Aash Mohammad v. Gram Panchayat,Ahemadabass & Anr.

CORAM: Hon'ble Mr.Justice Rakesh Kumar Garg. -- Present: Mr.Satish Chaudhary, Advocate, for the appellant. Rakesh Kumar Garg,J. -- This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for permanent injunction restraining the defendant-respondents from interfering in the peaceful possession of the plaintiff-appellant over the suit land, and also from leasing out the suit land, was dismissed. As per the averments made, the plaintiff-appellant was in actual possession of the suit land for the last more than 35 years continuously, without any interruption and was in a long settled possession. The possession of the appellant over the suit land was open, hostile, within the knowledge of the defendant-respondents and the whole of the world, and thus the plaintiff-appellant had acquired the right of ownership over the suit land by way of adverse possession.

It was further alleged that the suit land was under the possession and cultivation of Bhondedars who migrated to Pakistan and the land vested in Araji Matruka. The plaintiff-appellant was gair-marusi Doyam over this land. The respondents were bent upon to dispossess the plaintiff-appellant from his actual cultivating possession RSA No.648 of 2010 2 over the land in dispute illegally and forcibly, hence this suit. Upon notice respondent No.1 appeared and filed written statement. However, defendant-respondent No.2 did not file any written statement and ultimately his defence was struck of. In the written statement respondent No.1 raised various preliminary objections. It was further submitted that plaintiff-appellant never remained in possession of the suit land nor he had any right, title or interest in the aforesaid land and the suit was liable to be dismissed. It was further pleaded that Gram Panchayat was owner in possession of the suit land.

The averments with regard to adverse possession were false and frivolous and the question of becoming the owner in possession of the appellant does not arise. The claim of the plaintiff- appellant that he was a gair marusi Doyam under the Bhondedars and Araji Matruka was also denied, and dismissal of the suit was prayed. No replication was filed to the written statement filed by respondent No.1. On appreciation of evidence and after hearing the learned counsel for the parties, the trial Court found that the appellant had taken two contradictory stand i.e. one being owner of the suit land by way of adverse possession and the second being gair marusi Doyam ( i.e. non occupancy sub tenant of the Custodian Department), and thus the appellant was estopped from filing the suit by his own act and conduct, as he had concealed material facts from the Court and had not come to the Court with clean hands, and dismissed the suit.

Feeling aggrieved from the aforesaid judgment and decree of the trial Court the plaintiff filed an appeal before the lower appellate Court. It was submitted on behalf of the appellant that his possession over the suit RSA No.648 of 2010 3 land was fully proved by the revenue record and, therefore, he was entitled to the decree as he never surrendered the possession of the suit land and he was never ejected by any competent Court of law. However, the lower Appellate Court found that as per the evidence on record possession of the plaintiff-appellant was shown as open, without paying any rent to Gram Panchayat and he was in illegal possession of the same. It was further noticed that the appellant had failed to produce any evidence to the effect that after 3.8.1987 how he came into possession of the suit land. Thus, concurring with the finding of the trial Court, the appeal of the plaintiff- appellant was dismissed by the first Appellate Court.

Still not satisfied the appellant has approached this Court by way of the instant appeal. Learned counsel for the appellant has vehemently argued that it is proved from the revenue record Ex.P1 to P7 that appellant is in actual physical possession of the suit land and presumption of truth is attached to the revenue record regarding possession. The aforesaid documentary evidence has not been rebutted by the respondents and, therefore, in view of the aforesaid finding, the appellant was entitled to the decree for permanent injunction being in possession over the suit land for the last more than 35 years and thus the judgment and decrees of the Courts below are liable to be set aside. On the basis of the aforesaid arguments, learned counsel for the appellant has submitted that substantial question of law which arises in this appeal is “Whether the Courts below have misinterpreted and have not appreciated the evidence on record”.

RSA No.648 of 2010 4 I have heard the learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. It is not in dispute that the appellant has taken two contradictory stand in support of his case i.e. being owner in possession on the basis of adverse possession and being in possession of the suit land being a sub tenant of non occupancy tenants. However, it may be noticed here that the appellant is liable to be non suited on both the grounds. It is well settled that suit by a plaintiff for declaration to the effect that he has become owner in possession on the basis of adverse possession is not maintainable. Even the plea of the appellant that he is entitled to permanent injunction being in possession for a continuous period of 35 years is liable to be rejected on the ground that he has been found to be in illegal possession under the respondent-Gram Panchayat.

Once that is so, no injunction can be granted against the true owner as decided by this Court in the case of Sukhwant Singh v. Divisional Forest Officer, RSA No.3800 of 2004 decided on 2.4.2009. In view of the aforesaid discussion, I find that no substantial question of law arises as pressed by the learned counsel for the appellant. No merit. Dismissed. (Rakesh Kumar Garg) Judge February 11, 2010