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2012 DIGILAW 1040 (HP)

Tirath Ram v. Chattar Singh

2012-12-26

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 28.11.2002 rendered by the learned District Judge, Shimla in Civil Appeal No.77-S/13 of 2000. 2. Essential facts necessary for the adjudication of this Regular Second Appeal are that appellants-plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) filed a suit against the respondent-defendant (hereinafter referred to as the ‘defendant’ for convenience sake). According to the plaintiffs, Ram Saran was the common ancestor of the parties to suit, who was succeeded in equal shares by two sons, namely Sant Ram defendant No.1, Nikka Ram plaintiff No.1 and four daughters, namely, Shonku Devi, Mathu Devi, Kaushalya Devi and Batu Devi. It was averred that Basti Ram, another son of Ram Saran died before the death of his father. According to the plaintiff, after the death of Ram Saran and his widow Sarju, plaintiffs and defendant No.1 succeeded to the suit property in equal share. Defendant filed an application for partition of the land situated in Mauza Bhad in the year 1986 claiming that he had half share in the suit land and the defendant intentionally in collusion with the revenue officials, deleted plaintiffs except plaintiff No.1. Thus, according to the plaintiffs, they were condemned unheard in the partition proceedings. Plaintiff No.1 is an illiterate person. Plaintiffs raised objection before the Assistant Collector IInd Grade, Shimla to the effect that the defendant was entitled to ½ share. However, the Assistant Collector IInd Grade, Shimla passed the order of partition of the suit land. The Assistant Collector IInd Grade fixed the case for preparation of mode of partition. Plaintiff No.1 filed an appeal against the order of the Assistant Collector IInd Grade before the Collector, Shimla. Collector, Shimla dismissed the same on 6.10.1988. The revision was also preferred and the same was dismissed on 6.11.1989. According to the plaintiffs, since they had five shares in the suit land to which they have succeeded on account of death of Ram Saran and Sarju, their share is 5/6th and defendant has only 1/6th share in the land. It is in these circumstances, plaintiffs filed suit with the prayer that defendant be restrained from claiming half share in the suit property detailed in the head note of the plaint as per entries in the jamabandi for the year 1982-83 situated in Mauza Bhad, Pargana Kalhanj, Tehsil and District Shimla. It is in these circumstances, plaintiffs filed suit with the prayer that defendant be restrained from claiming half share in the suit property detailed in the head note of the plaint as per entries in the jamabandi for the year 1982-83 situated in Mauza Bhad, Pargana Kalhanj, Tehsil and District Shimla. Defendant was also sought to be restrained from using the entry in the revenue record against the plaintiffs directly or indirectly through his persons, agents, servants, labourers. Etc. 3. Suit was contested by the defendant. According to defendant, the suit was barred by limitation and estoppel. On merits, it was denied that Ram Saran was the common ancestor of the parties and also that the estate of Ram Saran was succeeded by the parties in equal share. It was stated that Smt. Shonku Devi, Mathu Devi, Kaushalya Devi, Batu Devi and Sarju Devi have no right, title or interest in the suit property as they had relinquished their respective shares in favour of the replying defendant 25 years back, vide mutation No.80 dated 20.7.1962. According to the defendant, he was co-sharer in the suit property to the extent of half share. Defendant has denied the assertion made by the plaintiff that the partition proceedings were not held in accordance with law. 4. Replication was filed by the plaintiffs. Pleadings were also amended by the plaintiffs by adding para 8-A to the effect that defendant Sant Ram has transferred the portion of the suit land in favour of respondents No.2 and 3 through sale deed No. 456 registered in the office of Sub-Registrar, Shimla on 11.5.1994 and gift deed No. 761 registered in the office of Sub Sub-Registrar on 21.11.1989, which according to the plaintiffs were illegal, void and inoperative against the interest of the plaintiffs and they be also restrained from claiming any interest in the suit property. No written statement was filed to the amended plaint by the newly added defendants No.2 and 3, namely, Gian Chand and Krishan Chand. However, amendments made in para 8-A of the amended plaint were controverted by Sant Ram defendant. Defendants No. 1 and 3 died during the pendency of the Regular Second Appeal. Their legal representatives have been brought on record. 5. Learned Sub Judge (II), Shimla framed issues on 27.5.1992. Suit was dismissed by the learned Sub Judge (II), Shimla on 17.4.2000. However, amendments made in para 8-A of the amended plaint were controverted by Sant Ram defendant. Defendants No. 1 and 3 died during the pendency of the Regular Second Appeal. Their legal representatives have been brought on record. 5. Learned Sub Judge (II), Shimla framed issues on 27.5.1992. Suit was dismissed by the learned Sub Judge (II), Shimla on 17.4.2000. Plaintiffs preferred an appeal before the learned District Judge Shimla. He dismissed the same on 28.11.2002. Hence, the present Regular Second Appeal. It was admitted on the following substantial question of law: Whether both the courts below have misread and mis-appreciated the evidence on record to hold that Sarju, Shonku, Mathu and Kaushalya had relinquished their shares in favour of plaintiff No.1 and defendant No.1 and plaintiff No.1 has no right to raise grievance against it and no relief can be given to plaintiffs No.2 to 6 as they failed to appear in the witness box? 6. Mr. Romesh Verma has vehemently argued that both the courts below have not correctly appreciated the oral as well as documentary evidence. He has also argued that the learned courts below have drawn wrong conclusion against his client since they have failed to appear in the witness box. 7. Mr. Shivendra Singh has supported the judgments and decrees passed by both the courts below. 8. I have heard the learned counsel for the parties and have perused the records carefully. 9. PW-1 Devinder Kumar has deposed that Ram Saran was his grand-father. He had six children, two sons and four daughters. Basti Ram died before the death of Ram Saran. According to him, after the death of Ram Saran, his share was to be inherited among the plaintiffs and defendant No.1 to the extent of 1/6th share. According to him, revenue entries of village Bathu were not correct. According to him, in Mauja Badh, half share has been shown in the share of defendant Sant Ram. He further deposed that on the basis of revenue record, defendant No.1 has got land partitioned. He has admitted that the revision preferred by plaintiff No.1 before the Divisional Commissioner was dismissed. He also deposed that defendant Sant Ram has sold the land to defendants No.2 and 3 without any right, title and interest. 10. PW-2 Brahma Nand has deposed that Ram Saran was known to him. He had six children. He has admitted that the revision preferred by plaintiff No.1 before the Divisional Commissioner was dismissed. He also deposed that defendant Sant Ram has sold the land to defendants No.2 and 3 without any right, title and interest. 10. PW-2 Brahma Nand has deposed that Ram Saran was known to him. He had six children. According to him, after the death of Ram Saran, his share was to be inherited by plaintiffs and defendant No.1. The suit land was in possession of the plaintiffs. PW-3 Tulsi Ram has deposed that after the death of Ram Saran, the suit property was to be inherited by six children. He has also deposed that Basti Ram died before Ram Saran. 11. Plaintiffs have also placed on record copy of jamabandi Ex.PW-1/C, copy of pedigree table Ex.PW-1/E and copy of jamabandi Ex.PW-1/D. According to these revenue entries, plaintiffs alongwith predecessor-in-interest of defendant No.1 have been shown as legal heirs of one Ram Saran. According to jamabandi for the year 1985-86 Ex-PW-1/D, plaintiffs alongwith defendant No.1 are shown as joint owner in possession of khasra No. 824/588. However, according to mutation No. 80 dated 20.7.1962, one Sarju, Shonku, Mathu and Kaushalya have relinquished their shares in favour of plaintiff No.1 and defendant No.1. This record has been prepared by the official during the discharge of their duties. It is proved from Ex.PW-1/C, Ex.PW-1/D and Ex.PW-1/E that share of Ram Saran was inherited by the plaintiff No.1 alongwith defendant No.1 in equal shares. However, it is reiterated that plaintiffs No.2 to 5 have relinquished their shares in favour of plaintiff No.1 and defendant No.1. Plaintiffs No.2 to 4 have not appeared in the witness box. 12. In the case in hand, the amended plaint has also not been signed by either of the plaintiffs. Plaintiffs have not rebutted the latest revenue entries to which the presumption of truth is attached. Plaintiff has not testified that no relinquishment of the right, title and interest of the suit property was done by the plaintiffs. 13. Assistant Collector IInd Grade has passed the order to partition the suit land on 15.5.1987. This order was affirmed by the Collector on 6.10.1988. The revision petition was also preferred before the Divisional Commissioner. It was also dismissed on 6.11.1989. Mr. 13. Assistant Collector IInd Grade has passed the order to partition the suit land on 15.5.1987. This order was affirmed by the Collector on 6.10.1988. The revision petition was also preferred before the Divisional Commissioner. It was also dismissed on 6.11.1989. Mr. Romesh Verma has failed to convince this Court that the orders passed by the competent authorities under the H.P. Revenue Act were without jurisdiction. The orders passed by the revenue authority under the H.P. Revenue Act cannot be ignored. Plaintiffs have not prayed for setting aside the orders passed by the revenue authorities upto the Divisional Commissioner. 14. Accordingly, both the courts below have rightly come to the conclusion that the revenue entries have not been rebutted. The best evidence has been withheld by the plaintiffs. 15. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.