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2001 DIGILAW 235 (HP)

JAGAT RAM v. SADHU RAM

2001-09-12

K.C.SOOD

body2001
JUDGMENT Kuldip Chafed Sood, J (Oral):- The judgment and decree of the learned District Judge, Kinnaur Sessions Division at Rampur Bushahr, dated November 23, 1996 is under challenge in this second appeal. 2. Arjun Dass was the owner in possession of the land comprised in khasra No. 1288/633/2 measuring 4-14 bighas situate in Chak Kothi Tehsil Kalpa District Kinnaur. This land was mortgaged by Arjun Dass on 2.6.86 BK with one sonam Zore for a mortgage amount of Rs.50/-. After the death of Sonam Zore, Gambhir Dass, his son inherited mortgagee rights. Gambhir Dass also died and the mortgagee rights were inherited by his mother Smt. Narchan Dassi. Plaintiff Sadhu Ram is son of Arjun Dass the mortgagor. This land was released from mortgage b Smt. Narchan Dassi under Section 3(e) of H.P. Relief of Agricultural Indebtedness Act, 1976 and the plaintiff became owner in possession of the land in suit. Defendant No. 1 Jagat Ram is married to daughter of Smt. Narchan Dassi. Case of the plaintiff Sadhu Ram was: 3. Jagat Ram in connivance with the field staff of the revenue department fraudulently, without the consent or knowledge of the plaintiff, got transferred in his favour 0-07-65 hectares (1 bigha) of the land, out of this land, by mutation. No.2708 dated 25.2.1983 and on the basis of this mutation, he dispossessed the plaintiff from the suit land. On 7.5.1984 defendant Jagat Ram sold the suit land to defendants No.2 to 4 by a registered sale deed dated 13.2.1984 the mutation whereof was attested on 7.5.1984. Plaintiff, it is alleged, is an illiterate person and defendant No. 1, who was working as a driver, without right, title or interest in the land in dispute got this mutation entered in his favour which is illegal and void ab-initio. 4. Plaintiff prayed for decree of declaration to the effect that mutation No.2708 dated 25.2.1983 transferring the suit land in favour of defendant No. 1 was attested fraudulently, without the conset or knowledge of the plaintiff and is, therefore, liable to be set aside and similarly subsequent sale of the suit land by defendant No. 1 in favour of defendants 2 to 4 is illegal, void and sale deed is liable to be cancelled. Plaintiff as consequential relief prayed for delivery of possession of the suit land. 5. Defendants resisted the suit. Plaintiff as consequential relief prayed for delivery of possession of the suit land. 5. Defendants resisted the suit. A joint written statement was filed by the defendants which was amended from time to time. Defendants have raised contradictory pleas even in the last amended written statement. According to the defendants, the entire land was with defendant No. 1 pursuant to an agreement between the plaintiff and defendant No. 1 in the year 1983. Defendant No.l retained the suit land in his possession and remaining land was handed over to the plaintiff. It is pursuant to this agreement that mutation was attested in respect of the suit land in favour of defendant No. 1. At later stage of the written statement, the defendants pleaded that the suit land was sold by Arjan Dass father of the plaintiff to Sonam Zore and after his death Gambhir Dass became the owner of the land and thereafter defendant No.l came in possession of this land. According to defendant No.l, the land remained in his possession peacefully, exclusively and without any interruption and he is in possession of the same for the last 25 years and he has become owner of the land by way of adverse possession. It is pleaded that in any case even if Smt. Narchan Dassi found to be mortgagee of the suit land then also defendant No. 1 has become owner as right of redemption stood extinguished. It is admitted that proceedings under Section 3 of the H.P. Relief of Agricultural Indebtedness Act, 1976 were taken by the plaintiff against Smt. Narchan Dassi and property in dispute was redeemed. However, it is pleaded that defendant No.l continued to the in possession of this land. The possession was never delivered to the plaintiff. It is alleged that the order of Collector for redemption of the land was illegal as period of limitation had expired when the order was passed. The order in appeal was also illegal for same reasons. 6. On the pleadings of the parties, following issues were settled by the learned trial Court: 1. Whether the suit is not properly valued for the purposes of court fee and jurisdiction, if so, what is its value ? OPP. 2. Whether the plaintiff is barred by his act and conduct to file this suit? OPP. 3. Whether the suit is within limitation? OPP. 4. Whether the suit is not properly valued for the purposes of court fee and jurisdiction, if so, what is its value ? OPP. 2. Whether the plaintiff is barred by his act and conduct to file this suit? OPP. 3. Whether the suit is within limitation? OPP. 4. Whether the plaint is liable to be rejected for want of proper verification? OPD. 5. Whether the mutation No.2708 dated 25.2.83 was attested fraudulently and in connivance with defendants and in the absence of the plaintiff? OPP 5-AWhether the transfer of the suit land by mutation No.2708 dated 25.2.83 is liable to be cancelled for want of registration? OPP 6. If issue No.5 is proved, whether mutation No.8 dated 7.5.84 s also liable to be cancelled? OPP 7. Whether the defendant No.l has become owner of the suit land by adverse possession? OPD 7-AWhether the land in question was redeemed by the plaintiff with the possession, as alleged? OPP 7-B Whether there was a compromise between the parties in the year 1983, as alleged by the defendat? OPD 7-CWhether the plaintiffs right of redemption stood extinguished by , afflux of time, as alleged? OPD 7-DWhether the order of Collector passed on dated 24.11.77 can be challenged at the stage, as alleged? OPD 7-E whether the plaintiff has no locus-standi to file the present suit? OPD 8. Relief. 7. Learned trial Court found that the suit was within the period of limitation. Plea of the defendants that defendant No. 1 was owner by adverse possession was rejected. Under Issue No.7-A it was found that the suit land which was mortgaged with Smt. Narchan Dassi was redeemed by the plaintiff. Plea of defendants that defendant No.l had become owner of the suit land in view of the compromise in the year 1983 was also rejected. 8. Dissatisfied, defendants filed an appeal before the learned District Judge, Kinnaur Sessions Division at Rampur Bushahr, which too was dismissed by the impugned judgment and decree. 9. Still aggrieved the defendants are in this second appeal. 10. This appeal was admitted on December 9, 1997 on the following substantial questions of law : 1. Whether on account of the mis-reading and misappreciation of the leadings of the parties and due to failure to determine the point i controversy, the findings as recorded against appellants are vitiated. 2. Still aggrieved the defendants are in this second appeal. 10. This appeal was admitted on December 9, 1997 on the following substantial questions of law : 1. Whether on account of the mis-reading and misappreciation of the leadings of the parties and due to failure to determine the point i controversy, the findings as recorded against appellants are vitiated. 2. Whether the claim for redemption being beyond limitation could not I be entertained by the authorities under the provisions of HP Relief of / Agricultural Indebtedness Act-1976? 3. Whether the claim of the plaintiff was beyond limitations and could not be entertained by the Civil Court? 4. Whether in the absence of challenge to the validity of sale deed and without valuing suit for purposes of court fee and jurisdiction the suit could not be entertained & determined and sale transaction is bonafide? 5. Whether there has been misreading and misappreciation of the oral and documentary evidence which vitiates the findings? 11. I have heard Mr. G.D. Verma, learned Senior Advocate, assisted by Mr. Romesh Verma, Advocate, and Mr. Bhupender Gupta, learned Senior Advocate, assisted by Mr. Neeraj Gupta, Advocate. I have also been taken through the record by the learned Advocates for the parties. QUESTION NO. l 12. Mr. Verma, learned Senior Advocate, for the appellants has not been able to show that how the pleading of the parties have been misconstrued, misread or misappreciated by the courts below. Infact, clear case of the plaintiff was that entire land comprised in khasra No. 1288/633/2, of which the suit land is a part, was mortgaged by his father Arjun Dass with Sonam Zore. Mortgagee rights were succeeded by Smt. Narchan Dassi and in view of the provisions of Section 3(3) of the H.P. Relief of Agricultural Indebtedness Act this land was redeemed/released from the mortgage. On the other hand, case of the defendants was that defendant No. 1 became owner in possession of this land pursuant to an agreement between the plaintiff and defendant No. 1. The other plea was that defendant No. 1 is in adverse possession of this land. There is no ambiguity in the pleadings and the pleadings have correctly been read and appreciated by the courts below. No question of law arises. Infact, the learned District Judge has noticed the pleadings of the parties with considerable detail in his judgment. The other plea was that defendant No. 1 is in adverse possession of this land. There is no ambiguity in the pleadings and the pleadings have correctly been read and appreciated by the courts below. No question of law arises. Infact, the learned District Judge has noticed the pleadings of the parties with considerable detail in his judgment. In para 11 of the judgment, he has mentioned that only controversy involved in the case was whether the respondent-plaintiff gave one bigha of land to the appellants-defendants pursuant to the compromise when this land was redeemed from Smt. Narchan Dassi under Section 3(3) of the H.P. Relief of Agricultural Indebtedness Act, 1976. Thus, no question of law is involved on this aspect of the case. QUESTION NO.2 13. Mr. Verma, learned Senior Advocate, urged that the land in question was mortgaged on 2.6.86 BK which corresponds to 1929 and this land was redeemed in the year 1978 by an order of the Assistat Collector (Sub Divisional Magistrate, Kalpa, District Kinnaur) dated 29.3.1978 (Ex. PW- 1/C). It appears; Smt. Narchan Dassi carried an appeal against this order which too was dismissed by the Collector Kinnaur on 24.11.77. It was directed by the impugned order that possession of the land comprised in khasra No. 1288/633 measuring 4-14 bighas situate in Chak Kothi, Tehsil Kalpa be delivered to the debtor/applicant Sh. Sadhu Nand. It may be noticed that defendant Jagat Ram was not mortgagee nor stepped into the shoes of mortgagee, so far this land was concerned. He does not even claim to be so in his written statement. Case of the defendant was that after the death of Smt. Narchan Dassi he came into possession of this land. He was neither mortgagee nor stepped into the shoes of mortgagee, therefore, it is not open to the defendants to raise the plea that order of redemption of mortgage was beyond the period of limitation. This apart Smt. Narchan Dassi had carried an appeal before the Collector against redemption of the mortgage which was also dismissed. Plaintiff filed the present suit on the basis of title and unless defendant Jagat Ram was able to show better title to possess the suit would be maintainable. QUESTION NO. 3 14. The contention of Mr. This apart Smt. Narchan Dassi had carried an appeal before the Collector against redemption of the mortgage which was also dismissed. Plaintiff filed the present suit on the basis of title and unless defendant Jagat Ram was able to show better title to possess the suit would be maintainable. QUESTION NO. 3 14. The contention of Mr. Verma, is that the plaintiff filed this suit for declaration and possession on 3.8.84 whereas mutation of transfer of the land was attested in favour of the defendants on 25.2.83. The suit having been filed after one year of the attestaton of mutation was beyond the period of limitation. Learned trial Court held that the suit was primarily for declaration and possession of the land on the basis of title. Limitation for filing such a suit for , declaration on the basis of title is three years and for possession is twelve years. I hardly need to emphasize that mutation does not confer any title and, therefore, it was not necessary for the plaintiff to have that order set aside. What necessitated the plaintiff to approach the court was his dispossession under the garb of mutation of transfer in favour of defendant No. 1 and, therefore, plaintiff would be covered by Article 65 of the Limitation Act, which provides limitation of twelve years from the date of dispossession from the immovable property or any interest therein on the basis of the title. The question is accordingly decided. QUESTION NO. 4 15. Mr. Verma learned Senior Advocate, for the appellants contended that suit was not properly valued for the purposes of court fee and jurisdiction. He submitted that the sale deed executed by defendant No.l in favour of defendants 2 to 4 in respect of the suit land was sought to be cancelled by the plaintiff. Therefore, the plaintiff was to pay court fee on the consideration of the sale deed of Rs.30,000/-. It may be noticed that plaintiff prayed for declaration that the mutation transferring the suit land to defendants on 25.2.83 was attested fraudulently without consent or knowledge of the plaintiff and was illegal, and liable to be set aside and subsequent sale made by defendant No. 1 in favour of defendants 2 to 4 by a registered sale deed too was illegal, bad and liable to be concelled. Plaintiff also prayed for possession of the suit land. 16. Plaintiff also prayed for possession of the suit land. 16. Section 7 of the Himachal Pradesh Court Fees Act, 1968 provides for Computation of fees payable in certain kinds of suits. In suits for declaratory decree and consequential relief, the suit is to be valued for the purposes of court fee according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. In all such suits the plaintiff is to state the amount at which he valued the relief sought provided that the minimum court fee of Rs.thirteen is paid. However, where the relief sought is with reference to any property such valuation cannot be less than the value of the property calculated in the manner provided for in paragraph (v) of the Section. Paragraph (v) of Section 7 provides that where the subject matter of the suit is land which forms an entire estate or a definite share of an estate paying annual revenue to Government and where such revenue is permanently settled - then the value of the suit for the purposes of court fees shall be ten times of the land revenue so payable. Relevant paragraphs (iv) and (v) of Section 7 of the Himachal Pradesh Court Fees Act, 1968 may be reproduced for the convenience: (iv) in suits- (a) for movable property of no market value for movable property where the subject matter has no market value as, for instance, in the case of documents relating to title, (b) to enforce a right to share in joint family property- to enforce the right to share in any property on the ground that it is a joint family property, (c) for a declaratory decree and consequential relief- to obtain a decl, tory decree or order where consequential relief is prayed; (d) for an injunction- to obmin an injunction; (e) for easements- for a right to some benefit (not herein otherwise provided for) to arise out of land and (f) for accounts- for accounts according to the amount at which the relief sought is valued in the plaint or memorandum of appeal; In all such suits the plaintiff shall state the amount at which the values the relief sought; Provided that the minimum court fee in each case shall be thirteen rupees; Provided further that in suit coming under sub clause (c) in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by paragraph (v) of this section (v) for possession of lands, houses and gardens- In suit for the possession of lands houses and gardens according to the value of the subject matter and such value shall be deemed to be-Where the subject matter is land. and- (a) Where the land forms on entire estate, or a definite share of an estate paying annual revenue to Government; or forms part of such an estate and is recorded in the Collectors register as separately assessed with such revenue; and such, revenue is permanently settled ten times the revenue so payable; (b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government or forms part of such estate and is recorded as aforesaid; and such revenue is settled, but no permanently-, ten time the revenue so payable; (c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue; and net profits have arisen from the land during the year next before the date of presenting the plaint-fifteen times such net profits, but where no such net profits have arisen therefrom- the amount at which the Court shall estimate the land with reference to the value of similar land in the neighborhood; (d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above mentioned- the market value of the land. (Emphasis supplied) 17. In the present case, suit is for declaration that the plaintiff is owner in possession of the land and transfer of the land made by defendant No.l in favour of defendants No.2 to 4 is illegal and such sale deeds are liable to be cancelled and for consequent possession of land. This suit indisputably shall be governed by Section 7 paragraph 4(c) read with para (v) of the Himachal Pradesh Court Fees Act, 1968. Thus, the valuation for the purposes of court fee and jurisdiction in the present ease is not the amount of the sale consideration but ten times and thirteen time of the annual land revenue for which the suit has been assessed and rightly so in my view. No substantial question of law arises. QUESTION NO.5 18. Lastly, Mr. Verma, urged that the both the courts below have misappreciated the oral and documentary evidence which has vitiated the findings. I have gone through the record. The submission is without any foundation. No substantial question of law arises. QUESTION NO.5 18. Lastly, Mr. Verma, urged that the both the courts below have misappreciated the oral and documentary evidence which has vitiated the findings. I have gone through the record. The submission is without any foundation. In any event, misappreciation of evidence on record is not a substantial question of law unless it is shown that the findings are perverse o could not have been reached by any reasonable person’ on the basis of the evidence on record. 19. In Vidhyadhar v. Manikrao & Anr. 1999 (3) SCC 573 their Lordships held that:m"the findings of fact concurrently recorded by the trial Court as also by the lower appellate court could not have been legally upset by the High Court in a second appeal under Section 100 of the Code of Civil Procedure unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion." 20. The Apex Court in Ishwar Dass Jain (Dsad) through LRs v. Sohan Lal (Dead) by LRs (2000) 1 SCC 434 held that there are only two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if ommitted would lead to an opposite conclusion. 21. In the preset case, I find that the findings arrived at by the trial Court and the appellate court, as a final court of fact, are based on proper appreciation of evidence and the same by no stretch can be said to be perverse or based on no evidence and such findings do not call for any interference in this second appeal. 22. I find no me/it in this appeal and the same is dismissed with costs.