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2011 DIGILAW 563 (HP)

Dhanna v. State of H. P.

2011-02-23

DEEPAK GUPTA

body2011
JUDGMENT Deepak Gupta, J. 1. This Second Appeal is directed against the judgment and decree dated 29.4.2000 passed by the learned District Judge, Una in Civil Appeal No.96 of 1994 decided on 29.4.2000 whereby he dismissed the suit filed by the present appellant along with his brother Bansi (hereinafter referred to as the plaintiffs) and upheld the judgment and decree passed by the learned Senior Sub Judge, Una dated 30.4.1994 dismissing the suit of the plaintiffs. 2. Briefly stated, the facts of the case are that the plaintiffs filed a suit for declaration that they are owners in possession of the suit land comprised in khasra No.924 as the same had been allotted to them by the defendant-State. It was further prayed that the defendant-State had no right, title or interest in the suit land. On this basis it was further prayed that the order dated January 17, 1987 passed by the Collector whereby the mutation No.2244 recording the plaintiffs as owners was wrong and liable to be set-aside. The plaintiffs allege that they were allotted the land by the State and the same stood duly mutated in their favour vide mutation No.2244. 3. The stand of the defendants is that the plaintiffs were allotted 6 kanals 9 marlas of land out of khasra No.2076 but no land comprised in khasra No.924 was allotted to them. Since, mutation No.2244 had wrongly been entered qua khasra No.924 it was rightly reviewed by the Collector. 4. Both the Courts below have come to the conclusion that the plaintiffs have failed to prove that the land comprised in khasra No.924 was allotted to them. However, they have held that the plaintiffs are in possession of the suit land but their possession is in the nature of trespassers. The Courts below have restrained the defendant State from interfering in the possession of the plaintiffs except in due course of law. 5. Though the appeal was admitted on various questions of law, I, after hearing learned counsel for the parties, find no question of law much less a substantial question of law arises in the appeal. The only issue which arises for consideration is whether the plaintiffs were allotted the suit land comprised in khasra No.924 or not. Other than the mutation No.2244, the plaintiffs have failed to place on record even a single document to show that they were allotted land in khasra No.924. The only issue which arises for consideration is whether the plaintiffs were allotted the suit land comprised in khasra No.924 or not. Other than the mutation No.2244, the plaintiffs have failed to place on record even a single document to show that they were allotted land in khasra No.924. In fact even the witnesses produced by the plaintiffs have clearly stated that they are not aware as to whether the suit land was allotted to the plaintiffs or not though they have further stated that the plaintiffs are actually in possession of the suit land. 6. The only other document relied upon by the plaintiffs is a list of allottees Ext.PW-9/A wherein the names of the plaintiffs figure as proposed allottees of land out of khasra No.924. As rightly held by both the Courts below the plaintiffs can derive no benefit from this document since admittedly it only shows that there was a proposal to grant them land in this khasra number. It was the duty of the plaintiffs to produce on record the letter/document whereby they were actually allotted the land in question. They have failed to produce such document and therefore adverse inference has to be drawn against them. Even in the mutation No.2244, Ext.P-1, the ownership was conferred on the plaintiffs on account of the fact that they figured as non-occupancy tenants in the column of possession. In the present case, they have not set-up a case of being non-occupancy tenants who have been granted ownership under the H.P. Tenancy and Land Reforms Act but claimed to be allottees of land in question from the State Government. Therefore, this mutation can be of no help to them. 7. Both the Courts below have appreciated the evidence and this Court in an appeal under Section 100 CPC cannot disturb the findings of fact unless they are perverse. The finding that the plaintiffs have failed to prove that the suit land was ever allotted to them is a pure finding of fact which cannot be interfered with in the present proceedings. Appeal is according dismissed with no order as to costs.