Punjab-Haryana High Court
Bhulla Alias Bhola vs Relu (Since Deceased Represented By His ... on 20 January, 2014
Author: Rajive Bhalla
Bench: Rajive Bhalla
Regular Second Appeal No.1697 of 1987 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Regular Second Appeal No.1697 of 1987
Date of Decision: 20.1.2014
Bhulla alias Bhola ..Appellant
versus
Relu (since deceased represented by his LRs) ..Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. Ranjit Saini, Advocate, for the appellant.
Mr. S.N.Saini, Advocate, for the respondents.
RAJIVE BHALLA, J.
The appellant prays that judgments and decrees passed by the Sub Judge 3rd Class, Kurukshetra and the Additional District Judge, Kurukshetra, dated 14.6.1985 and 27.3.1987 may be set aside.
Relu son of Bhani son of Bundhu, resident of village Baram, Tehsil Thanesar, District Kurukshetra (since deceased) filed a suit for declaration that he is owner in possession of 1/3rd agricultural land measuring 218 kanals-18 marlas, situated in village Baram, Tehsil Thanesar, District Kurukshetra. The plaintiff-respondent pleaded that he along with the defendant and certain other persons, purchased agricultural land, in 1953, vide sale deed dated 8.6.1953. A mutation bearing no.664 was sanctioned. The plaintiff and defendant along with Biru son of Kala were owners in possession of 1/2 share each and other vendees were owners in possession of Varinder Kumar 2014.03.06 13:11 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1697 of 1987 2 remaining 1/12th share. On 21.7.1955, the defendant gave land measuring 18 Kanals 05 Marlas, being 1/36th share out of his 1/12th share, to the plaintiff. A mutation no.665 recording this transfer, was sanctioned on 1.2.1956. The revenue staff, which was required to incorporate a change pursuant to mutation no.665 wrongly recorded the shares of the plaintiff and the defendant in jamabandi for the year 1955-56. The share of the plaintiff should have been recorded as 1/9th share instead of 1/18th share, whereas the share of the defendant should have been recorded as 1/18th instead of 1/9th share. Consolidation proceedings took place in the village. The shares of co-sharers, including the plaintiff and the defendant, were separated and a new jamabandi was prepared for the year 1960-61. The share of the plaintiff should have been recorded as 1/3rd instead of 1/6th and the share of the defendant should have been recorded as 1/6th share instead of 1/3rd. The revenue staff carried forward this error into subsequent jamabandis. The plaintiff is in actual physical possession of 1/3rd share but entries in the revenue records reflect his share holdings as 1/6th. It was also pleaded that a suit for permanent injunction filed by the plaintiff to restrain the defendant from taking forcible possession of the wrongly recorded share, was decreed in favour of the plaintiff but the defendant has initiated partition proceedings.
The defendant-appellant filed a written statement raising a number of preliminary objections, but primarily averred that he had become owner of the wrongly recorded share by adverse possession Varinder Kumar 2014.03.06 13:11 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1697 of 1987 3 and the suit has been filed, as a counterblast, to partition proceedings. The defendant-appellant denied that any mutation was recorded or that entries are wrong and pleaded that in case there is any such mutation, it is incorrect and false and therefore, prayed for dismissal of the suit.
The plaintiff-respondents filed a replication whereafter the trail court framed the following issues:-
"(i) Whether the plaintiff is in possession of 1/3 share in the land in dispute?
(ii) Whether the suit is bad for non-joinder of necessary parties?
(iii) Whether the suit is barred by time?
(iv)) Whether the defendant has become owner by way of adverse possession?
(v) Whether the suit is not maintainable in the present form?
(vi) Whether the civil court has got no jurisdiction to entertain and try this suit?
(vii) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction?
(viii) Relief."
The parties led evidence. The plaintiff-respondent deposed as PW1 and tendered copies of mutation nos.664 and 665 as Exhibits P-1 and P-2, copies of jamabandis for the year 1955-56, 1960-61,1965-66, 1970-71 and 1975-76 as Exhibits P-3 to P-7, Varinder Kumar 2014.03.06 13:11 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1697 of 1987 4 respectively, a certified copy of sale deed dated 8.6.1953, Ex.P8, a copy of khasra girdawari Ex.P-9, certified copies of order and decree sheet dated 13.6.1984 Exs.P-10 and P-11. A certified copy of the Naqsha Haqdarwar Ex.P-12, a certified copy of Istemal Ex.P13, a certified copy of Khatoni Istemal Ex.P-14, a certified copy of Parat Sarkar Ex.P-15, a certified copy of birth certificate of defendant Ex.P- 16 were tendered.
The defendant deposed as DW1, besides tendering a certified copy of his school leaving certificate Ex.D1 and closed his evidence.
The trial court treating issue no.1 as the main issue, held that the plaintiff-respondent is, admittedly, in possession of 1/3rd share and as the defendant-appellant transferred 18 Kanals 5 Marlas land vide mutation no.665 which was not given effect to in the jamabandi, entries in jamabandis for the years 1955-56, 1960- 61,1965-66, 1970-71 and 1975-76, are wrong. The defendant's contention that he was a minor at the time of sanction of the alleged mutation, was rejected. The other issues relating to maintainability; the suit is time barred; the defendant has become owner by adverse possession; the suit is bad for non-joinder of necessary parties; the civil court has no jurisdiction; the suit has not been properly valued for the purposes of court fee and jurisdiction, were decided in favour of the plaintiff-respondent and against the defendant/appellant. As a consequence, the suit for declaration was decreed by holding that the plaintiff-respondent is owner in possession of 1/3rd share of Varinder Kumar 2014.03.06 13:11 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1697 of 1987 5 agricultural land measuring 218 Kanals-18 Marlas. It was also held that the revenue entries in jamabandis for the years 1955-56, 1960- 61,1965-66, 1970-71 and 1975-76 are incorrect.
Aggrieved by this judgment, the defendant-appellant filed an appeal which was dismissed by the Additional District Judge, Kurukshetra, by rejecting the appellant's plea that he was a minor on the date of mutation dated 1.2.1956. A relevant extract from the said judgment reads as follows:-
"9 According to the first mutation no.664 copy Ex.P1, the parties and other persons had purchased the suit land jointly. Both the parties, Biru, Babu and Sadhu had together purchased 1/3rd shares in the entire land. In this 1/3rd share Relu, Bhulla and Biru had one share each,whereas one share was purchased by Babu and Sadhu. Thus as per purchase, Relu, Bhulla and Biru had 1/12th share each whereas Babu and Sadhu had together 1/12th share. The shares of Biru was recorded as 1/12th and that of Babu Ram and Sadhu Ram was recorded as 1/12th in the jamabandi for the year 1955-56 prepared soon after the sale. Its copy is Ex.P3.
10 However, the shares of the parties to the present case were not recorded as 1/12th each. The share of Relu was recorded as 1/18 and that of Bhulla defendant as 1/9th. Due of this difference in the shares of the parties Varinder Kumar 2014.03.06 13:11 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1697 of 1987 6 recorded in the suit land as compared to the shares of their co-purchasers Biru etc., it is obvious that in between the parties to this suit, there was some other development. This situation supports the case of the plaintiff that by way of mutation no.665 copy Ex.P2, the defendant had given 1/36th share out of his 1/12th share to the plaintiff. In terms of this mutation, the share of the plaintiff should have been recorded as 1/9th and that of the defendant as 1/18th. However, while writing the document the plaintiff was shown to be having 1/18th share and the defendant was recorded as owner of 1/9th share. The mistake is quite obvious. It cannot be validly argued on behalf of the defendant that this mutation was ignored and not acted upon. Had it been so, the shares of the plaintiff and defendant would have been recorded as 1/12th each.
11 The above mistake was carried forward in the jamabandi for the year 1960-61 prepared after the consolidation of holdings copy Ex.P4. In this jamabandi, the shares of the parties and their co-sharers viz Biru, Babu and Sadhu were separated and in that proportions Babu and Sadhu were recorded to be owner of 1/4th. Biru was recorded as owner of 1/4th another. Relu was shown to be in possession of 1/6th share and Bhulla defendant as owner in possession of 1/3rd share. This mistake has Varinder Kumar 2014.03.06 13:11 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1697 of 1987 7 continued even upto the preparation of jamabandi for the year 1975-76, Ex.P7.
12. From the above discussion I concur with the trial court that there has been mistake in the preparation of the revenue record and under issue no.1 it has been rightly held by the court below that the plaintiff has 1/3rd share and the defendant has 1/6th share."
While holding as above, the first appellate court rejected an application for additional evidence to place on record an alleged admission by the respondents that the appellant has 1/6th share. The first appellate court held that even if this document is taken into consideration, as the respondents have alleged that there is a mistake in the preparation of revenue documents, the said evidence based upon incorrect revenue record, would not serve any purpose and would only lengthen the litigation.
Counsel for the appellant submits that the impugned judgments and decrees are illegal and void. In the absence of a registered document, transferring title of land to the appellant, the courts below could not have relied upon a mutation which neither confers nor divests a party of title. It is further submitted that as mutation was recorded in 1956, the suit filed in the year 1983, was clearly time barred. It is further contended that application filed under Order 41 Rule 27 of the Code of Civil Procedure, for leading additional evidence, was wrongly rejected by ignoring the admission made by the respondent about the share holding of the appellant. It Varinder Kumar 2014.03.06 13:11 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1697 of 1987 8 is submitted that the courts below have committed serious error of jurisdiction and of law, thereby giving rise to the following substantial questions of law:-
"1. Whether the mutation confers any right or title? II. Whether the suit filed by the plaintiff is time barred? III Whether the plaintiff derives any title on the basis of any oral statement with regard to immovable property of the value of more than Rs.100/- without there being a registered document?
IV Whether the application filed by the appellant under Order 41 Rule 27 CPC for leading additional evidence has been wrongly rejected by the learned lower Appellate Court?
V Whether the courts below have wrongly ignored the mutation of the year 1960?
VI. Whether the judgments and decrees passed by the courts below decreeing the suit filed by the plaintiff are unsustainable in the eyes of law?
Counsel for the plaintiff-respondents, on the other hand, submits that the question is not whether a mutation confers any right or title but whether the appellant ever challenged the mutation or took any step to get the mutation set aside. A perusal of the written statement would reveal that the respondent has admitted the mutation, but, has alleged that it is false and was never acted upon. The appellant, in fact, asserts ownership by efflux of time. The onus Varinder Kumar 2014.03.06 13:11 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1697 of 1987 9 to prove that the mutation was false, lay upon the appellant. The appellant having failed to discharge this onus and, in fact, having pleaded adverse possession, is not entitled to challenge the mutation. It is further contended that the suit was not time barred as the only prayer made by the appellant was for correction of the revenue record, on the basis of a mutation. As a mutation neither confers nor divests a party of title, the cause of action would only arise when ownership or possession is under threat. The application under Order 41 Rule 27, Civil Procedure Code, was rightly dismissed as the evidence sought to be produced was to the knowledge of the appellant, before the trial court and does not advance the appellant's case. It is further contended that the question is not one of transfer of immovable property beyond the value of Rs.100/-, but whether the mutation should have been reflected in the revenue record.
A due consideration of arguments addressed, the evidence on record, and concurrent findings recorded by the courts below, leave no ambiguity that no substantial question of law, much less a question of law that arises for adjudication. The dispute in the present case is whether mutation sanctioned in 1956, should have been recorded in the revenue record. The respondents have produced a copy of the mutation. A perusal of the written statement, filed by the appellant reveals the absence of any averment specifically denying sanction of the mutation. The defendant has pleaded that the mutation is false and, therefore, was not acted Varinder Kumar 2014.03.06 13:11 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1697 of 1987 10 upon. The onus to prove that the mutation was false or that no settlement took place between the parties transferring the property, lay upon the appellant. Both the trial court and the appellate court have, after a detailed appraisal of the evidence on record, recorded concurrent findings of fact that mutation no.665 was sanctioned but thereafter share holdings of the parties were wrongly reflected in the revenue record. The appellant has not been able to put forth any argument that these concurrent findings of fact are contrary to the record, are based upon a misreading of evidence on record or are contrary to law. The appellant's plea that the mutation does not confer or divest a party of its title, though correct, is not relevant as the appellant never challenged the mutation or proved that it was wrong or obtained by fraud etc. In the absence of any evidence that the settlement reflected in the mutation did not take place, the mutation voluntarily suffered by the appellant, does not entitle the appellant to urge that the mutation should not be incorporated in the revenue record. The appellant's plea that the suit was time barred, is misconceived as the respondent filed a suit for correction of the revenue record, i.e., a suit under section 47 of the Punjab Land Revenue Act, based upon a mutation, that had been wrongly ignored by revenue authorities. The law of limitation cannot be invoked to deprive a party of its proprietary right, on the basis of a wrong revenue entry, particularly when the right is based upon a document, that is not denied by the other party and as rightly held by the courts below, a wrong revenue entry does not give rise to a cause of action Varinder Kumar 2014.03.06 13:11 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1697 of 1987 11 unless ownership is under threat. A plea that the application under Order 41 Rule 27 of the Code of Civil Procedure was wrongly rejected, does not merit acceptance as the so called admission was based upon the then existing record, which was recorded without taking into consideration the mutation recorded in the year 1956. The appellant, having failed to challenge mutation no.665, Ex.P-2 at any time, findings recorded by the courts below, do not suffer from any error of jurisdiction or of law so as to give rise to a substantial question of law. The appeal is, consequently, dismissed with no order as to costs.
20.1.2014 ( RAJIVE BHALLA )
VK JUDGE
Varinder Kumar
2014.03.06 13:11
I attest to the accuracy and
integrity of this document
High Court Chandigarh