Himachal Pradesh High Court
Sh. Prem Chand & Others vs Sh. Amar Chand & Others on 15 March, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No.547 of 2003 .
Decided on: 15th March, 2016 Sh. Prem Chand & others ......Appellants.
Versus Sh. Amar Chand & others ......Respondents.
Coram of The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?1 No. For the Appellants : Mr.G.D.Verma, Sr. Advocate with rt Mr. B.C.Verma, Advocate.
For the respondents : Mr. Ajay Sharma, Advocate.
Dharam Chand Chaudhary, Judge(Oral) This appeal is directed against the judgment and decree dated 27.11.2003, passed by learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No.45-D/2000. It is seen that vide impugned judgment and decree, learned Lower Appellate Court has reversed the judgment and decree dated 31.3.2000 passed by learned Sub-Judge-I, Dharamshala in Civil Suit No.68/96/95 and dismissed the suit.
2. It is the plaintiffs, who are in second appeal before this Court. Their mother Smt. Keeno Devi has sought the declaration that she is owner in possession of the land Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 19:55:09 :::HCHP 2entered in Khata No.6min, Khatauni No.22, 81, 89, 91 bearing Khasra Nos.225, 228, 230, 226, 227, 229 and 231, measuring 0-57-93 hectares( old Khasra No.12min, .
measuring 16 Kanals) situated at Mohal Chakban Mauza Dhagwar, District Kangra. The entries qua the suit land to the extent of 0-34-41 hectares in the name of defendants are wrong, illegal hence null and void. Deceased Keeno of Devi has claimed the title in the suit land pursuant to the Will executed by her husband Sh. Reejhoo in her favour on rt 20.6.1975. Her deceased-husband was in possession of th suit land right from the year, 1949. The eviction proceedings initiated against him by Gram Panchayat vide case No.33 of 1969 were rejected by Assistant Collector Ist Grade, Kangra for the reason that said Sh. Reejhoo was in lawful possession of the suit land.
3. The defendants (respondent herein) have resisted and contested the suit on the grounds inter-alia that the plaintiff has neither locus-standi nor any cause of action to file the suit against them and rather she was estopped from filing the suit. The suit was also claimed to be time barred and bad for non-joinder of necessary parties. On merits, the entries qua the suit land showing the plaintiff in possession of the suit land were stated to be wrong, as she ::: Downloaded on - 15/04/2017 19:55:09 :::HCHP 3 never cultivated the land in question under any scheme. The suit land was in possession of the defendants. During the settlement operation, carried out in the area, the possession .
over the suit land was recorded as per the position prevailing on the spot. The old Khasra No.12 was consisting of a chunk of land and during settlement operation, the same was bifurcated in various small khasra numbers, as of per the physical possession of various right holders. It is denied that the plaintiff or her husband ever remained in rt possession of the suit land. It is also denied that the suit land was given to them by the Panchayat or they were paid any rent in lieu thereof.
4. In replication, the plaintiff has denied the contentions raised by the defendants being wrong and reiterated her case as set out in the plaint.
5. On the pleadings of the parties, the following issues were framed by the trial Court on 8.8.1997:-
1. Whether the plaintiff is personally and through her predecessor-in-interest a tenant in possession of the suit land alleged? OPP
2. Whether the entries of illegal possession in the name of plaintiff and proforma defendant is wrong, illegal, collusive and papers entries and are liable to be declared as such? OPP.::: Downloaded on - 15/04/2017 19:55:09 :::HCHP 4
3. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP.
4. If, issue No.1 is not proved, whether the plaintiff is entitled to the relief of possession .
as prayed for? OPP.
5. Whether the plaintiff has no locus standi and cause of action to file the suit? OPD.
6. Whether the plaintiff is estopped by his Act and Conduct to file the suit? OPD.
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7. Whether the suit is bad for non-joinder of necessary parties? OPD.
8. Whether the suit is not maintainable? OPD. rt
9. Whether the suit is time barred? OPD.
10. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD.
11. Whether this Court has no jurisdiction to entertain the suit? OPD.
12. Relief:-
6. On behalf of the plaintiff, her son and attorney PW-1, Sh. Prem Chand has stepped into the witness box and examined PW-2, Sh. K.S.Pathania, who produced the will and PW-3, Sh. Dev Raj is a witness to prove the possession of Sh.
Reejhoo and his wife Smt. Keeno Devi over the suit land since 1942. On the other hand, reliance on behalf of the plaintiff has also been placed on the documentary evidence i.e. jamabandis/ Misal Hakiat Bandobast Jadid Ex.P-1 to Ex.P-
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7. On the other hand, the defendants have examined Sh. Amar Singh as DW-1 to prove their possession over the suit land. They have also placed reliance on the .
documentary evidence.
8. During the pendency of the appeal in the Lower Appellate Court, the defendants have also produced additional evidence, the copy of judgment and decree dated of 27.8.1992 passed by learned Sub Judge Ist Class (1), Dharamshala in Civil Suit No. 86/91, which was filed by Smt. rt Kashalya Devi and Smt. Sarswati Devi (defendants No. 1 and 2 herein) against S/Sh. Karam Chand and Mast Ram appellants No. 1(b) and 1(d) herein ( sons of deceased-
plaintiff Keeno Devi).
9. Learned trial Court on appreciation of the evidence available on record has held that the deceased-
plaintiff Keeno Devi was in possession of the suit land and that the entries showing the defendants to be in possession thereof, were wrong illegal and collusive. The plaintiff was held entitled to the possession of the suit land. The suit was accordingly decreed for the relief of injunction restraining the defendants from causing interference in the suit land.
However, the declaration sought is declined and rightly so ::: Downloaded on - 15/04/2017 19:55:10 :::HCHP 6 because the State of H.P. the recorded owner of the suit land, was not arrayed as party in the suit.
10. The defendants, aggrieved by the judgment and .
decree passed by learned trial Court have questioned the legality and validity thereof before the lower Appellate Court. The learned lower Appellate Court has accepted the appeal and dismissed the suit on reversal of the judgment of and decree passed by the trial Court. Now this appeal came to be filed in this Court on the ground inter-alia that lower rt Appellate Court has not appreciated the evidence available on record in its right perspective and as a result thereof, recorded the findings, which are contrary to the record and, as such, perverse. The order Ex.P-5 passed by the Assistant Collector 1st Grade shows that deceased Reejhoo and his son were in possession of the suit land in the capacity of tenants. The entries in the jamabandis showing deceased Reejhoo and deceased-plaintiff Smt. Keeno Devi to be in possession of the suit land have also not been taken into consideration. The further grouse is that the oral as well as documentary evidence available on record has been erroneously brushed aside.
11. The appeal has been admitted on the following substantial questions of law:-
::: Downloaded on - 15/04/2017 19:55:10 :::HCHP 7"1. Whether there has been no proper application of mind by learned Additional District Judge to the subject .
matter of dispute and there being sufficient oral and documentary evidence in support of the claim of appellant, therefore, no adverse interference could be drawn against her on the ground that she failed to of appear as her own witness?
12. Mr. G.D. Verma, learned Senior Advocate, rt assisted by Mr. B.C.Verma, Advocate has canvassed that the well reasoned and detailed judgment passed by learned trial Court should have not been reversed by learned lower Appellate Court in view of overwhelming oral as well as documentary evidence available on record. The evidence rather has not appreciated in its right perspective by learned trial Court. Mr. G.D. Verma, learned senior Advocate has drawn the attention of this Court to the entries in the revenue record and has forcefully contended that the possession of the plaintiff over the suit land is proved beyond doubt. Also that the non-appearance of plaintiff in the witness-box has been erroneously given undue weight-
age while reversing the judgment and decree passed by the trial Court and dismissing the suit particularly when there ::: Downloaded on - 15/04/2017 19:55:10 :::HCHP 8 was sufficient evidence oral as well as documentary to show that the plaintiff was possession of the suit land.
13. On the other hand, Mr. Ajay Sharma, learned .
counsel has restricted the claim only qua the suit land entered in Khata No.4 min, Khatauni No. 21 and 88, Khasra Nos. 225 and 226, measuring 0-07-62 and 0-09-67 hectares, recorded in their respective shares. In support of the of arguments so addressed Mr. Ajay Sharma, learned counsel has placed reliance on the judgment Ex. DX, passed by rt learned Sub-Judge Ist Class (I) Dharamshala in the suit instituted previously by the defendants against the appellants-plaintiffs No.1(b) and 1(d) for the decree of permanent prohibitory injunction.
14. Now, coming to adjudication of the substantial question of law hereinabove in the light of the arguments addressed on both sides and also the evidence available on record, in the jamabandis Ex.P-1 for the year, 1959-60 and Ex.P-3 for the year, 1968-69, no doubt appellant Reejhoo was recorded in possession of a portion of the land bearing khasra No.12 to an extent of 16 kanals in the capacity of non occupancy tenant. The Gram Panchayat has been proved to be owner thereof. It is during the settlement operation carried out in the area where the suit land is ::: Downloaded on - 15/04/2017 19:55:10 :::HCHP 9 situated old Khasra No12.min has been bifurcated into different Khasra numbers and while the land bearing Khasra No. 225 measuring 0-07-62 hectares has been shown in .
possession of defendant No.1, Khasra No. 226 measuring 0- 09-67 hectares in the name of defendant no.2.The land measuring Khasra No. 228 and 230 measuring 0-23-52 hectares was recorded in the possession of Shri Reejhoo, of predecessor-in-interest of the plaintiffs. The misal Hakiat bandobast jadid for the year 1992-93, Ex.P-2, is silent qua rt this aspect of the matter.
15. The Gram Panchayat, Dhagwar has initiated the proceedings to eject deceased Reejhoo from the land measuring 16 Kanals, a portion of Khasra No. 12 min, however, the order Annexure P-5 reveals that Reejhoo was in cultivating possession of the said land and, as such, the application registered as encroachment case No. 33 of 1979 was dismissed by the Assistant Collector 1st Grade. The fact, therefore, remains that Reejhoo was in possession of the land measuring 16 Kanals. Though, the Will is Ex.PW-
2/A, however, the same is not proved in accordance with law. Anyhow, in view of the pleadings and also the evidence available on record, it can reasonably be believed that after the death of Sh.Reejhoo, the land came to be occupied by ::: Downloaded on - 15/04/2017 19:55:10 :::HCHP 10 his widow Smt. Keenoo deceased-plaintiff. It appears that after the settlement operation, appellant-plaintiff Mast Ram and Karam Chand started interference in the land bearing .
Khasra No. 225 and 226, which was recorded in the possession of defendant no.1 Smt. Kaushalya Devi and defendant No.2 Smt. Sarswati Devi respectively. They both filed Civil Suit No. 86 of 1991 in the Court of learned Sub of Judge 1st Class (I), Dharamshala against aforesaid Sh.
Karam Chand and Sh.Mast Ram qua the decree of rt permanent prohibitory injunction. The suit has been decreed vide judgment dated 27.8.1992 in favour of the defendants herein. The judgment Ex. DX, has not been appealed any further, therefore, the same has attained finality. Otherwise also, in view of the misal Hakiat bandobast jadid, Ex.P-2, deceased Reejhoo was recorded only in possession of the land bearing Khasra No. 228 and
230. The area is 23-52 hectares, which corresponds to 13 Kanals. True it is that it is sort of area, which was recorded in his possession before the settlement taken place in the area. However, the evidence produced by the defendants reveal that during the settlement operation the possession of the right holders were recorded as per the factual possession on the spot. The predecessor-in-interest of the ::: Downloaded on - 15/04/2017 19:55:10 :::HCHP 11 plaintiffs have not challenged the entries made in the revenue record after the settlement. They have also not assailed the judgment and decree Ex.DX, passed in the .
previously instituted suit by defendants No. 1 and 2, therefore, the decree for permanent prohibitory injunction restraining the defendants from causing interference in the suit land bearing khasra Nos. 228 and 230, measuring 0-23- of 52 could have been passed. The learned trial Court, therefore, has committed an error while decreeing suit qua rt the entire suit land measuring 0-57-93 hectares, which area as a matter of fact exceeds to 16 kanals which was in the possession of the deceased Reejhoo. Therefore, learned lower Appellate Court could have modified the decree only to this extent instead of reversing the same and dismissing the suit as a whole. The appellants-plaintiffs are justified in claiming the evidence available on record has not been appreciated in its right perspective. The findings recorded by learned lower Appellate Court on account of mis-
appreciation of the evidence are, therefore, definitely vitiated, as such the judgment and decree under challenge is quashed and set-aside and judgment passed by the trial Court is affirmed, however, with the modification that the defendants shall not cause any interference in the suit land ::: Downloaded on - 15/04/2017 19:55:10 :::HCHP 12 bearing khasra No. 228 and 230 measuring 0-23-52 hectares, situated at Mohal Chakban mauza Daghwar.
16. In view of what has been said hereinabove, this .
appeal succeeds and the same is accordingly allowed. No order as to costs. Pending application(s), if any, shall also stands disposed of.
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(Dharam Chand Chaudhary)
March 15, 2016 Judge
(shankar)
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