Himachal Pradesh High Court
Baldev Singh And Ors. vs Siri Ram on 9 January, 2008
Equivalent citations: 2008(1)SHIMLC421
Author: Surinder Singh
Bench: Surinder Singh
JUDGMENT Surinder Singh, J.
1. The appellant-plaintiff Godawar Singh failed in both the Courts below and filed the present Regular Second Appeal. During the pendency of appeal, he had died, as such his legal representatives were brought on record. This appeal was admitted on the following questions of law:
1. Whether the impugned judgment and decree is the result of complete mis-reading, misinterpretation as well as mis-appreciation of Ex. PA order dated 22-6-1977, Ex. PG entry in the Khasra Girdwari dated 13th November, 1970 and Ex. PD copy of Jamabandi for the year 1983-84 and PE copy of Misal Hakiat Badobast 1978-79?
2. Whether the Courts below has mis-read, misinterpreted as well as mis-appreciated the provisions of Section 45 of the H.P. Land Revenue Act?
3. Whether the Courts below are right in taking into consideration the documents Exts. D-3 to D-8, especially when the basis for the same was without any authority of law, that is the basic entry Ex. PG having been held without any basis by the then Senior Sub- Judge, vide order dated 22.6.1977?
4. Whether the impugned judgment and decree is the result of complete mis-reading, misinterpretation as well as mis-appreciation of the statement of PW1, PW1 (R) as well as the statement of the respondent-defendant who appeared as DW1?
2. As a matter of fact this second appeal under Section 100 of the Civil Procedure Code has been filed feeling aggrieved, against the judgment and decree dated 28.4.1997 passed by the learned District Judge, Bilaspur, in Civil Appeal No. 6 of 1992, whereby the learned District Judge while dismissing the appeal filed by the present appellants, affirmed the judgment and decree passed by the learned Sub Judge, Bilaspur, on 30.11.1991.
3. In short, the brief facts of the case are that said Shri Godawar Singh, the plaintiff, had filed the suit for declaration to the effect that he has been the owner in possession of the suit land and challenged the revenue entries of the defendant, Siri Ram showing him in possession, paying Rs. 4/- as rent, being wrong and collusive. According to him no such tenancy as indicated in the Girdwari Ex. PG was ever got incorporated with his consent nor there was any legal order for/effecting such entry in favour of the defendant.
4. It was further averred that earlier also the defendant had filed a suit, based upon his said revenue entries qua the disputed land and in that suit, he had sought the interim relief of injunction by moving an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, which was dismissed vide order dated 22.6.1997 (Ex. PA) as the said entries of the defendant were found to be wrong and illegal. The defendant thereafter withdrew his suit. Thus, the plaintiff herein, sought the relief of declaration with a consequential relief of injunction.
5. The defendant had offered a strong resistance to the suit and filed his written statement inter alia raised the preliminary objections that after the initial entries in his favour, the land was repartitioned and the possession was delivered to him during the consolidation proceedings between 1974-75. The objections filed by the plaintiff were dismissed to which no challenge was made, therefore, the civil Court has no jurisdiction vis-a-vis also took up the point of limitation. On merits, it was averred that he has been in possession of the suit land and was rightly conferred the proprietary rights under the H.P. Tenancy & Land Reforms Act, 1974.
6. In replication, the plaintiff denied the preliminary objections and reiterated even paras on merits.
7. On the pleadings of the parties, the learned trial Court had framed the following issues to resolve the controversy:
1. Whether the plaintiff is owner in possession of suit land as alleged? OPP.
2. Whether defendant Shri Siri Ram was a tenant over the suit land as alleged? OPD.
3. If issue No. 2 is proved, whether the defendant Siri Ram acquired proprietary rights to the suit land by the dint of H.P. Tenancy and Land Reforms Act? OPD.
4. Whether the suit land was granted to defendants in repartition as alleged? If so, its effect? OPD.
5. Whether the plaintiff is entitled to the alternative relief of possession?...OPP.
6. Whether the plaintiff has no cause of action? OPD.
7. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD.
8. Whether the Court has got no jurisdiction to try and decide the present suit? OPD.
9. Whether the suit is time barred? OPD.
10. Whether the defendant is entitled to special costs under Section 35-A C.P.C. if so, its quantum? OPD.
10-A.Whether the defendant himself got entered in possession of the suit land in connivance with revenue entries showing the defendant in possession are totally wrong, against actual position of spot and not binding upon the plaintiff, as alleged in para-3 of the plaint? OPP.
11. Relief.
8. The parties led their evidence and the learned trial Court after hearing both the parties, held that assuming the initial entries made in favour of the defendants qua the suit land in the Khasra Girdwari were wrong, but these were carried forward in the subsequent Jamabandies and Khasra Girdawaries and during the consolidation the area was repartitioned and the entries were made in the Misal Hakiat for the year 1978-79. Despite acquiring its knowledge by the plaintiff in the year 1974, he did not assail it in the civil Court within time. Therefore, his suit was barred by limitation. Since the plaintiff (PW1) also admitted that during such proceedings the consolidation papers Exts. D-4 to D-7 were correctly prepared by the revenue agency, showing the defendant as non-occupancy tenant, by the public servants in discharge of their official duties, accordingly these are admissible in evidence under Section 35 of the Evidence Act, as such the presumption of truth is attached to it. The defendant was held to have acquired the proprietary rights in accordance with law, as such the plaintiff had no cause of action, accordingly decided issues No. 1, 3, 4, 6, 9 in affirmative and others in negative, consequently, the suit was dismissed. The plaintiff also failed in appeal, as such he took his grievance to this Court by filing this regular second appeal which was admitted on the above substantial questions of law.
9. During the pendency of appeal, the plaintiff has also filed an application (CMP No. 345 of 1997) under Order 41 Rule 27 of the Civil Procedure Code, seeking the permission to file the jamabandies for the years 1949-50, 1953-54, 1957-58 as well as the copy of mutation dated 20.7.1975 attested in favour of the plaintiff, as an additional evidence, on the ground that these are essentially required to decide the matter in controversy.
10. The respondent has objected to the late production of the said revenue record and contended that in view of the repartition during the consolidation proceedings, the said entries have lost its importance. Therefore, the said application merits dismissal.
11. I have heard the learned Counsel for the parties and have carefully gone through the record, in the light of the submissions made.
12. The first question which needs to be decided is whether the revenue record sought to be produced by the plaintiff at this stage is essentially required to decide the matter in controversy? To this question, my answer would be "No". The pure and simple reason being that the plaintiff in his suit has challenged the incorporation of initial entry of the defendant in the Khasra Girdawari Ex. PG on 13.11.1970 being without any authority and carrying it forward in the subsequent Jamabandies. The entries prior to 13.11.1970 and the mutation aforesaid have no bearing on the matter in controversy. In fact the defendant besides asserting his old possession has relied on the repartition of the disputed land during the consolidation proceedings to which the plaintiff has admitted to be correct.
Therefore, in my opinion, these documents are not required to be produced as no substantial cause will be served by doing so. Accordingly, the application under Order 41 Rule 27 of the Code of Civil Procedure moved by the plaintiff is dismissed.
13. Now, to answer the above substantial questions of law, on which this appeal was admitted for hearing, certain admitted facts by the plaintiff are required to be noted.
14. Plaintiff Godawar Singh as his own witness has admitted, that in the year 1974, he had come to know about the wrong entries of the defendant in the revenue record and it was then he made an application to the Deputy Commissioner, which was sent for enquiry to the Tehsildar and the Patwari concerned was suspended. He neither placed on record any report of the enquiry nor he has stated that any attempt was made by him to correct the alleged wrong entry. It is the admitted case of the parties that their village was under consolidation operation in the year 1974-75. In his cross-examination, the plaintiff has admitted that the consolidation staff had visited each and every field for verification and thereafter they had prepared the consolidation papers and the consolidation proceedings were completed as per the scheme. He further admitted that the revenue officials had entered the possession of each and every field in the revenue papers as found on the spot. He also admitted that he did not raise any objection qua the entries made in favour of the defendant during the consolidation proceedings, however, he has stated that the consolidation authorities had stopped the proceedings when he informed them about the pendency of the suit filed by the defendant, but there is no such document on record which substantiate his version. Even though the Patwari Karam Dass (PW1) has stated that the initial entry dated 13.11.1970 made in the Roznamcha Ex. PW1/A was without any authority, but it is admitted by him that since his posting at the said place w.e.f. 1985, he had made about ten Girdawaries of the disputed land correctly after verification on the spot in favour of the defendant. He has also admitted the khasra girdawari Ex. DA in favour of the defendant to be correct, which means that the defendant was found in actual possession and his status as tenant remained undisputed, thus there was no bar to confer the proprietary rights upon him.
15. On the other hand defendant Siri Ram (DW1) has asserted his own possession over the suit land and placed on record the revenue papers Exts. D-1 to D-8 regarding repartition prepared during the consolidation proceedings. According to him, he was given the possession of the suit land during those proceedings and the plaintiff did not raise any objection.
16. On the close scrutiny of the evidence led by the parties, it makes manifestly clear that Lehnu s/o Sihnu was recorded as the owner of Khasra No. 703, measuring 7.0 bighas and Godawar Singh plaintiff as an occupancy tenant in the Jamabandi for the years 1969-70 (ExPC). On 13.11.1970, the entry of the defendant over 5-9 Bighas as non-occupancy tenant was made in Kharif 1970, in the Khasra Girdawari, without any legal order, and according to the plaintiff, he came to know about it in the year 1974, but he did not try to get it corrected. Thereafter, the area in question was under consolidation in the year 1974-75. On 20.7.1975 plaintiff was conferred with the proprietary rights under Section 94 of the H.P. Tenancy and Land Reforms Act, 1974. During the consolidation proceedings the repartition of the land was done and defendant was given the possession of 5-9 Bighas which was assigned Khasra No. 181. The documents Khatawar Istmal Ex. D-4, Naqsha Hakdawar Ex. D-5, Rukhbandi wa Goadawar Ex. D-6 as per register Karwai Ex. D-7 were prepared. The entry of the defendant was made in the revenue papers. The defendant had also filed the civil suit on the basis of old entries in his favour against the plaintiff Godawar Singh in the year 1977 and also moved the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, seeking the interim injunction, but it was dismissed on 22.6.1977 vide Order Ex.PA on the ground that prima-facie the entries in the name of the defendant were incorrect. The defendant has stated that he did not press his suit when entries were made in his favour during consolidation, as such the suit was withdrawn. The plaintiff specifically admitted that the entries during the consolidation proceedings were made correctly after visiting the spot by the revenue officials. Therefore, the relief sought by him was rightly declined.
17. Otherwise also, the consolidation proceedings are conducted under the statute i.e. Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971, which is a complete Code, self explicit and comprehensive and provides a complete mechanism to the aggrieved party to agitate the matter before the authorities mentioned thereunder by way of appeal or revision. Section 57 of the Act aforesaid bars the jurisdiction of the civil Court as regards the matter arising under the Act.
18. As is evident from the record, the plaintiff did not agitate the initial wrong entries despite acquiring knowledge in the year 1974. Further after delivering the possession to the defendant during the consolidation proceedings at the time of repartitioning of the land in question in accordance with the published scheme under the Act, he did not assail it before the authorities mentioned thereunder. Thus, the plaintiff was rightly non-suited on the ground of limitation by both the Courts below. Further it is a matter arising out of the consolidation proceedings, therefore, in my opinion the jurisdiction of the civil Court is also barred. Further the earlier entries got eclipsed by the subsequent entries made during the consolidation proceedings, in favour of the defendant which were not assailed under the said Act. Thus the initial entry Ex.PG has lost its importance in view of the subsequent entries made under a statute.
19. Therefore, in my conclusion, the Order Ex. PA dated 22.6.1977 passed on the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure is of no help to the plaintiff for the reason stated above.
20. Further the presumption of truth is not attached to the entries made without any authority of law, but in this case there is a material placed on record, as discussed above justifying the change of entry in favour of the defendant during the consolidation proceedings, therefore, presumption of correctness is attached to the subsequent entries made after the consolidation in the record of rights which is having a legal base.
21. Accordingly, for the reasons stated above, the learned Courts below have not misread and mis-interpreted the law in view of the proved facts on record. Accordingly, I have no manner of doubt in my mind that in this second appeal any interference is either warranted or called for, which accordingly deserves to be dismissed.
22. For the reasons aforesaid, the decree and judgment of the learned lower appellate Court is affirmed and is upheld with all consequences. The interim directions issued in this case including the order dated 30.5.1997 are hereby vacated.
Parties are left to bear their own costs.