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2012 DIGILAW 1050 (HP)

Kaushalya Devi v. Gian Chand

2012-12-27

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh, J. The defendants are in appeal against judgment, decree dated 12.10.2001 passed by learned Additional District Judge (I), Kangra at Dharamshala, Camp at Una in Civil Appeal No. 45 of 1997 reversing judgment, decree dated 29.1.1997 passed by learned Sub Judge 1st Class (I), Amb in Case No. 98 of 1992. 2. The facts, in brief, are that respondents had filed a suit for declaration that they are owners in possession as hissadars of the land described in the plaint, hereinafter referred as ‘suit land’. The mutation in favour of appellants on the basis of judgment in Civil Appeal No. 147/86 dated 7.6.1988 is wrong, illegal. The entries in favour of appellants are wrong with consequential relief of injunction restraining the appellants from alienating or transferring the suit land in any manner during the pendency of the suit. 3. It was pleaded by the respondents that they were owners in possession of the suit land. In appeal Sukhdev vs. Milkhi decided on 7.6.1988 it was held that appellants were only entitled for the shares of Gandu and Babu on the basis of Will executed by the said persons in favour of the appellants. The appellants applied for mutation on the basis of judgment dated 7.6.88 and mutation was attested in favour of the appellants, who were recorded in exclusive possession of the suit land whereas appellants should be recorded as owners only to the extent of share of Babu and and Gandu. The appellants were approached to get revenue entries corrected but without any positive response, therefore, the suit was filed. 4. The suit was contested by the appellants by taking preliminary objections of maintainability, limitation, estoppel and non-joinder of necessary parties. On merits, it was pleaded that the suit land was in possession of the appellants. The respondents during the consolidation did not take any objection. In Civil Suit No. 464 of 1988 the respondents were parties, they were served. They did not file any objection and the suit was dismissed. The respondents have not disclosed true facts to the Court. The appellants were coming in possession of the suit land. The mutation was attested as per the decree and the revenue entries were correct. The appellants prayed for dismissal of the suit. 5. On the pleadings of the parties, the following issues were framed:- 1. The respondents have not disclosed true facts to the Court. The appellants were coming in possession of the suit land. The mutation was attested as per the decree and the revenue entries were correct. The appellants prayed for dismissal of the suit. 5. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners in possession of the suit land, as hissadar? OPP 2. Whether sanctioning of mutation in favour of defendant vide judgment dated 7.6.88 is wrong and against law, as alleged? OPP 3. Whether the plaintiffs are entitled to the relief of injunction, as prayed for? OPP 4. Whether defendants are entitled to the share of Babu and Gandu on the basis of judgment dated 7.6.88 out of suit land, as alleged? OPP 5. Whether entry in favour of defendant qua suit land is wrong, as alleged? OPP 6. Whether suit is not maintainable, as alleged? OPD 7. Whether act and conduct of plaintiff is a bar to the suit, as alleged? OPD 8. Whether suit is bad for non-joinder of necessary parties? OPD 9. Whether defendants are owners in possession of suit land, as alleged? OPD 10. Relief. The issues No. 4, 6, 7 and 9 were answered in affirmative, issues No. 1 to 3, 5 and 8 were answered in negative and the suit was dismissed by the trial Court on 29.1.1997. The respondents filed appeal against judgment, decree dated 29.1.1997. The learned Additional District Judge on 12.10.2001 allowed the appeal and decreed the suit of the respondents, as noticed above, hence second appeal, which has been admitted on the following substantial question of law: “What is the effect of relying upon the judgments and decree Ext. P-3, P-4, P-6 and P-7 passed by the Courts in some other cases in the facts and circumstances of the present case whereby the first Appellate Court has set aside the judgment and decree of the trial Court?” 6. I have heard learned counsel for the parties and have also gone through the record. Ex.P-3 is the copy of judgment dated 30.9.1986 in Civil Suit No. 132 of 1982 decided by Sub Judge 1st Class, Amb. I have heard learned counsel for the parties and have also gone through the record. Ex.P-3 is the copy of judgment dated 30.9.1986 in Civil Suit No. 132 of 1982 decided by Sub Judge 1st Class, Amb. The said suit was filed by Milkhi Ram against Sukhdev, Bishani wife of Sukhdev, Onkar, Jai Dev, Seh Dev all sons of Sukhdev claiming that he and his two brothers Babu and Gandu were in possession of the land in question as tenants at Will and they had become owners under the H.P.Tenancy and Land Reforms Act. After the deaths of Babu and Gandu Milkhi Ram became owner of the land in question. Sukhdev took the plea that Babu and Gandu had executed a Will in his favour. 7. It was held in civil suit No. 132 of 1982 that Milkhi Ram was heir and in possession of the land in question qua the shares of Babu and Gandu. It was also held that Babu and Gandu had not executed Will in favour of Sukhdev. The suit was decreed and it was held that Milkhi Ram was the only heir of Babu and Gandu and his suit for possession of the land measuring 18 Kanals 11 Marlas comprised in Khasra Nos. 846, 847, 850, 851, 852, 869, 876 and land measuring 10 Kanals 1 Marla comprised in Khasra Nos. 884, 874, 867, 848 as per jamabandi 1978-79 was decreed. 8. Ex.P-4 is the copy of decree in Civil Suit No. 132 of 1982. The learned District Judge in Civil Appeal No. 147 of 1986 decided on 7.6.1988 vide Ex.P-6 has upheld the judgment dated 30.9.1986 Ex.P-3. The mutation No. 56 dated 6.6.1989 Ex.P-8 was attested on the basis of judgment in Civil Suit No. 132 of 1982. The respondents Gian Chand and Kishan Chand co-sharers were not made parties in Civil Suit No. 132 of 1986. In revenue record, the respondents were recorded as co-owners alongwith Milkhi Ram, plaintiff in Civil Suit No. 132 of 1982. 9. The judgment dated 30.9.1986 of the Sub Judge and judgment dated 7.6.1988 of the learned District Judge could not take away the rights of the respondents and those judgments were not binding on the respondents as they were not parties. 9. The judgment dated 30.9.1986 of the Sub Judge and judgment dated 7.6.1988 of the learned District Judge could not take away the rights of the respondents and those judgments were not binding on the respondents as they were not parties. The lower Appellate Court on the basis of the revenue record has recorded a finding of fact that respondents were earlier co-tenants on the suit land and thereafter owners. They were recorded in possession of the suit land on the basis of partition. Their names could not have been removed on the basis of judgments Ex.P-3 and Ex.P-6. Ex.P-7 is the copy of the decree in appeal decided on 7.6.1988. 10. The appellants could not point out how judgments Ex.P-3 and Ex.P-6 are binding on the respondents, who were not parties in that litigation. The names of respondents in the revenue record were wrongly removed while implementing judgments Ex.P-3 and Ex.P-6. The lower Appellate Court has rightly appreciated the material on record. There is no mis-construction or mis-interpretation of Ex.P-3, Ex.P-4, Ex.P-6 and Ex.P-7. The view taken by the learned lower Appellate Court is in consonance with the evidence on record. There is no merit in the appeal. The substantial question of law noticed above is decided against the appellants. 11. In view of above, the appeal fails and is accordingly dismissed with no order as to costs.