 03.03.1988, he has purchased the suit land and thereafter has constructed the structure over the same. 16. In order to corroborate their case, the plaintiffs examined PW-1 Braham Dass. In his examination-in-chief, he stated that he had served as the President of the Gram Panchayat for three terms and personally knew the father of the plaintiffs. He stated that both the parties are claiming their title over the suit land. 16. In order to corroborate their case, the plaintiffs examined PW-1 Braham Dass. In his examination-in-chief, he stated that he had served as the President of the Gram Panchayat for three terms and personally knew the father of the plaintiffs. He stated that both the parties are claiming their title over the suit land. He further stated that he could not say that the defendant had illegally constructed Palli over the suit land. In his cross-examination, he admitted that the electricity bill and house tax pertaining to the house, which has been constructed over the suit land, are being paid by the defendant. He stated that he cannot say that this house was constructed in the year 1988. 17. The plaintiff examined Roshan Lal as PW-2, who stated that the suit land is owned by the plaintiffs. He further stated that, after dismantling of the old house, the plaintiffs constructed a new house on the suit land. During his cross- examination, he stated that he could not say that the room and the Palli was constructed by the defendant. He also stated that he is residing approximately 8 Kms away from the suit land. 18. PW-3 is the statement of Purkhi Ram. He stated that he had demarcated the suit land as a Field Kanungo on the orders of the Assistant Collector 2nd Grade, Hamirpur. According to him, certain portion of the suit land was found to be in possession of the defendant. In his cross-examination, he has admitted that the demarcation was not carried out in the presence of the defendant. 19. The plaintiff Anil Kumar, appeared in the witness box as PW-4. He reiterated the contents of the plaint and stated that the defendant had unauthorizedly encroached upon the suit land. He further stated that the said encroachment is depicted in demarcation report marked as Ext. PW-3/C. During his cross-examination, he has admitted that the room constructed on the suit land and the electricity connection within it, were installed by the defendant. He further admitted that the electricity connection is prior to 1988. He also admitted that he filed the suit only after the death of Mor Ram and Bakshi Ram. He further admitted that in the demarcation proceedings, the defendant was not made a party. He denied that the suit was instituted in order to harass the defendant. 20. He further admitted that the electricity connection is prior to 1988. He also admitted that he filed the suit only after the death of Mor Ram and Bakshi Ram. He further admitted that in the demarcation proceedings, the defendant was not made a party. He denied that the suit was instituted in order to harass the defendant. 20. In order to rebut the case of the plaintiffs, the defendant examined Munshi Ram as DW-1. In his examination-in- chief, he has stated that he is working as a Petition Writer in Galore Tehsil and earlier worked as a Petition Writer in Hamirpur Tehsil. He brought the summoned record and as per the record, the agreement is entered at Serial No.201 of the register. He stated that the agreement Ext. DW-1/A is signed by Bakshi Ram and the same can be deciphered from Mark.B. Mark-C is the signature of Mor Ram and Mark-D is the signature of Sant Ram. All of them had appended their signatures in his presence and that Ext. DW-1/A was written and signed by him. His signatures on Ext. DW-1/A is encircled in red. He stated that the defendant had paid a sum of Rs.10,000/- in his presence. During his cross- examination, when a question was put to him stating that the said agreement Ext.DW-1/A cannot be termed as sale deed, this witness stated that since the agreement was executed between the family members, it was executed orally. 21. The defendant himself entered the witness box as DW-2. He stated that the suit land comprises of Khasra No. 1181 and that he has constructed a house upon it. This Khasra was purchased by the defendant from his father for a sum of Rs.10,000/- in the year 1988. He has been in possession of the suit land since 1980-1981. The agreement to sell was prepared by his brother Bakshi Ram, who is the father of the plaintiffs, in the year 1988. The said agreement was prepared in the tehsil office and at that relevant time, the grandfather of the plaintiffs Mor Ram, the brother of the defendant Bakshi Ram and Sant Ram were present. The agreement was written by Munshi Ram and all of the aforesaid persons had appended their signatures to the said agreement. The electricity meter has been installed in the said house, and electricity bills are Ext. The agreement was written by Munshi Ram and all of the aforesaid persons had appended their signatures to the said agreement. The electricity meter has been installed in the said house, and electricity bills are Ext. DW-1/B to Ext.DW-2/F. In his examination-in-chief, he stated that he is paying the house tax for the last more than 25-30 years. The receipts for the house tax are marked as Ext.DW-2/G to Ext.DW-2/K. In the year 2000-2001, nothing was done over the suit land. He stated that no sale deed was registered as the land was very meagre. 22. The defendant examined DW-3 Sohan Chand to support his case. He stated that over Khasra No.1181, the defendant is in possession of the same where he has constructed a cow shed and is also keeping his cattle on the same. 23. The plaintiffs, in order to support their case, have placed on record copies of demarcation reports Ext. PW-3/A, Ext.PW-3/B and Naksha Tafabat Ext.PW-3/C. A perusal of demarcation report reveals that the defendant was neither arrayed as a party respondent in those proceedings nor he was associated with the same. 24. The defendant, in order to establish his case, has placed on record a copy of agreement dated 03.03.1988 as Ext. DW-1/A This agreement was executed between the parties and by virtue of the it, the grandfather of the plaintiffs sold the land to the defendant in the presence of Shri Bakshi Ram (father of plaintiff), who appended his signatures over the same. 25. As argued by learned counsel for the respondent, the agreement was executed in the year 1988, and the suit was filed in the year 2009 after a lapse of more than 21 years. Learned first appellate Court has rightly observed that as per Section 65 of the Limitation Act, the limitation period for filing suit for possession is 12 years. However, in the present case, the suit itself is hopelessly time barred. Therefore, it deserves to be rejected on the ground of limitation. 26. Perusal of agreement Ext. DW-1/A reveals that it was entered between the members of same family. Mor Ram is the father of the defendant and grandfather of the plaintiffs, and Bakshi Ram is the father of the plaintiffs and brother of the defendant. Therefore, it deserves to be rejected on the ground of limitation. 26. Perusal of agreement Ext. DW-1/A reveals that it was entered between the members of same family. Mor Ram is the father of the defendant and grandfather of the plaintiffs, and Bakshi Ram is the father of the plaintiffs and brother of the defendant. The same has been duly signed by Mor Ram, Bakshi Ram and the present defendant and a sum of Rs.10,000/- was paid as sale consideration to Mor Ram. The defendant has been able to establish that, by virtue of said agreement, he is in possession of the suit property. Although, it is also an admitted fact that this agreement does not confer any title, it can nonetheless be used for the collateral purpose of adjudicating the point with respect to the possession of the suit property. The very case of the plaintiffs that the defendant has raised the construction in the year 2000-2001 behind their backs is not substantiated by the evidence on record. Agreement Ext. DW-1/A has been proved by leading cogent and authentic evidence and the execution of the same is duly proved. 27. Learned counsel for the defendant has vehemently stated that based on the principles of estoppel and acquiescence, the plaintiffs are estopped from filing suit for possession against the defendant in view of the execution of agreement Ext. DW-1/A. She stated that once the agreement to sell is duly proved and the payment of Rs.10,000/- is confirmed to have been paid to late Mor Ram, the plaintiffs cannot be permitted to file the present suit after elapse of more than 21 years. She further stated that based on the strength of this agreement, the defendant is in possession of the suit land. Therefore, the plaintiffs are estoped from agitating the matter after 21 years, especially after the death of their grandfather and father, who were the signatories to said agreement. The plaintiffs admittedly did not file any suit during the lifetimes of Mor Ram and Bakshi Ram. From the perusal of agreement Ext. DW-1/A, it is clear that they were the signatories of the agreement. Now, after their death, the plaintiffs have become wiser and filed the suit for possession against the defendant. The conduct of the plaintiffs reveals that in order to harass the defendant, the present suit has been filed on the strength of revenue record. 28. DW-1/A, it is clear that they were the signatories of the agreement. Now, after their death, the plaintiffs have become wiser and filed the suit for possession against the defendant. The conduct of the plaintiffs reveals that in order to harass the defendant, the present suit has been filed on the strength of revenue record. 28. The plaintiffs cannot take any advantage of or receive any help from the demarcation report, as it has been admitted by PW-3 Purkhi Ram that the demarcation was not got conducted in the presence of the defendant. Once, the demarcation has been conducted at the back of the defendant, then no reliance can be placed upon the same. 29. Learned Courts below have concurrently held that the plaintiffs have failed to prove the cause of action against the defendant. Therefore, the suit has rightly been dismissed by learned Courts below. The defendant, in his deposition, has stated that since the land is very meager, therefore, the sale deed could not be executed by him qua the same. The plaintiffs have not approached the Court with clean hands and they have not disclosed the material particulars before the Court. Therefore, their suit has rightly been rejected by learned trial Court and affirmed by learned first appellate Court. On the strength of agreement Ext. DW-1/A no relief can be granted to the plaintiffs. 30. The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under: “18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. ( AIR 1962 SC 1314 ) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. "19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. "19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.” 31. Reference in this regard is made to the judgment of the Hon’ble Apex Court in Navaneethammal vs. Arjuna Chetty AIR 1996 SC 3521 , wherein it has been held as under: “10. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciating the evidence just to replace the findings for the lower courts. 20. In our considered view the lower Appellate Court has fairly appreciated the evidence in the above background and has reached the conclusion that the suit was not barred by Limitation. Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the First Appellate Court was based on no material.” 32. Similarly, the Hon’ble Apex Court in Kshitish Chandra Purkait vs. Santosh Kumar Purkait and others (1997) 5 SCC 438 has held as under: “10. Similarly, the Hon’ble Apex Court in Kshitish Chandra Purkait vs. Santosh Kumar Purkait and others (1997) 5 SCC 438 has held as under: “10. We would only add that (a) it is the duty cast upon the High Court to formalate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercises its jurisdiction under the proviso to sub-section (5) of Section 100 C.P.C in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation or abdication of the duty cast on Court; and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has to exercise its jurisdiction under Section 100 CPC should always be borne in mind. We are sorry to state that the above aspects are seldom borne in mind in many cases and second appeals are entertained and/or disposed of, without conforming to the above discipline. 11. The guidelines to determine as to what is a "substantial question of law" within the meaning of Section 100 CPC, have been laid down by this Court in a Constitution Bench decision in Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd There is also a later decision of this Court in Mahindra and Mahindra Ltd. v. Union of India3. It is unnecessary to deal at length with that aspect any further.” 33. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others , AIR 1999 SC 2213 , the Hon’ble Supreme Court has held as under: “5. It is not within the domain of the High court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate Court. In Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others , AIR 1999 SC 2213 , the Hon’ble Supreme Court has held as under: “5. It is not within the domain of the High court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate Court. It is true that the lower appellat Court should not ordinarily reject witnesses accepted by the trial court, in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 34. In Civil Appeal No.5131 of 2025, titled as R. Nagaraj (dead) through LRs and another vs. Rajmani and others, the Hon’ble Supreme Court held as under” “7. By the impugned judgment and order and without answering anything on the substantial questions of law framed/formulated, absolutely in a casual manner, the High Court has allowed the Second Appeal and has set aside the concurrent findings recorded by both the courts below and thereafter has remanded the matter to the learned trial Court permitting the original plaintiff to amend the plaint and pray for fixation of the boundary. 9. Having heard learned counsel for the respective parties and having gone through the impugned judgment and order passed by the High Court, we are constrained to observe that the manner in which the High Court has dealt with the Second Appeal under Section 100 of the CPC is not appreciable at all. 9. Having heard learned counsel for the respective parties and having gone through the impugned judgment and order passed by the High Court, we are constrained to observe that the manner in which the High Court has dealt with the Second Appeal under Section 100 of the CPC is not appreciable at all. From the impugned judgment and order passed by the High Court, it appears that the High Court has exercised the powers as if the High Court was deciding the Writ Petition under Article 226 of the Constitution of India. The High Court has not appreciated at all that the High Court was deciding the Second Appeal under Section 100 of the CPC and that too against the concurrent findings of fact by both the courts below, which were, as such, on appreciation of evidence on record. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable. 11. At the cost of repetition, it is observed that the High Court was dealing with the Second Appeal under Section 100 CPC and the concurrent findings recorded by both the courts below which were on appreciation of evidence on record. Neither at the stage of deciding the suit nor even before the first Appellate Court even such a prayer was made to amend the plaint, which is now permitted by the High Court, despite the fact that earlier in the suit during the course of trial, the plaint was amended. Under the circumstances also, the impugned judgment and order passed by the High Court is unsustainable.” 35. In the present case, the findings as rendered by the Courts below are findings of fact which do not call for any interference. The substantial questions of law are answered accordingly. 36. Consequently, the present appeal being devoid of any merit deserves to be dismissed and the same is accordingly dismissed along with pending application(s), if any.