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2012 DIGILAW 1304 (PNJ)

Bhura v. Maha Devi @ Bachni

2012-09-25

L.N.MITTAL

body2012
JUDGMENT L. N. MITTAL, J. Defendant-Bhura who was successful in the trial Court but has been unsuccessful in the lower Appellate Court has filed this second appeal. Respondent/plaintiff filed suit against defendant-appellant for possession of suit land measuring 4 bighas 8 biswas alleging that plaintiff’s father Kidar Nath mortgaged the suit land with possession with Munshi Ram for `41/-. On death of Kidar Nath, plaintiff being his daughter inherited the suit land and became owner-cum-mortgagor. Munshi Ram also died and his mortgagee rights in the suit land were inherited by Kishan Dayal, Maya Wanti and Shanti to whom mortgage money was paid by the plaintiff and mortgage was got redeemed. The mortgagee had, however, inducted the defendant as tenant over the suit land. In view of redemption of mortgage, the defendant being tenant under the mortgagee has no right to continue in possession of the suit land. Accordingly plaintiff sought possession of the suit land. The defendant broadly denied the plaint averments. It was alleged that the defendant has been cultivating the suit land for more than 100 years and his possession is open, hostile and adverse and he has become owner of the suit land by adverse possession. In the alternative the defendant also pleaded that if Kidar Nath is proved to be owner of the suit land, then in that event, the defendant is cultivating the suit land as tenant under him for more than 100 years. Learned trial Court vide judgment and decree dated 01.02.1986 dismissed the plaintiff’s suit. However, first appeal preferred by plaintiff has been allowed by learned lower Appellate Court vide judgment and decree dated 06.08.1986 and thereby suit filed by plaintiff has been decreed. Feeling aggrieved, defendant has filed this second appeal. I have heard learned counsel for the parties and perused the case file with their assistance. Counsel for the appellant vehemently contended that the plaintiff has not proved that the defendant was inducted as tenant over the suit land by the mortgagee. It was argued that the plaintiff herself has not appeared in the witness box and only her attorney has appeared as witness. It was also submitted that no document regarding creation of mortgage including mutation thereof has been produced. It was also submitted that Civil Court has no jurisdiction to try the suit because the defendant could be evicted only by revenue Court. It was also submitted that no document regarding creation of mortgage including mutation thereof has been produced. It was also submitted that Civil Court has no jurisdiction to try the suit because the defendant could be evicted only by revenue Court. On the other hand, counsel for plaintiff-respondent referring to the evidence on record contended that the defendant was inducted as tenant over the suit land by the mortgage and, therefore, the suit has been rightly decreed by the lower Appellate Court. I have carefully considered the rival contentions. Perusal of jamabandi Exhibit P-2 for 1976-77 reveals that plaintiff’s father Kidar Nath was mortgagor and Munshi Ram was mortgagee and defendant was in possession of the suit land as tenant on 1/3rd batai under the mortgagee. The plaintiff has also produced mutation Exhibit P-3 whereby the mortgage was redeemed by legal heirs of mortgagee Munshi Ram, since deceased, by accepting the mortgage money. Presumption of correctness is attached to entries in jamabandi Exhibit P-2 which was the latest jamabandi before filing of the suit. This jamabandi reveals that the defendant was tenant under the mortgagee. Presumption of correctness attaching to this jamabandi has not been rebutted by the defendant. Consequently it is established that defendant was inducted as tenant over the suit land by the mortgagee. Non-appearance of plaintiff herself as witness has no adverse effect on her case because she herself was not witness of induction of the defendant as tenant by the mortgagee. On the other hand, documentary evidence led by the plaintiff is credible and cogent and her own oral statement could not carry much probative value. Non-production of any document of creation of mortgage including mutation has no bearing whatsoever on the merits of the case. It appears that there was no mortgage deed or other document regarding creation of the mortgage which appears to be oral mortgage. On the other hand, jamabandi Exhibit P-2 and mutation Exhibit P-3 depict that the suit land was mortgaged by Kidar Nath in favour of Munshi Ram. There is also inheritance mutation Exhibit P-6 regarding inheritance of mortgagee rights from Munishi Ram by Kishan Dayal etc. There is also inheritance mutation Exhibit P-4 regarding inheritance of suit land by plaintiff from her father as mortgagor. All these documents have established the factum of mortgage and redemption thereof. The matter may also be examined from another angle. There is also inheritance mutation Exhibit P-6 regarding inheritance of mortgagee rights from Munishi Ram by Kishan Dayal etc. There is also inheritance mutation Exhibit P-4 regarding inheritance of suit land by plaintiff from her father as mortgagor. All these documents have established the factum of mortgage and redemption thereof. The matter may also be examined from another angle. The defendant has taken self-contradictory stand that he has been in adverse possession of the suit land and also that he was tenant under plaintiff’s father Kidar Nath. This contradictory stand of the defendant demolishes his entire case. Moreover, the defendant has led oral evidence only regarding his alleged adverse possession but has not led any evidence to the effect that he was tenant under plaintiff’s father. However, plea of adverse possession raised by defendant has been negatived by both the Courts below. Even the trial Court, which dismissed the suit of the plaintiff, negatived the plea of the defendant regarding ownership by adverse possession. Oral evidence led by the defendant in this regard is not sufficient to hold that he had become owner of the suit land by adverse possession. On the contrary, entry in jamabandi Exhibit P-2 depicts that defendant was tenant over the suit land under the mortgagee. There is no evidence to show that defendant was tenant under the mortgagor Kidar Nath father of the plaintiff. Consequently, the defendant could be either tenant under the mortgagee or in unauthorized possession of the suit land. In either event, the plaintiff being owner of the suit land is entitled to possession of the suit land and, therefore, her suit has been rightly decreed by the lower Appellate Court. Once plea of defendant regarding ownership by adverse possession is negatived, the defendant has no right to continue in possession of the suit land and the plaintiff being owner of the suit land is entitled to possession thereof. In this view of the matter, jurisdiction of civil Court is also not barred. In view of the aforesaid, I find that suit of the plaintiff has been rightly decreed by the lower Appellate Court. Impugned judgment of the lower Appellate Court does not suffer from any perversity or illegality nor it is shown to be based on misreading or misappreciation of evidence. There is, therefore, no ground to interfere with the same. The appeal is meritless and is accordingly dismissed.