Himachal Pradesh High Court
Durga Dass And Others vs Roshan Lal & Others R on 4 May, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 228 of 2007.
.
Reserved on: 27th April, 2015.
Decided on: 4th May, 2015.
Durga Dass and others .....Appellants.
Versus
Roshan Lal & others r ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting?1 For the Appellants: Mr. G.R. Palsra, Advocate. For the Respondents: Mr. R.L. Chaudhary, Advocate. Sureshwar Thakur, Judge.
The instant appeal has been preferred by the plaintiffs/appellants against the judgment and decree rendered on 2.11.2006 by the learned Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P. in Civil Appeal No.13/2003, 95/2005 whereby the learned First Appellate Court dismissed the appeal preferred before it by the plaintiffs/appellants and affirmed the judgment and decree of the learned trial Court. 1 Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 15/04/2017 18:06:23 :::HCHP
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2. Briefly stated the facts of the case are that the suit .
land is recorded in the ownership and possession of the parties and the entries in the name of deceased Dhani Ram father of defendant No.1 and Dassu Ram, defendant No.2 showing them co-sharers in the suit land to the extent of 1117860 share are illegal, null and void as the deceased Dhani Ram and defendant No.2 Dassu Ram never remained in possession of the suit land and they are stranger to the suit land having no right, title or interest. The plaintiffs though are also recorded to be in joint possession of the suit land but the plaintiffs are in possession of the share of deceased Dhani Ram and Dassu Ram, defendant No.2 and deceased Dhani Ram and defendant No.2, Dassu Ram have now relinquished their entire shares in the suit land in favour of defendants No.3 to 7 which relinquishment deed is also illegal, null and void as the deceased Dhani Ram and defendant No.2 were having no title over the suit land and as such defendants No.3 to 7 did not acquire any title as co-sharers over the suit land and thus the relinquishment deed No.696 dated 19.6.1996 and mutation No.101 dated 25.06.1996 attested on the basis of such relinquishment deed is also illegal, null and void. In case the entries in the name of defendants No.1 and 2 are found ::: Downloaded on - 15/04/2017 18:06:23 :::HCHP ...3...
to be correct then the plaintiffs have acquired title over their .
shares in the suit land by way of adverse possession as the plaintiffs are in open, peaceful, continuous and hostile possession of shares of the defendants since long and the predecessor of defendants No.1 and defendant No.2, Dassu Ram never remained in possession of the suit land. The plaintiffs came to know about wrong entries in favour of the deceased Dhani Ram and defendant No.2 and the relinquishment deed made in favour of defendants No.3 to 7, when defendants No.3 to 7 started interference in the suit land and they threatened to take forcible possession of the suit land on 20.6.1996.
3. Defendants No.1 to 3 contested the suit and filed written statement wherein they have taken the preliminary objections inter alia maintainability, limitation and estoppel. The revenue entries in favour of the predecessor-in-interest of defendant No.1 and defendants No.2 are stated to be correct and it has been stated that both of them were co-sharers in the suit land alongwith plaintiffs and proforma defendants. It is admitted that both of them have relinquished their shares in the suit land in favour of defendants No.3 to 7. It is denied that the plaintiffs are in exclusive possession of the suit land and they have become ::: Downloaded on - 15/04/2017 18:06:23 :::HCHP ...4...
owners of the shares of the defendants in the suit land by way of .
adverse possession but stated that the predecessor of defendant No.1 and Dassu Ram, defendant No.2 were in peaceful possession of their shares in the suit land after the relinquishment, it is defendants No.3 to 7, who are now co- sharers in joint possession of the suit land.
4. The plaintiffs/appellants filed replication to the written statement of the defendants/respondents, wherein, they denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint.
5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:-
1. Whether the revenue entries in the name of late Dhani Ram and Dassu Ram are wrong, illegal and incorrect, as alleged? OPP
2. Whether the relinquishment deed No.696 and mutation No.101 dated 25.6.96 is also wrong, null and void? OPP
3. If issues No.1 and 2 are not proved then whether plaintiffs have become owners of suit land by way of adverse possession? OPP
4. Whether the plaintiffs are entitled to the relief of permanent, prohibitory injunction, as prayed for? OPP ::: Downloaded on - 15/04/2017 18:06:23 :::HCHP ...5...
5. Whether the present suit is not maintainable? OPD .
6. Whether the present suit is barred by the period of limitation? OPD
7. Whether the plaintiffs are estopped by their acts and conducts? OPD
8. Relief.
6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants. In appeal, preferred by the plaintiffs/appellants against the judgment and decree of the learned trial Court before the learned first Appellate Court, the learned first Appellate Court dismissed the appeal and affirmed the findings recorded by the learned trial Court.
7. Now the plaintiffs/appellants have instituted the instant Regular Second Appeal before this Court assailing the findings recorded by the learned Courts below in their impugned judgment and decree. When the appeal came up for admission on 26.04.2010, this Court, admitted the appeal instituted by the plaintiffs/appellants, against the judgment and decree, rendered by the learned Courts below on the hereinafter extracted substantial question of law:- ::: Downloaded on - 15/04/2017 18:06:23 :::HCHP
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"1. Whether the findings of the learned trial Court as well as .
first Appellate Court are result of complete misreading and misinterpretation of evidence and material on record and against the settled position of law?"
Substantial question of Law No.1:
8. Shri Dhani Ram, the predecessor-in-interest of defendant No.1 and Dassu Ram, defendant No.2 stand recorded as co-sharers in the suit land along with defendants No.3 to 7. The factum of the aforesaid Dhani Ram, predecessor-in-interest of defendant No.1 and Dassu Ram, defendant No.2 along with defendants No.3 to 7 being recorded as co-khatedar qua the suit land stands corroborated by a compatible depiction in the copies of missal hakiyat consolidation comprised in Ex.PB and Ex.PC. Dhani Ram, the predecessor-in-interest of defendant No.1 and Dassu Ram, defendant No.2, hence proceeded to under relinquishment deed comprised in Ex.PG relinquish their share in the suit land in which they were along with defendants No.3 to 7 rerecorded as co-khatedars, in favour of the latter.
9. The short submission addressed before this Court by the learned counsel for the plaintiffs/appellants, is that the relinquishment deed, comprised in Ex.PG, whereunder Dhani Ram, the predecessor-in-interest of defendant No.1 and Dassu ::: Downloaded on - 15/04/2017 18:06:23 :::HCHP ...7...
Ram, defendant No.2 relinquished their share, in the purportedly .
joint suit land, wherein both the relinquishers and the relinquishsees, purportedly are recorded as co-khatedars, suffers from an infirmity, inasmuch as there is no documentary evidence comprised in jamabandis apposite to the suit land adduced on record by the defendants portraying the fact that the relinquishers as well as the relinquishees, who are defendants No.3 to 7, both stood recorded as co-khatedars in the suit land, in face whereof alone the relinquishment of shares by Dhani Ram, the predecessor-in-interest of defendant No.1 and Dassu Ram, defendant No.2 in favour of defendants No.3 to 7, could occur. Consequently, it is urged before this Court that relinquishment deed Ex.PG is nonest besides it is urged that the mutations attested on strength thereof are legally frail and vest no rights in the suit land in favour of defendants No.3 to 7.
10. The above argument cannot stand to be countenanced by this Court, the reason for overcoming and discountenancing the contention of the learned counsel for the plaintiffs/appellant is that the copies of missal hakiyat consolidation, Exts. PB and PC qua the suit land, both unravel the factum of Dhani Ram, the predecessor-in-interest of ::: Downloaded on - 15/04/2017 18:06:23 :::HCHP ...8...
defendant No.1 and Dassu Ram, defendant No.2 along with .
defendants No.3 to 7 in whose favour the former had relinquished their share, standing recorded therein as co-khatedars. The aforesaid documentary evidence clinches the factum hence of Dhani Ram, the predecessor-in-interest of defendant No.1 and Dassu Ram, defendant No.2, as such, having a tenable and vindicable right to relinquish their share in the suit land in favour of defendants No.3 to 7, who along with them were co-sharers therein. There being no prohibition and interdiction in law against relinquishment by a co-sharer/co-sharers of his or their share in favour of other co-sharers, as such, the legitimacy foisted upon Ex.PG by the learned Courts below cannot stand to be irrevered.
11. Moreover, the only evidence which has been brought on record by the plaintiffs/appellants to over come the legal efficacy of Ex.PG is the oral testimony of the plaintiff. The oral testimony of the plaintiff and his witnesses cannot either whittle down or benumb the effect of Ex.PG, the relinquishment deed qua the suit land by Dhani Ram, the predecessor-in-interest of defendant No.1 and Dassu Ram, defendant No.2 in favour of defendants No.3 to 7 nor the effect of mutations attested in favour of the latter in consonance thereto especially when the ::: Downloaded on - 15/04/2017 18:06:23 :::HCHP ...9...
commanding and preeminent documentary evidence aforesaid .
unraveling the factum of both the relinquishers and the relinquishees being recorded as co-khatedars qua the suit land ,hence imbuing relinquishment deed Ex.PG with validation so as to clothe it with legality stands unrebutted by adduction of apposite evidence by the plaintiffs/appellant connoting that the mutations on strength of relinquishment deed are not qua the land recorded in the co-ownership of the parties at contest. The onus was upon the plaintiffs/appellants to adduce worthwhile evidence of probative worth comprised in documentary evidence unfolding the fact that the relinquishers as well as the reliniqushees both were not recorded as co-khatedars over the suit land, hence, with there being a legal prohibition against relinquishment by an alienor or alieneer when they do not don the mantle of co-khatedars therein, the relinquishment deed, Ex.PG necessitated its being held to be legally unsound. Reiteratedly, the said onus has remained un-discharged. The relinquishment deed Ex.PG, hence, is presumed to be executed in accordance with law, as also, mutations attested in favour of defendants No.3 to 7 also acquire validation especially in the face of the copies of missal hakiyat consolidation Ex.PB and PC portraying the factum ::: Downloaded on - 15/04/2017 18:06:23 :::HCHP ...10...
of both the relinquishers and the relinquishees being recorded as .
co-khatedars qua the suit land. It is not open for the learned counsel appearing for the plaintiffs/appellants to contend before this Court that the onus qua the relinquishers or the relinquishees not holding the suit land in their capacity as co-khatedars, as such, theirs being incapacitated to execute Ex.PG at any stage, shifts upon the defendants/respondents. A presumption of truth is attached to the factum of Ex.PG being executed in consonance with the well accepted cannon and tenets of it being executed inter se the relinquishers and relinquishees qua the suit land over/upon which besides each has a right to convey by relinquishment his/their share therein in favour of the relinquishees. The presumption of truth attached to the factum of Ex.PG having been executed inter se the legally capacitated co- sharers in the jointly recorded suit land inter se them has remained un-dislodged at the instance of the plaintiffs/appellants by theirs taking to adduce cogent evidence conveying that in the land recited in Ex.PG and one denoted in the mutations attested on the strength thereto the relinquishers and relinquishees, both were not recorded as co-sharers, hence, neither the relinquishers had a valid legal right to relinquish it nor the relinquishees had a ::: Downloaded on - 15/04/2017 18:06:23 :::HCHP ...11...
compatible legal right to receive the share of the reqlinquishers.
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Lack of adduction of apposite evidence on the part of the plaintiffs/appellants to rebut the said presumption renders the presumption of truth qua Ex.PG, relinquishment deed, having been executed inter se co-sharers, to hence attain conclusiveness. Concomitantly, the findings of the learned Courts below do not suffer from any perversity or absurdity and do not warrant any interference from this Court. The substantial question of law is answered in favour of the defendants/respondents and against the plaintiffs/appellants.
12. The result of the above discussion is that the appeal, preferred by the plaintiffs/appellants is dismissed and the judgment and decree, rendered by the learned Courts below is affirmed and maintained. Record of the learned Courts below be sent back forthwith. No costs.
4th May, 2015. ( Sureshwar Thakur ),
(jai) Judge.
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