Himachal Pradesh High Court
Amar Nath vs Chinta Devi on 4 December, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 345 of 2005.
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Judgment reserved on: 29.11.2018.
Date of decision: 4th December, 2018.
Amar Nath .....Appellant/Defendant.
Versus Chinta Devi .....Respondent/Plaintiff.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellant : Mr. Romesh Verma, Advocate.
For the Respondent : Mr. R.K. Sharma, Senior Advocate with Mr. Arun Kumar, Advocate.
Tarlok Singh Chauhan, Judge The defendant is the appellant, who after having lost before both the learned Courts below, has filed this regular second appeal.
2. The parties hereinafter shall be referred to as the 'plaintiff' and the 'defendant'.
3. The plaintiff filed a suit for possession and mandatory injunction on the ground that the suit land comprising Khata-Khatauni 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 06/12/2018 22:56:33 :::HCHP 2 No. 123/127, Khasra No. 1086/588, measuring 2 biswas and Khasra No.1088/589, measuring 4 biswas, situated in Mauza Banikhet Jarie, .
Pargana Chuhan, Tehsil Dalhousie, District Chamba, H.P. was purchased by the plaintiff from Smt. Reeta Devi vide sale deed dated 28.06.1999 and mutation to this effect was attested on 12.07.1999.
Reeta Devi, in turn, had purchased the suit land from the defendant and this land at the relevant time was assigned Khasra Nos. 588/1 and constructing a shed.
r to 589/1. The defendant in absence of the plaintiff had encroached upon 2 biswas of the suit land, more particularly, in Khasra No.1086/588 by The demarcation of the suit land was firstly carried out by the Field Kanungo, Banikhet, wherein such encroachment was duly proved and thereafter Naib Tehsildar, Dalhousie too pin-pointed the extent of encroachment. Despite requests which were followed by a notice, the defendant did not deliver back the possession, hence the suit.
4. The defendant contested the suit by filing written statement wherein preliminary objections regarding valuation, maintainability and non-joinder of necessary parties, had been taken.
On merits, it was submitted that the shed in question was constructed in the year 1997 that too with the knowledge of the previous owner Reeta Devi, who had never objected to the same, whereas, the plaintiff ::: Downloaded on - 06/12/2018 22:56:33 :::HCHP 3 purchased the land on 28.06.1999. It was submitted that the sale was made out of Khasra Nos. 588 and 589 and no partition had taken .
place between Reeta Devi and defendant. It was claimed that Reeta Devi in connivance with the revenue authorities had got herself recorded as exclusive owner of the suit land, whereas, the land was joint.
5. On the pleadings of the parties, the learned trial Court framed the following issues:-
"1. to Whether plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP.
2. Whether plaintiff is entitled to the relief of possession as prayed for? OPP.
3. Whether suit has not been properly valued for the purpose of court fee and jurisdiction as alleged? OPD.
4. Whether suit is not maintainable in the present form as alleged? OPD.
5. Whether suit is bad for non-joinder of the necessary parties as alleged? OPD.
6. Whether plaintiff is estopped from filing the present suit as alleged? OPD.
7. Whether defendant has sold the disputed land to Reeta Devi from joint land, if so, its effect? OPD.
8. Whether Reeta Devi or plaintiff never remained in possession of the suit land as alleged? OPD.
9. Relief."::: Downloaded on - 06/12/2018 22:56:33 :::HCHP 4
6. After recording evidence and evaluating the same, the learned trial Court on 29.05.2004 decreed the suit filed by the plaintiff .
constraining the defendant to file an appeal before the learned first appellate Court, who too vide its judgment and decree dated 28.04.2005 dismissed the same.
7. It is thereafter that the defendant filed the instant appeal which on July 14, 2005, was admitted on the following substantial questions of law:-
"1. to Whether for want of production of original sale-deeds on behalf of defendant/appellant in favour of Smt. Reeta Devi and thereafter on behalf of Smt. Reeta Devi in favour of Chinta Devi, an adverse inference is required to be drawn against the plaintiff?
2. Whether mutation Exhibit PW-2/A and Exhibit PW-2/B can not be relied upon because those were to be shown and proved in conformity with deeds of sale on behalf of defendant in favour of Smt. Reeta Devi and later-on, on behalf of Smt. Reeta Devi in favour of Smt. Chinta Devi?
3. Whether the land in question as entered against Khasra Nos. 588, 589 was in exclusive ownership and possession of defendant-appellant and therefore, in the absence of partition of this land in accordance with law, no legal and valid demarcation could be carried and hence the judgment and decree passed against him are vitiated?"::: Downloaded on - 06/12/2018 22:56:33 :::HCHP 5
8. Since, all these questions are somehow intrinsically inter-
linked and interconnected, therefore, they are taken up together for .
consideration.
Questions No.1 to 3.
9. To answer these questions, one will have to refer to issues No.7 and 8 framed by the learned trial Court and as has been extracted hereinabove. It would be clearly evident from the said issues that the onus was upon the defendant to prove whether he had sold the disputed land to Reeta Devi from the joint land and, if so, its effect and, at the same time, the further onus was also on his shoulders to prove whether Reeta Devi and plaintiff never remained in possession of the suit land. The defendant failed to prove these issues and, therefore, the learned trial Court answered the same against him and such findings were affirmed by the learned first appellate Court.
Therefore, in the given circumstances, there was no occasion much less reason for the plaintiff to have produced the original sale deed.
10. Once, this is the factual position, then obviously, no exception can be taken to the attestation of the mutation since the defendant failed to prove that the land in question had not been sold by him initially to Reeta Devi and thereafter Reeta Devi having sold the same in favour of the plaintiff. The lis before the Court has to be ::: Downloaded on - 06/12/2018 22:56:33 :::HCHP 6 decided on the basis of the dispute raised therein and not on the basis of anything extraneous to the lis. Neither the sale deed in favour of the .
plaintiff has seriously been disputed and even if disputed the defendant had failed to prove that the land in question had not been sold by him to Smt. Reeta Devi, who in turn, had sold the same to the plaintiff and this is precisely that has been reflected in the mutations Ex. PW-2/A and Ex. PW-2/B. That being so, obviously, the defendant
11.
r to can take no exception to the findings recorded by the learned Courts below.
The substantial questions of law, as formulated above, are answered against the defendant/appellant.
12. Consequently, I find no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
( Tarlok Singh Chauhan ) th 4 December, 2018. Judge (krt) ::: Downloaded on - 06/12/2018 22:56:33 :::HCHP