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2009 DIGILAW 281 (HP)

BISHMA v. HIRU

2009-04-02

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J. :-This Regular Second Appeal has been preferred against the judgment and decree dated 7.9.1998 passed by the learned District Judge, Shimla in civil appeal No.66-S/13 of 1996. 2. Brief facts necessary for the adjudication of this Regular Second Appeal are that the plaintiffs-respondents (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit in the court of learned Sub Judge, Court No. II, Rohru seeking declaration that the land pertaining to khata khatauni No. 26 min/47, Khasra No. 240 and 241 old and Khasra No. 137/366, Khasra Nos. 790 and 791 measuring 0-16-43 hectares situate in Chak Karalash, Tehsil, Rohru, District Shimla, Himachal Pradesh belongs to plaintiffs to the extent of half share. They have pleaded that somewhere in the year 1976 Supjew got incorporated the entry of the suit land in his favour and also got the mutation No. 6445 dated 13.2.1976 attested in his name. It is averred that in the year 1982-83, Supjew died and he was succeeded by the appellants-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) and mutation has been attested in their favour. The defendants contested the suit. The plaintiffs filed replication. The learned trial court dismissed the suit. The plaintiffs preferred an appeal before the learned District Judge, Shimla. The learned District Judge Shimla allowed the appeal on 7.9.1998. The present Regular Second Appeal has been filed by the defendants assailing the judgment and decree dated 7.9.1998. The same has been admitted on the following substantial questions of law: 1. Whether challenge to mutation No. 6445 Ex.PW-1/C dated 13.2.1976 and the revenue record could be made in the civil court and the jurisdiction of the civil court was barred in view of the judgment in Chuniya Devi’s case reported in 1991 (1) SLC 223 and 1998 (3) SCC page 246? 2. Whether Article 113 of the Limitation Act was applicable to the facts and circumstances of the case or the case was governed by Art. 100 of the Limitation Act? 3. Mr. Rajnish K. Lal, Advocate has strenuously argued that the judgment and decree of the first appellate court is not sustainable in the eyes of law. He has supported the judgment and decree passed by the trial court. 4. Mr. Pradeep Verma, Advocate has supported the judgment and decree passed by the first appellate court. 3. Mr. Rajnish K. Lal, Advocate has strenuously argued that the judgment and decree of the first appellate court is not sustainable in the eyes of law. He has supported the judgment and decree passed by the trial court. 4. Mr. Pradeep Verma, Advocate has supported the judgment and decree passed by the first appellate court. I have heard the learned counsel for the parties and perused the record carefully. 5. Since all the questions of law are inter-connected, therefore, the same can be conveniently discussed together. 6. Mr. Rajnish K. Lal, Advocate has argued that the civil court had no jurisdiction to decide the suit in view of the judgment rendered by this Court in Chuhniya Devi versus Jindu Ram, 1991 (1) S.L.C. 223. In the present case the dispute is not between the owner/landlord and the tenant. The lis is between the tenants inter se. There is no mechanism under the Himachal Pradesh Tenancy and Land Reforms Act, 1972 to resolve the issues between the tenants. Consequently it is held that the civil court had the jurisdiction in the present case to entertain and hear the matter. 7. Mr. Rajnish K. Lal has further submitted that the suit was barred by limitation. In the present case the mutation was attested in favour of Supjew in the year 1976. The suit was filed in the year 1990. The prayer is that the mutation be declared a nullity. The mutation does not confer any title. The mutations are recorded and attested to update the record of rights. The limitation to assail the mutation entries under the residue Article 113 of the Limitation Act is three years and it starts running from the date when the person possessed of the right feels aggrieved by the adverse entry. Plaintiff Smt. Hiru though was not in physical possession of the property but she being co-owner of the suit property, the presumption could be drawn that the co-owners i.e. defendants and prior to them, their predecessor-in-interest Supjew had been possessing her share in the suit property on her behalf as well. The possession of one co-owner is the possession of all. In the present case, no plea of ouster has been raised. 8. Accordingly, the first appellate court has come to a right conclusion that the suit was within limitation. 9. The possession of one co-owner is the possession of all. In the present case, no plea of ouster has been raised. 8. Accordingly, the first appellate court has come to a right conclusion that the suit was within limitation. 9. It is borne out from the records, more particularly, from the statements of the witnesses that Man Jew died in the year 1973-74. She re-married somewhere in the year 1976-77. The Himachal Pradesh Tenancy and Land Reforms Act, 1972 was enforced from 3rd October, 1975. Smt. Hiru acquired right with effect from 3rd October, 1975. The proprietary rights which were conferred in her favour cannot in any manner be deemed to have been affected by her re-marriage in the year 1976-77. The mutation could not defeat the rights which had become available to her in the year 1975. 10. The learned first appellate court has correctly appreciated the oral as well as documentary evidence led by the parties. There is no substantial question of law involved in this Regular Second Appeal. 11. In view of the aforesaid reasoning, the present Regular Second Appeal is dismissed. There shall, however, be no order as to costs.