Himachal Pradesh High Court
Amar Singh And Others vs Mohan Singh And Others on 18 March, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.478 of 2001 .
Date of decision: 18th March, 2019.
Amar Singh and others .......Appellants/Defendants.
Versus Mohan Singh and others ......Respondents/plaintiffs Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1. No. For the Appellants/ : Mr. Rajnish K. Lal, Advocate.
Defendants For the Respondents/ : Mr. Romesh Verma, Advocate.
Plaintiffs Tarlok Singh Chauhan, Judge (Oral).
The defendants are the appellants, who after having lost before both the learned Courts below, have filed the instant regular second appeal.
2. The parties hereinafter shall be referred to as the 'plaintiffs' and 'defendants'.
3. The plaintiffs filed a suit for declaration on the allegations that they were owner in possession of the land bearing khasra No. 487/8, 491/3 and 930 kitas 3 measuring 2998 sq. metres comprising in khata /khatauni No. 600, 601 min. to the extent of two shares out of 12 shares situated in Mauja Ser 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 19/03/2019 22:05:23 :::HCHP 2 (Bhallon), Tehsil and Distt. Solan and the entries to the contrary showing the defendants as owner to the extent of 2/12 shares .
were wrong, illegal and against the factual position and consequently a decree for permanent prohibitory injunction to restrain the defendants from claiming any right, title or interest in the suit land or causing interference therein in any manner was sought. The plaintiffs claimed to have purchased 18 bighas and 17 biswas of land from one Thandi Ram resident of village Ser (Ballon) who was having land being its owner alongwith rights in the Shamlat deh land. The plaintiffs claim to have purchased the said land vide sale deed No. 45, dated 7.11.1957 duly registered in the office of Sub Registrar then District Mahasu. On account of the said sale, Thandi Ram remained only owner in possession of 2 bigha of land alongwith Shamlat Deh attached therewith which land was donated allegedly to Amar Singh the present defendant No. 1. The Suit land was however, subsequently sold by Amar Singh in favour of the plaintiffs alongwith the share in Shamlat Deh vide sale Deed No. 54, dated 10.07.1964. The plaintiff thus claims ownership in respect of the said land purchased alongwith the Shamlat Deh and as per the plaintiffs, in the year 1987-88 the co-sharers and proprietors allegedly partitioned the Shamlat Deh land amongst them to the exclusion of the plaintiffs and without any notice to them. The ::: Downloaded on - 19/03/2019 22:05:23 :::HCHP 3 defendants allegedly got in partition the share of Thandi Ram denoted by Khasra No. 487/3 and 930, kitas 3 measuring 2998 .
sq. metres to the extent of 2 shares out of 12 shares (more specifically to be referred as property in dispute). As per the plaintiffs, since the entire share of Thandi Ram alongwith the Shamlat Deh rights was purchased by the plaintiffs as such during the said partition of the Shamlat Deh land the afore-
mentioned disputed land should have fallen to the share of the plaintiffs which was wrongly allotted to the defendants. The plaintiffs also have taken up plea that since they had been coming in exclusive possession of the entire suit land to the exclusion of the defendants as such otherwise also the plaintiffs have become owner of the said disputed land by virtue of adverse possession. As per the plaintiffs, the defendants are now threatening to dispossess the plaintiffs from the suit land with a view to sell the same to some 3 rd person. As per the plaintiffs, since the attestation of the mutation No. 2000 qua the suit land is illegal and not binding on the rights of the plaintiffs and as the defendants have refused to admit the claim of the plaintiffs qua the suit land (Shamlat Deh) and further correction of the revenue entries in that regard, hence the suit.
4. The suit was contested by the defendants by filing written statement wherein preliminary objections that the ::: Downloaded on - 19/03/2019 22:05:23 :::HCHP 4 plaintiffs have no cause of action, suit is not maintainable, the court has no jurisdiction, the suit is barred by limitation, the suit .
is not properly valued for the purpose of court fee and jurisdiction, and above all the said plaintiffs are estopped from filing the suit. On merits, the defendants controverted the averments of the plaintiffs and took up the plea that neither plaintiffs nor their predecessor-in-interest ever came in possession of the suit land which remained to be in the ownership and possession of the defendants. Though the execution of the sale deed No. 54, dated 10.07.1964 is admitted but denied that the land was sold alongwith the Shamlat Deh land as per the said sale deed. As per the defendants, the revenue entries were correctly incorporated during the settlement. The defendants though admitted that the partition had taken place as alleged by the plaintiffs but denied that same was wrongly or illegally done. The defendants in fact denied the right, title or interest of the plaintiffs qua the Shamlat Deh and, therefore, submits that the mutation No. 2000 was correctly and legally attested and as such have prayed for dismissal of the suit.
5. Plaintiffs filed replication whereby they had controverted the allegations of the defendants and have reiterated the allegations as contained in their plaint.
::: Downloaded on - 19/03/2019 22:05:23 :::HCHP 56. From the pleadings of the parties, the learned trial Court on 20.02.1992, 24.08.1994 and 25.02.1997, framed the .
following issues:-
"1. Whether plaintiffs are owners in possession of the land to the extent of 2 shares?OPP
2. Whether revenue entries showing defendants as owners in possession are wrong?OPP
3. Whether Plaintiff has no cause of action?OPD
4. Whether suit is not maintainable?OPD
5. Whether plaintiffs have no locus standi?OPD
6. Whether this court has no jurisdiction?OPD 6A.
Whether the partition effected on 29.09.1992 vide mutation No. 2000 dated 29.09.1992 is wrong, illegal and void and not binding on the plaintiffs as alleged?OPP 6B. Whether the suit has been properly valued for the purpose of court fee and jurisdiction, if so what is court valuation?
OPP 6C. Whether the suit is barred by resjudicata?OPD 6D. Whether the plaintiffs are estopped from filing the suit as alleged?OPD 6E. Whether the suit land was not the Shamlat land as alleged?OPD
7. Relief."
7. After recording evidence and evaluating the same, the learned Trial Court vide judgment dated 13.04.1999 decreed the suit of the plaintiffs.
8. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants preferred an appeal before the learned first Appellate Court, however, the same was also came ::: Downloaded on - 19/03/2019 22:05:23 :::HCHP 6 to be dismissed vide judgment and decree dated 05.07.2001, constraining the appellants to file the instant appeal.
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9. On 10.10.2001, the appeal came to be admitted on the following substantial questions of law:-
1. Whether the court below has misread and misconstrued the documents DW2/1 and DW2/2, DX to DZ and raised a wrong inference that no right was conferred upon the plaintiffs in the shamlat deh after the execution of the sale deed Ext. PW2/A and PW2/B and that the presumption of truth could be raised to the documents PX-1 to PX-12, PA-1 to PA-3?
2. Whether in view of the fact that the property in dispute had been partitioned and the defendants/appellants were in separate possession of the same and the suit of the plaintiff was not for possession and was not maintainable in Civil Court and as such, the relief granted is sustainable?
3. Whether the suit of the plaintiffs was within limitation particularly when the mutation had been attested in the year 1958 and the same was not challenged?
I have heard learned counsel for the parties and have gone through the records of the case.
Question No. 110. At the outset, it needs to be noticed that the defendants admitted the sale of the land measuring 18 bighas, 17 biswas situate in village Sher (Bhallon) on 07.11.1957 by the ::: Downloaded on - 19/03/2019 22:05:23 :::HCHP 7 predecessor-in-interest Thandi Ram to the plaintiffs and their predecessor-in-interest vide sale Deed Ext.PW2/B. Similarly, the .
remaining 2 bighas of land possessed by Shri Thandi Ram was also bequeathed to the defendant Amar Singh by way of gift. This position was not only conceded before the learned Courts below but is also conceded before this Court. It is also not in dispute that the said 2 bighas of land thereafter was further sold by
11.
r to defendant Amar Singh to the plaintiffs on 10.07.1964 vide sale deed Ext. PW2/A. Now, the only question that remains for consideration is whether the Shamlat land was sold vide the aforesaid sale deeds.
12. For answering this question one would have to essentially refer to the sale deeds Ext. PW2/A and Ext.PW2/B. A perusal of these sale deeds clearly and unequivocally make a mention of the shamlat land alongwith other rights being sold in favour of the plaintiffs. Thus, it stands proved on record that the plaintiffs had also purchased the shamlat rights at the time of purchase of the land and were accordingly put in possession of the suit land.
13. Once that be so, then obviously any other document whether anterior in point of time or subsequent to the sale deed Ext.PW2/A and Ext.PW2/B would have no effect on the title of the ::: Downloaded on - 19/03/2019 22:05:23 :::HCHP 8 plaintiff. Unless these two sale deeds themselves were superseded and the land transferred by another sale deed .
executed by the plaintiffs themselves in favour of any other person. This is all the more so, when the documents as relied upon or referred to by the defendants are only either copies of revenue record or mutation etc. which as per settled law confer no title.
14.
r to This question is answered accordingly.
Question No. 2It is not in issue that dispute in the case is one of title to the shamlat land. If that be so, then obviously, it is the Civil Court alone, which has jurisdiction to entertain and decide such question of title and, therefore, cannot be held that the jurisdiction of the Civil Court in given facts and circumstances of the case was barred. No question of law much less substantial question of law arises for consideration.
This question is answered accordingly.
Question No. 3.
15. Even if it is assumed that there was a mutation attested in the year 1958, even then the suit cannot be held to be beyond limitation for the simple reason that mutation in itself does not confer title and is only for fiscal purpose.
::: Downloaded on - 19/03/2019 22:05:23 :::HCHP 916. It is settled that mutation entries only enable the State to collect revenues from the persons in possession and .
enjoyment of the property and the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. (Refer: Sankalchan Jaychandbhai Patel and others
17.
r to vs. Vithalbhai Jaychandbhai Patel and others (1996) 6 SCC
433).
This authority in turn was considered by this Court in Param Dev and others vs. State of Himachal Pradesh and others 2014 (2) Shim.L.C. 928 : Param Dev and others vs. State of H.P. and others 2014 (1) Latest HLJ (HP) 440, wherein it was observed as under:
"7. It is well settled law that mutation does not confer any title. The mutation proceedings are summary in nature and are only for fiscal purpose to determine the land revenue and cannot be considered to be evidence about title. The Hon'ble Supreme Court in Sankalchan Jaychandbhai Patel and others vs. Vithalbhai Jaychandbhai Patel and others (1996) 6 SCC 433 held as under:-
" Mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the ::: Downloaded on - 19/03/2019 22:05:23 :::HCHP 10 property. Mutation entries do not create any title or interest therein" (Para 7).
.
8. In Smt. Sawarni vs. Smt. Inder kaur and others AIR 1996 SC 2823, the Hon'ble Supreme Court held as under:-
"7. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment."
18. Similar reiteration of law can thereafter be found in Rameshwar Dass (deceased) through his Lrs :Subhash Jain and others vs. Dayawanti (deceased) through her LRS: Manoj Bansal and others, 2016 (5) ILR (HP), 847.
This question is answered against the defendants and in favour of the plaintiffs.
19. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
18th March, 2019. (Tarlok Singh Chauhan) (sanjiv) Judge ::: Downloaded on - 19/03/2019 22:05:23 :::HCHP