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2008 DIGILAW 596 (HP)

Jaswant Singh v. Ashok Kumar Gautam

2008-12-12

RAJIV SHARMA

body2008
JUDGMENT (Rajiv Sharma, J.) - This regular second appeal is directed against the judgment and decree dated 12.3.1998 passed by the learned District Judge, Sirmaur in Civil Appeal No. 115-CA/13 of 1997. 2.Brief facts necessary for adjudication of this regular second appeal are that the appellant/plaintiff (hereinafter referred to as the plaintiff for convenience sake) had filed civil suit praying for decree for permanent injunction and declaration. The suit was resisted by the respondent/defendant (hereinafter referred to as the defendant for convenience sake). The trial Court dismissed the civil suit on 16.10.1997. The plaintiff preferred an appeal before the learned District Judge, Sirmaur against the judgment and decree dated 16.10.1997. The learned District Judge, Sirmaur dismissed the appeal on 12.3.1998. 3.The regular second appeal was admitted on 1.12.1998. It appears that inadvertently attention of the Court was not drawn to the substantial questions of law framed by the appellant filed along with the grounds of appeal. This regular second appeal now will be deemed to have been admitted on the following substantial questions of law framed at page 4 of the Paper Book : 1. Whether the plaintiff who was held to be owner of the suit land can be denied relief of permanent prohibitory injunction? 2. Whether it stood proved that the land of plaintiff/appellant was reduced from 885.23 sq. mtr. to 811.13 sq. mtr. by settlement authorities ? 3. Whether in view of the pendency of appeal before settlement authorities injunction could have been denied in the facts and circumstances of the case? 4. Whether the Court below has misappreciated the evidence oral and documentary on record? 4.Mr. Baldev Singh has strenuously argued that the judgments and decree passed by both the learned Courts below are not sustainable. He contended that both the Courts below have mis-read the oral and documentary evidence led by the parties. 5.Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate have supported the judgments and decree passed by both the learned Courts below. 6.I have heard the parties and have perused the record carefully. 7.Since the substantial questions of law are inter-connected and inter-linked, they have been taken up together for disposal of the regular second appeal. 8.The plaintiff has appeared as PW-1. He has deposed that land was purchased by his father and is in his possession. He has not filed copy of the sale deed. 7.Since the substantial questions of law are inter-connected and inter-linked, they have been taken up together for disposal of the regular second appeal. 8.The plaintiff has appeared as PW-1. He has deposed that land was purchased by his father and is in his possession. He has not filed copy of the sale deed. His principal stand was that in the copy of jamabandi for the year 1973-1974, land was shown measuring 885.23 square meters. However, during the settlement proceedings, the same was reduced to 811.13 square meters. 9.The plaintiff should have approached the revenue authorities for correction of the revenue records. He has also not produced the records of the settlement proceedings. He had admitted that he had filed an appeal before the Settlement Officer but copy of the appeal has not been brought on record. The best evidence i.e. the sale deed has been with held by the plaintiff. In absence of the sale deed, the plea of the appellant that the area has been reduced on the basis of the copy of Jamabandi for the year 1973-74 has not been substantiated. Their Lordships of the Hon’ble Supreme Court have held in State of Himachal Pradesh v. Keshav Ram and others, AIR 1997 SC 2181 that declaration cannot be made merely on the basis of the copy of jamabandi. Their Lordships have held as under :- “In view of the rival contentions, the question that arises for consideration is whether the plaintiffs have been able to establish their title and the courts below were justified in declaring plaintiff’s title. As has been stated earlier the only piece of evidence or which the courts below relied upon to decree the plaintiffs’ suit is the alleged order made by the Assistant Settlement. Officer directing correction of the record of right. The order in question is not there on record but the plaintiffs relived upon the register where the correction appears to have been given effect to. The question, therefore, arises as to whether the entry in the settlement papers recording somebody’s name could create or extinguish title in favour of the person concerned? It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the record of right prepared in the year 1549-0. It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the record of right prepared in the year 1549-0. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the Revenues papers by no stretch of imagination can form the basis for declaration of title in favour the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over. The disputed land, the learned Counsel for the plaintiffs-respondents could not point out any other document apart from the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the Courts below committed serious error of law in declaring plaintiffs title on the basis of the aforesaid order of correction and the consequential entry in the Revenue papers. In the circumstances the appeal is allowed and the judgment and decree passed in all the there forums are set aside. The plaintiffs’ suit stand dismissed. There will be no order as to costs.” 10.The plea raised by Mr. Baldev Singh that the defendant has removed the trees from his land has also not been substantiated. The plaintiffs has failed to pin-point the area from which the trees had been removed by the defendant. The allegation of encroachment has not been stated in the plaint. The learned courts below have come to just conclusion that for carrying out the corrections in the revenue record, the plaintiff should have approached the revenue authorities or the settlement authorities. The Courts below have correctly appreciated oral as well as documentary evidence. 11.In view of the discussions made hereinabove, there is no substantial question of law involved in this regular second appeal and the same is dismissed being devoid of merit. No costs. M.R.B. ———————