Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 315 (HP)

UMAR DIN v. JAMNA DASS

2002-11-21

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—The appellant/defendant (hereafter referred to as the defendant) has preferred the present second appeal against the judgment and decree dated 30.4.2001 passed by the learned District Judge, Una in Civil Appeal No. 93 of 98 whereby the judgment and decree dated 25.5.1998 passed by the learned Sub Judge 1st Class, Amb has been affirmed and the first appeal of the defendant has been dismissed. 2. Brief facts leading to the presentation of this appeal are that the respondents/plaintiffs (hereafter referred to as the plaintiffs) instituted a suit against the defendant for possession of land measuring 0-00-63 hectares comprising Khasra No. 679, Khewat/Khatauni No. 14 min/21, situate in Up-Mohal Aloh, Mauza Lohara, Tehsil Amb, District Una, after removal of superstructure raised over the said land. 3. Case of the plaintiffs, as made out in the plaint, is that land comprising old Khasra Nos. 12334/12156 to 12158/5060 measuring 0-6 marlas was possessed by the plaintiffs who had their residential Abadi on a part of the said land and the vacant land was used by them as Bartan Abadi. However, at the time of settlement new Khasra Nos. 678 and 679 were allotted to the said land. The defendant, who is a clever person having no regard to law about 8/9 years before the institution of the suit, trespassed over the suit land by extending his Abadi thereon and got the entries of Kabiz made in his favour though he has no right, title or interest to do so. The plaintiffs requested the defendant to admit their claim and to hand over the vacant possession of the suit land to them but in vain, hence, the suit. 4. The defendant contested the suit. In the written statement, he raised the preliminary objections that the plaintiffs are guilty of suppreso veri and are estopped by their act and conduct to file the present suit, that the suit is not properly valued and is time barred. On merits, it is averred that the suit land was previously owned by the plaintiffs but their Abadi does not exist thereon and the suit land including the structure raised thereon by the defendant, is in his possession since the time of his father. Previously the defendant had Chapparposh Abadi on the suit land which was burnt in the year 1947 at the time of partition of India. Previously the defendant had Chapparposh Abadi on the suit land which was burnt in the year 1947 at the time of partition of India. At that time the plaintiffs were not even the owners of the suit land. Plaintiffs instituted a suit for possession of the suit land against the defendant and others in the year 1967 wherein they admitted the possession of the defendant even prior to 3 or 4 years of the filing of the suit. The suit was though decreed but physical possession was never obtained by the plain tiffs. Being clever persons plaintiffs in connivance with the revenue officials and at the back of the defendant got entries made in the revenue records in their favour. However, on the spot and in the presence of the plaintiffs, the defendant in the year 1970 put guarders over the first roof of his structure and put second roof of slates and thereafter he is continuously residing in the structure a part of which is on the suit land and remaining part is on land Khasra Nos. 680/1 and 681. The defendant further claimed that the possession of the defendant over the suit land is continuous, open and hostile to the ownership and title of the plaintiffs for the last more than 12 years and he has become owner of the suit land and the title of the plaintiffs stand extinguished. It is further averred that during settlement the possession of the suit land had been recorded in the name of the defendant as per the position on the spot. Thus, the defendant denied the claim of the plaintiffs. 5. Plaintiffs filed replication wherein they denied the grounds of defence, as taken in the written statement, and reiterated their claim, as made out in the plaint. It has further been averred that in execution of the decree passed in the earlier suit the plaintiffs were put in possession of the suit land alongwith other land on 15.6.1968 and the defendant encroached upon the suit land thereafter, about 8 or 9 years before the institution of the suit. 6. On the pleadings of the parties, the learned trial Judge framed the following issues:— 1. Whether the plaintiffs are owners of the suit land and entitled for decree of its possession, as prayed? OPP 2. Whether plaintiffs are estopped from filing the suit? OPD 3. 6. On the pleadings of the parties, the learned trial Judge framed the following issues:— 1. Whether the plaintiffs are owners of the suit land and entitled for decree of its possession, as prayed? OPP 2. Whether plaintiffs are estopped from filing the suit? OPD 3. Whether defendant has become owner of suit land by way of adverse possession, as alleged? OPD 4. Relief. 7. After taking into account the material on record, the learned trial Judge decided Issue No. 1 in favour of the plaintiffs and Issue Nos. 2 and 3 against the defendant and as a consequence decreed the suit. 8. Feeling aggrieved, defendant preferred an appeal against the decree and judgment of the trial Court which was dismissed by the learned District Judge, Una by the impugned judgment. Hence, this appeal. 9. I have heard the learned Counsel for the parties and have also gone through the records. 10. This appeal has been admitted for hearing on the following substantial questions of law : "1. Whether document Ex. P5 could not be read in evidence being not proved in accordance with law and the impugned judgments and decrees as passed by the courts below stand vitiated for heavily relying upon the same? 2. Whether suit as laid by the plaintiffs is not maintainable without challenging the orders dated 16.7.1988 passed in Missal No. 365 of 1988 and non consideration of this aspect by the courts below has vitiated the findings." Substantial Question No. 1 11. It was contended by the learned Counsel for the defendant that the document Ext. P 5, which is a copy of Rojnamcha Wakiati, was not proved in accordance with law. Even its admission in evidence was objected to by the defendant when it was tendered in evidence for the plaintiffs. Therefore, this document could not be read in evidence whereas both the Courts below have heavily relied on its contents to come to the conclusion that the defendant had been dispossessed from the suit land in execution of a warrant on 15.6.1968. It was further contended that had Ext. P 5 not been relied upon by the courts below, there is evidence on record which admits of the only conclusion that the defendant/his predecessor-in-interest had been in possession of the suit property since pre-partition days and that their possession was hostile to the true owner, therefore, the suit deserves to be dismissed. It was further contended that had Ext. P 5 not been relied upon by the courts below, there is evidence on record which admits of the only conclusion that the defendant/his predecessor-in-interest had been in possession of the suit property since pre-partition days and that their possession was hostile to the true owner, therefore, the suit deserves to be dismissed. 12. On the other hand, the learned Counsel for the plaintiffs has contended that Ext. P 5 being a copy of Rapat Rojnamcha maintained by the Patwari in the discharge of his official duty, is per se admissible, therefore, has rightly been admitted in evidence and read as such. It was further contended that in view of the contents of Ext. P 5, there was no continuity in the possession of the defendant over the suit land from which he stood dispossessed on 15.6.1968. It is not the case of the defendant that he again encroached upon the suit property immediately after such dispossession and thereafter remained in adverse possession for twelve years before the institution of the suit. It was further contended that in view of the contents of Ext. P 5, read with other evidence on record, the Courts below have rightly held that the defendant had not acquired title to the suit property by virtue of his alleged adverse possession and, therefore, have rightly decreed the suit. 13. Ext. P 5 is a copy of the Rojnamcha Wakiati of Patwar Circle Lohara for the year 1967-68 and is duly certified by the Patwari. The short question involved is whether this document can be treated as a certified copy of the public document which is per se admissible or it was required to be proved by summoning the original record. 14. Section 74 of the Evidence Act defines a public document as under: "74. Public documents.—The following documents are public documents— (1) documents forming the acts or records of the acts— (1) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; (2) public records kept in any State of private documents". 15. 15. It is clear on a bare reading of the above provisions that the documents forming the acts or records of acts of the State and the public functionaries and the transactions which such functionaries are required to enter in books/ registers in the course of their public duties and which occur within the circle of their own personal knowledge and observations as such functionaries are the public documents. 16. Section 168 of the H.P. Land Revenue Act (hereafter referred to as the Act) empowers the Financial Commissioner, inter alia, to make rules consistent with the Act for : (i) regulating the procedure in cases where persons are entitled to inspect records of Revenue Officers or records or papers in the custody of village officers, or to obtain copies of the same and prescribing the fees payable for searches and copies; (ii) prescribing forms for such books, entries, statistics and accounts necessary to be kept, made or complied in revenue offices, or submitted to any authority; and (iii) generally for carrying out the purposes of this Act. The rules so made by the Financial Commissioner shall be effective when sanctioned by the State Government. 17. The Himachal Pradesh Land Records Manual, 1992 contains, inter alia, the rules made/instructions issued by the Financial Commissioner in exercise of the aforesaid powers. The said Manual came into force in Himachal Pradesh with effect from 15th of December, 1992 vide Government of H.P. Revenue Department Notification dated 3.12.1992 as approved by the Governor of the State. Thus, the Himachal Pradesh Land Records Manual contains the statutory rules/instructions as issued by the Financial Commissioner after approval of the State Government. The said Manual repealed the Himachal Pradesh Land Records Manual, 1951 which also contained almost the similar provisions. Clause 59 of Chapter III of the said Manual provides that the Patwari, inter alia, will maintain a diary (Rojnamcha) of his whole Circle. Clause 75 further provides that the Patwari is required to keep diary (Rojnamcha), Clause 77 provides that the various occurrences as specified therein must be noted in the diary (Rojnamcha) on the day when they came to the notice of the Patwari along with the manner in which he came to know about such occurrences which includes the execution of any decree of Court affecting the land, its rent or its produce. Clause 52 of Chapter III provides for inspection of records and grant of certified extracts thereof by the Patwari and permits him to supply copies of extracts from the diary (Rojnamcha) on payment of a prescribed fee by the applicant. 18. It is thus clear that Ext. P 5 is the copy of a document which consists of the acts of an official of the Revenue Department who is required to maintain a diary in the course of his public duties and which contains an occurrence which occurs within the knowledge and observation of the Patwari or is his own act as an official of the Revenue Department. Thus, Rojnamcha as maintained by the Patwari is a public document as defined in Section 74 of the Evidence Act. 19. Section 76 of the Indian Evidence Act provides that every public officer having custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of legal fee. 20. Section 77 of the Evidence Act, which provides for proof of public documents, reads as follows: "77. Proof of documents by production of certified copies.—Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies." 21. It is evident from a bare reading of the aforesaid provisions that where the custodian of the public document, which any person has a right to inspect, has given certified copy on demand, such certified copy may be produced in proof of the contents of the public document or its parts. Thus, a duly certified copy of Rapat Rojnamcha as maintained by the Patwari, is per se admissible in evidence in view of Section 77 of the Evidence Act. 22. In view of the above position in law, it cannot be said that the copy of Rapat Rojnamcha Wakiati Ext. P 5 could not and should not have been read in evidence by the Courts below. 23. As per the contents of Ext. P 5, the defendant was dispossessed from the suit land pursuant to a warrant of possession on 15.6.1968. P 5 could not and should not have been read in evidence by the Courts below. 23. As per the contents of Ext. P 5, the defendant was dispossessed from the suit land pursuant to a warrant of possession on 15.6.1968. It is so stated even by PW 1 and not denied by the defendant (DW 4) who has betrayed ignorance about his dispossession on 15.6.1968 pursuant to a warrant issued by the Court, though he admits that plaintiffs suit was earlier decreed against him for possession of the suit land. 24. The case of the defendant is that he had been in adverse possession of the suit land since pre partition days. However, this version is belied by his own statement when he admits that the suit land was purchased by the plaintiffs and their co-sharers from the Government of India and they were put in possession by the Patwari on the spot. He has further admitted that after putting the plaintiffs and their co-sharers in possession, even a mutation was attested in their favour. Thus, he admits the entry into and possession of the plaintiffs on the suit land during post partition days by virtue of a sale. It appears that some time thereafter the defendant encroached upon the suit land and some other land regarding which the plaintiff instituted a suit against the defendant which, admittedly, was decreed in favour of the plaintiff for possession on 28.7.1967. The contents of Ext. P 5 then reveals that the defendant was dispossessed from the suit land. The objections about his dispossession, as were admittedly filed, were dismissed vide order Ext. P 4 after he received some payment from the decree holder. Copy of Jamabandi for the year 1968-69 Ext. P 6 shows the suit land, which at that time comprised Khasra Nos. 12334/12156 to 12158 out of which the present Khasra No. 679 has been carved out vide copy of Misal Hakiat Bandobast Jadid Ext. P 1, in possession of the plaintiff Jamna Dass and his brother Durga Dass and the description of the suit land is Barani. So are the entries in the copy of Jamabandi for the years 1973-74 Ext. P 7 and copy of Jamabandi for the years 1979-80 Ext. P 3. However, in the Misal Hakiat Bandobast Jadid for the years 1990-91 Ext. So are the entries in the copy of Jamabandi for the years 1973-74 Ext. P 7 and copy of Jamabandi for the years 1979-80 Ext. P 3. However, in the Misal Hakiat Bandobast Jadid for the years 1990-91 Ext. P 1 the suit land is shown in the ownership of the plaintiffs but in possession of the defendant. It appears from the remarks column dated 16.9.1988 that on the basis of a case instituted in the year 1988, the Assistant Collector II Grade directed making of the aforesaid entries regarding possession of the suit land in favour of the defendant. According to the plaintiffs, the defendant entered upon the suit land about eight or nine years before the institution of the suit which was instituted on 18.3.1996. There is nothing in the pleadings of the defendant nor there is any evidence to suggest as to when the defendant entered upon the suit land after his dispossession on 15.6.1968. Thus, the version of the plaintiffs that they were dispossessed by the defendant eight or nine years before the institution of the suit, is duly supported by the evidence particularly the copies of the Jamabandis on the record. 25. It may also be pointed out that the findings of the Courts below could be dislodged only if the document Ext. P 5 was held to be inadmissible in evidence or not proved in accordance with law. However, having held to the contrary, there is no reason to interfere with the concurrent findings of facts recorded by the Courts below. Substantial Question No. 2 26. There is nothing on the record to show that any order was passed in Misal No. 365 of 1988 in the presence of the plaintiffs and they had knowledge of such order. Even otherwise, if the defendant has been ordered to be recorded in possession of the suit land in the year 1988, the plaintiffs could sue for possession within twelve years of the trespass over the suit land by the defendant inasmuch as the said order does not confer any title on the defendant. 27. As a result, there is no merit and substance in the present appeal which is accordingly dismissed. Parties to bear their own costs.