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2000 DIGILAW 54 (HP)

JHILO DEVI v. DHANI RAM

2000-03-27

M.R.VERMA

body2000
JUDGMENT M. R. Verma, J.: Feeling aggrieved by the judgment and decree dated 31.3.1999 passed by the learned Additional District Judge-II, Kangra at Dharamshala, in Civil Appeal No. 61/D/XIII/97, dismissing the appeal of the appellants/defendants (hereinafter referred to as the defendants) against the judgment and decree dated 8.5.1997 passed by the learned Senior Sub-Judge, Kangra, decreeing the suit of the plaintiff/respondent (hereafter referred to as the plaintiff), the defendants have preferred the present appeal. 2. Brief facts leading to the presentation of this appeal are that the plaintiff instituted a suit for declaration that he is the owner in possession as a co-sharer to the extent of l/4th share, comprising Khata No. 73 Khatauni Nos. 135 to 137, Kitas 18, measuring 0-74-70 hectares, situated in Mohal Balla, Mauja Tadnuigal, Tehsil Dharamshala, District Kangra (hereafter referred to as the Suit Land) and the name of original defendant Damodar, since deceased, (now being represented by his legal representatives) recorded as owner in possession in the revenue records is against the legal and factual position and is liable to be deleted and for permanent injunction restraining the defendants from proclaiming to be the owners in possession and from interfering in the suit land. Briefly stated the case of the plaintiff, as made out in the plaint, is that in the revenue records the suit land is entered in the name of Makholi, Dhani Ram and Chando Ram sons of Relu to the extent of 1/2 share and Damodar (deceased defendant) and Sripat sons of chaudhury to the extent of 1/2 share. However, share of said Damodar to the extent of 4 kanals 17 marlas (i.e. l/4th share) in the suit land was attached and sold in execution of a decree in Execution Petition No. 160/1970 titled Chingo Ram v. Damodar Ram. The aid share of Damodar was purchased in auction by the plaintiff vide sale certificate dated 20.7.1972. At a later stage in execution of warrant of possession the plaintiff was put in possession of the suit land as per the copy of Rapt Roznamcha enclosed with the plaint. The plaintiff thereafter claims to be the owner in possession as a co-sharer in the suit land. However, the name of Damodar through over-sight or clerical error continued to be recorded in the revenue papers, though he ceased to be the owner because of the sale of his share in execution of the decree. The plaintiff thereafter claims to be the owner in possession as a co-sharer in the suit land. However, the name of Damodar through over-sight or clerical error continued to be recorded in the revenue papers, though he ceased to be the owner because of the sale of his share in execution of the decree. The plaintiff asked Damodar several times to get his name removed from the revenue records but of no avail. Hence the present suit. 3. The original defendant contested the suit. In his written statement he raised preliminary objections that the suit is bad for non-joinder of necessary party, that the plaintiff has neither locus standi nor cause of action to sue, that the plaintiff is estopped by his act and conduct to file the present suit and the defendant had become owner of the suit land by virtue of adverse possession since 13.10.1972. On merits it was averred that the area falling to the share of the defendant has not been correctly stated in the plaint which requires amendment and that even after the alleged delivery of possession to the plaintiff, the defendant continued in possession and did not permit the plaintiff to occupy the suit land. He had raised loan over his share in the suit land by mortgaging the same in his capacity as owner and the plaintiff has never come to possess the suit land. It is further claimed that because of the hostile, notorious, open possession of the defendants over the suit land since October, 1972, to the knowledge of the plaintiff, the plaintiff is now estopped from filing the present suit. The defendant had further claimed that the plaintiff tried to get partition and sanctioned mutation in his favour, but his attempt was foiled and if he had any title to the suit property that too foiled because of the hostile, nortorious, open possession of the defendant over the suit land since October, 1972. 4. The plaintiff filed replication wherein the grounds of defence as taken in the written statement were denied, and the averments made in the plaint were re-affirmed. 5. On the pleadings of the parties, the learned trial Judge framed the following issues: - 1. Whether the plaintiff is owner qua the recorded share in the land in suit as claimed ?OPP. 2. 5. On the pleadings of the parties, the learned trial Judge framed the following issues: - 1. Whether the plaintiff is owner qua the recorded share in the land in suit as claimed ?OPP. 2. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for ? OPP. 3. Whether the suit is bad for non-joinder of necessary parties ? OPD. 4. Whether the plaintiff has no locus standi and cause of action as alleged? OPD 5. Whether the plaintiff is estopped by his act and conduct from filing the suk ? OPD. 6. Whether the defendant has become owner of the land in suit by way of adverse possession ? OPD. 7. Relief. 6. Vide judgment dated 8.5.1997 learned trial Judge decided issue Nos. 1 and 2 in favour of the plaintiff and the remaining issues were decided against the defendants and as a consequence the suit was decreed. 7. The defendant preferred the appeal which was heard and dismissed by the learned Additional District Judge-H, Kangra at Dharamshala, by the impugned judgment Hence the present appeal. 8. This appeal has been admitted for hearing on the following substantial questions of law :- 1. Whether judgments and decrees passed by the Courts below stand vitiated for not properly identifying the land in suit by the plaintiff? 2. Whether both the Courts below misread and mis-appreciated the documents Ex. P-I and P-II, thereby vitiating the impugned judgments and decrees ? 3. Whether defendants proved maturing of the title by adverse possession but courts below discarded the same by misreading and mis-appreciating evidence thereby vitiation impugned judgments and decrees ? 9. I have heard the learned Counsel for the parties and have also gone through the records. 10. Substantial question No. 1 : There is nothing on the record nor has been pointed out which may create doubt about the proper identity of the suit land. In fact the subject-matter of the suit is l/4th share in the land specifically detailed in paras 1 and 2 of the plaint. This being a share in un- partitioned land, it could in now way be described more properly than as described in the plaint as aforesaid and as supported by evidence in the form of copy of Jamabandi Ex. PD, copy of sale certificate Ex. P-l and Nakal Roznamcha Ex. P-2. This being a share in un- partitioned land, it could in now way be described more properly than as described in the plaint as aforesaid and as supported by evidence in the form of copy of Jamabandi Ex. PD, copy of sale certificate Ex. P-l and Nakal Roznamcha Ex. P-2. Therefore, the question of proper identity of the land in suit is not involved at all in this appeal. 11. Substantial questions No. 2 and 3: Since both these questions are raised on the plea of mis-reading and mis-appreciation of the evidence, therefore, are taken up together for consideration. Be it stated that conclusions arrived at by the courts below on appreciation of evidence on record may be interfered with by the High Court in second appeal only if it is shown that such courts have failed to take into account only relevant and material evidence or have taken no account by inadmissible evidence. That is not the case here. There is no dispute that deceased Damodar had l/4th share in the land specified in paras 1 arid 2 of the plaint. It is also not in dispute that the said share was sold in execution of a decree in case titled Chingu Ram v. Damodar. The plaintiff was the auction purchaser in whose favour sale certificate Ex. P-1 was issued by the executing Court. Pursuant to the orders of the executing court, the plaintiff was put in possession of the suit land to the extent of the share purchased by him at the auction vide report Rojnamcha Vakyati Ex.P-2, on 13.11.1972 in the presence of deceased defendant Damodar, Vayas Dev (PW-2), Sripat, a co-sharer in the suit land, Relu Ram (father of the plaintiff and one of the co-sharers in the suit land), Gian Chand, Makholi Ram and Dhania, decree-holder. The defendant in the written statement has admitted this delivery of possession, but claimed that despite such delivery he continued in possession. It is not clarified as to how could the defendant remain in possession after admitted delivery of possession unless he has ousted the plaintiff from possession and re-occupied the suit land. PW-1 plaintiff Dhani @ Ram has stated that after the handing over of possession of the suit land, he has been in possession thereof and PW- 2 Vayas Dev has fully supported this version. PW-1 plaintiff Dhani @ Ram has stated that after the handing over of possession of the suit land, he has been in possession thereof and PW- 2 Vayas Dev has fully supported this version. Statements of DWs are incapable of rebutting the evidence led by the plaintiff, nor do such statements prove the claim of the defendants that they have acquired title to the suit land by virtue of adverse possession. The mere fact that the defendants had mortgage the suit land with a bank does .not prove acquisition of title by adverse possession. Apparently such a transaction could be entered into on the basis of the entries in the revenue record which were not corrected to bring them in conformity with the title acquired by the plaintiff vide sale certificate Ex. P-l and the possession obtained by Rapat Rojnamcha Vakyati Ex. P-2. The findings of the fact recorded by the courts below in this regard are based on proper appreciation of the evidence on record and this is not a case of taking into account any inadmissible evidence or ignoring of material and relevant evidence. Thus, even these questions are not involved in the matter and the finding of the courts below, therefore, do not call for any interference. 12. As a result, there is no merit and substance in this appeal which is, accordingly, dismissed. Costs on parties.