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2012 DIGILAW 174 (HP)

Jeet Ram v. Mehar Chand

2012-04-09

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. - The defendants have filed this appeal against judgment, decree dated 25.2.2002 passed by learned Additional District Judge, Solan in Civil Appeal No. 45-S/13 of 2001 decreeing the suit of the respondents after reversing the judgment, decree dated 28.8.2001 passed by learned Sub Judge 1st Class, Arki, in Civil Suit No. 153/1 of 1996. 2. The facts, in brief, are that respondents had filed a suit against appellants No. 2 to 4 and Fagnu Ram, predecessor-in-interest of appellant Jeet Ram alleging that their father Fadria was owner in possession of land measuring 33 bighas 7 biswas, Khata Khatauni No. 61/62 mauza Banwan as per jamabandi for the year 1960-61. After the death of Fadria, the respondents are owners in possession of the suit land. Fadria was survived by daughters also, but said sisters of respondents had already relinquished their shares in favour of the respondents. On 17.4.1960 mutation No. 633 was attested showing that Fadria had given share in the suit land to the extent of ?rd each to Mastu and Fagnu. In fact, Fadria had never given any share as alleged in the mutation No. 633 dated 17.4.1960 nor he relinquished his possession at any time in favour of Mastu and Fagnu. The mutation No. 633 is wrong, illegal and is not operative against the rights of the respondents. The appellants never acquired any right, title or interest in the suit land. The entries in favour of the appellants on the basis of mutation No. 633 are wrong and illegal. 3. Fadria died on 10.8.1979 and during his life time he remained in possession of the suit land. After the death of Fadria, the respondents are in possession of the suit land as owners, the appellants or their predecessors never entered into possession of the suit land. The appellants taking undue advantage of wrong revenue entries, firstly tried to interfere in the possession of the respondents over the suit land, thereafter they filed an application for partition of the suit land. The Assistant Collector, 1st Grade, Arki without deciding the question of title and without giving an opportunity to respondents to prove their case allowed the application. The Assistant Collector 1st Grade passed the order in slip-shod manner. The Divisional Commissioner confirmed the order of the Assistant Collector vide order dated 20.3.1996. The Assistant Collector, 1st Grade, Arki without deciding the question of title and without giving an opportunity to respondents to prove their case allowed the application. The Assistant Collector 1st Grade passed the order in slip-shod manner. The Divisional Commissioner confirmed the order of the Assistant Collector vide order dated 20.3.1996. The Divisional Commissioner also failed to look into the matter properly and the order of the Divisional Commissioner is also liable to be declared illegal and void. 4. The appellants have no right to seek partition and to claim possession from respondents of the suit land. The revenue entries showing the appellants as co-owners are wrong, illegal and not binding on the respondents. The respondents filed suit for declaration that the order passed by the Divisional Commissioner in case No. 54/1996 dated 20.3.1996 and mutation No. 633 dated 17.4.1960 and subsequent revenue entries showing the appellants as co-owners are wrong, null and void and not binding on the respondents with further declaration that the respondents be declared as exclusive owners in possession of the suit land. A consequential relief of permanent prohibitory injunction was also prayed. 5. The suit was contested by the appellants and preliminary objections of maintainability, limitation, locus-standi, cause of action, estoppel, valuation and jurisdiction were taken. On merits, it was admitted that before 17.4.1960 Fadria was owner along with other co-sharers over the suit land. Thereafter, he got attested mutation No. 633 dated 17.4.1960 in equal shares in favour of Mastu and Fagnu which was incorporated in the revenue record. Fadria during his life time never challenged mutation No. 633. 6. It has been alleged that revenue entries are correct and have been prepared in accordance with law which have been challenged after 37 years and the suit is hopelessly time barred. It has been alleged that the appellants are in possession of the suit land. The partition proceedings are correct. The suit is malafide. The respondents had filed the appeal before the Collector, Arki against the partition order passed by the Assistant Collector 1st Grade, Arki which was rejected by the Collector. Thereafter, the respondents filed the appeal before the Divisional Commissioner which was also dismissed. 7. Fadria in the year 1960 had waived his rights in the suit land by giving a statement before the revenue officers. On the representation of Fadria, mutation No. 633 was attested in favour of predecessors of appellants. Thereafter, the respondents filed the appeal before the Divisional Commissioner which was also dismissed. 7. Fadria in the year 1960 had waived his rights in the suit land by giving a statement before the revenue officers. On the representation of Fadria, mutation No. 633 was attested in favour of predecessors of appellants. Now appellants are coming in possession of the suit land as joint owners. The appellants prayed for dismissal of the suit. 8. The replication was filed. On the pleadings of the parties, the following issues were framed:- 1. Whether order dated 20.3.1995 of the Divisional Commissioner in the case No. 54/95 is wrong and illegal? ...OPP 2. Whether the plaintiff is entitled for the relief of declaration as claimed? OPP 3. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed? OPP 4. Whether this Court has jurisdiction? OPP 5. Whether this suit is within limitation? OPP 6. Whether this suit is not maintainable? OPD 7. Whether the plaintiff has no locus-standi? OPD 8. Whether the plaintiffs are estopped to file the present suit by their act, conduct and deed etc.? OPD 9. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPD 10. Whether the plaintiffs have not come with the clean hand ? OPD 11. Relief. The issues No. 1 to 3, 5, 6, 7, 9 and 10 were answered in negative, issues No. 4 and 8 in affirmative and the suit was dismissed by the trial Court on 28.8.2001. The learned Additional District Judge on 25.2.2002 allowed the appeal, set-aside judgment, decree dated 28.8.2001 and decreed the suit of the respondents, hence second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the impugned judgment and decree of the learned District Judge is the result of misreading, misinterpretation and mis-appreciation of the evidence on record including document Ex.PW-2/A and copy of Rapat Rojnamcha Ex.PW-1/A? 2. Whether Civil Courts have no jurisdiction to try the suit? 3. Whether the impugned judgment and decree of the First Appellate Court is against the law laid down by this Court in Piyare Lal v. State, 2001 (3) SLC 395? 4. Whether the suit was within the period of limitation? 9. I have heard Mr. Ramakant Sharma, Advocate, learned counsel for the appellants and Mr. 3. Whether the impugned judgment and decree of the First Appellate Court is against the law laid down by this Court in Piyare Lal v. State, 2001 (3) SLC 395? 4. Whether the suit was within the period of limitation? 9. I have heard Mr. Ramakant Sharma, Advocate, learned counsel for the appellants and Mr. G.D.Verma, Senior Advocate, learned counsel for the respondents and have also gone through the record. It has been submitted on behalf of the appellants that the learned Additional District Judge misconstrued and misinterpreted the evidence including Rapat Rojnamcha Ex.PW-1/A and mutation No. 633 dated 17.4.1960 Ex.PW-2/A and has erred in decreeing the suit. The Civil Court has no jurisdiction in a partition matter under Section 171 (2) of the H.P.Land Revenue Act, 1954 (for short Act). The learned Additional District Judge has not appreciated that the suit filed by the respondents is hopelessly time barred. The learned Additional District Judge has committed illegality in reversing, setting-aside well reasoned judgment of the trial Court. He has prayed for acceptance of the appeal and restoration of the judgment, decree passed by the learned trial Court. 10. The learned Senior Advocate appearing on behalf of the respondents has submitted that the mutation does not confer any title, the Civil Court has jurisdiction where the question of title is involved. The respondents filed the suit when their rights over the suit land were threatened. The suit is within limitation. The learned Additional District Judge has rightly appreciated the material on record in setting-aside the judgment dated 28.8.2001. The impugned judgment, decree do not require any interference. He has prayed for dismissal of the appeal. 11. The substantial questions of law No. 1 to 4 can be conveniently determined collectively, therefore, all of them are taken up for consideration. Ex.PW-1/A is rapat No. 31 dated 1.10.1959, this is with respect to Mauza Ladhi whereas mutation No. 633 dated 17.4.1960 Ex.PW-2/A is of Mauza Banwa. Thus, rapat No. 31 Ex.PW-1/A is not relevant. The material and important document is mutation No. 633 Ex.PW-2/A. According to respondents, their father Fadria never relinquished his share in the suit land in favour of Mastu and Fagnu, but according to appellants, Fadria relinquished his share in favour of Mastu and Fagnu way back on 17.4.1960. 12. Thus, rapat No. 31 Ex.PW-1/A is not relevant. The material and important document is mutation No. 633 Ex.PW-2/A. According to respondents, their father Fadria never relinquished his share in the suit land in favour of Mastu and Fagnu, but according to appellants, Fadria relinquished his share in favour of Mastu and Fagnu way back on 17.4.1960. 12. The Hindi translation of mutation dated 17.4.1960 has been placed on the trial Court file as Mark A which indicates that Fadria at the time of attestation of mutation was identified by Balak Ram, Nambardar. Fadria had stated that names of his two brothers Fagnu and Mastu be entered along with him in the revenue record. In these circumstances, the mutation of relinquishment was attested by Assistant Consolidation Officer on 17.4.1960. The revenue entries were changed in terms of mutation dated 17.4.1960. Fadria died on 10.8.1979. Fadria did not challenge mutation No. 633 during his life time. It is not the case of respondents that Fadria was not aware of change made in the revenue entries on the basis of mutation No. 633. This means Fadria accepted mutation No. 633 and change made in the revenue entries on the basis of mutation No. 633. 13. The learned Additional District Judge in the impugned judgment has held that mutation No. 633 dated 17.4.1960 is not based upon any testamentary document and, therefore, mutation No. 633 is void ab initio. The reasoning given by learned Additional District Judge for declaring mutation dated 17.4.1960 is wrong. The testamentary disposition by Fadria is not the case of either side. The case of the respondents is that Fadria had never given his share vide mutation dated 17.4.1960. It is also not the case of the appellants that Fadria had given his share in favour of Mastu and Fagnu by way of testamentary disposition. Therefore, the findings rendered by the learned Additional District Judge that mutation No.633 dated 17.4.1960 is void being without testamentary document is not sustainable. 14. The learned counsel for the respondents has submitted that mutation does not confer any title nor title can be passed on the basis of admission. Therefore, the findings rendered by the learned Additional District Judge that mutation No.633 dated 17.4.1960 is void being without testamentary document is not sustainable. 14. The learned counsel for the respondents has submitted that mutation does not confer any title nor title can be passed on the basis of admission. In support of this submission, the learned counsel for the respondents has relied Durga Das v. Collector and others, (1996) 5 SCC 618 , Sankalchan Jaychandbhai Patel and others v. Vithalbhai Jaychandbhai Patel and others, (1996) 6 SCC 433 and Ambika Prasad Thakur and others etc. v. Ram Ekbal Rai (dead) by his legal representatives and others etc., AIR 1966 SC 605 . The position of law is settled that mutation does not confer any title nor title can be transferred on the basis of admission. 15. It is not in dispute that on 17.4.1960 relinquishment of the share in immovable property could be made orally. Therefore, on 17.4.1960 Fadria was competent to relinquish orally his ?rd share in favour of Mastu and Fagnu equally. In the mutation Ex.PW-2/A the factum of relinquishment of share by Fadria in favour of Mastu and Fagnu in equal shares has been recorded. It does not mean that title is sought to be created in favour of appellants on the basis of mutation. On the contrary, the appellants acquired title through their predecessors Mastu and Fagnu in whose favour Fadria had relinquished his ?rd share equally and made them owner in the khata along with Fadria. It is not a case of transfer on the basis of mere admission or mutation, rather mutation has recorded the factum of relinquishment. 16. The suit was filed on 7.10.1996. The mutation Ex.PW-2/A is dated 17.4.1960 and was more than 30 years when the suit was filed. It has been stated in the mutation order that Fadria made the statement, thereafter Assistant Consolidation Officer attested the mutation. Fadria was identified by Balak Ram, Nambardar. The respondents have imputed nothing against the Assistant Consolidation Officer nor against Balak Ram, Nambardar who identified Fadria at the time of attestation of mutation. Therefore, it can be safely held that Fadria transferred his ?rd share in favour of Mastu and Fagnu in equal shares and thereafter mutation Ex.PW-2/A was attested. In this way, Mastu and Fagnu became owners in the khata along with Fadria in equal shares. 17. Therefore, it can be safely held that Fadria transferred his ?rd share in favour of Mastu and Fagnu in equal shares and thereafter mutation Ex.PW-2/A was attested. In this way, Mastu and Fagnu became owners in the khata along with Fadria in equal shares. 17. The respondents in the plaint have pleaded that appellants filed application for partitioning the land which was allowed by the Assistant Collector 1st Grade, Arki. In the plaint, it has also been pleaded that the order of Assistant Collector 1st Grade, has been confirmed by the Divisional Commissioner in the order dated 20.3.1996. The order of the Divisional Commissioner dated 20.3.1996 Ex.PW-2/B reveals that the partition order passed by the Assistant Collector 1st Grade, Arki was challenged before the Sub Divisional Collector, Arki, who rejected the application for condonation of delay in filing the appeal vide order dated 7.8.1993 which was challenged before the Divisional Commissioner, Shimla, who declined to condone the delay in filing the appeal and dismissed the same. 18. In the plaint, no prayer has been made for setting aside the order of the Assistant Collector 1st Grade, Arki. In Devi Roop v. Smt. Devku and others, AIR 2006 Himachal Pradesh 114, it has been held that decree of the trial Court never merged in the decree of the appellate Court. The appellate Court did not decide the appeal on merits. Since the appellate Court held that the appeal itself was not maintainable and was not properly constituted, there was in fact no properly constituted appeal pending before it and the decision by the appellate Court was not a decision on merits. The Sub Divisional Collector and Divisional Commissioner declined to condone the delay and dismissed the appeal on limitation. The Divisional Commissioner in the order dated 20.3.1996 has not considered the order of the Assistant Collector 1st Grade, Arki on merits, similarly the order of Sub Divisional Collector, Arki was considered on limitation and not on merits. Therefore, it cannot be said that the order of Assistant Collector 1st Grade, Arki has merged in the order of Divisional Commissioner. The respondents opted not to challenge the order of Assistant Collector 1st Grade, Arki, therefore, the order of the Assistant Collector 1st Grade, Arki attained finality. 19. The respondents in the suit have raised question of title. Therefore, it cannot be said that the order of Assistant Collector 1st Grade, Arki has merged in the order of Divisional Commissioner. The respondents opted not to challenge the order of Assistant Collector 1st Grade, Arki, therefore, the order of the Assistant Collector 1st Grade, Arki attained finality. 19. The respondents in the suit have raised question of title. There is no issue of adverse possession, therefore, it cannot be said that suit is barred by limitation. The suit is also not barred under Clause (xvii) sub section 2 of Section 171 of the Act. In the suit no question under Section 163 of the Act is involved. Piyare Lal v. State of H.P., 2001 (3) SLC 395 is on the point of Clause (xxv), sub section 2 of Section 171 of the Act and not on Clause (xvii) sub section 2 of Section 171 of the Act. Therefore, Piyare Lal (supra) is not applicable in the present dispute. 20. The trial Court has rightly upheld mutation No. 633 dated 17.4.1960 Ex.PW-2/A in the judgment dated 28.8.2001. The learned Additional District Judge in the impugned judgment and decree dated 25.2.2002 has erred in returning the findings that mutation No. 633 dated 17.4.1960 is void. The substantial question of law No.1 is decided in favour of appellants whereas substantial questions of law No. 2 to 4 are decided accordingly in the light of discussions made above. 21. In view of above, the appeal is allowed. The impugned judgment, decree dated 25.2.2002 passed by learned Additional District Judge, Solan are set-aside, the suit of the respondents is dismissed with no order as to costs. 22. In CMP No. 202 of 2004 the appellants have prayed for punishing the respondents under Order 39, Rule 2A read with Section 151 CPC and under the Contempt of Courts Act, 1971 for violating the orders dated 22.4.2002 and 20.12.2002 passed in CMP No. 1046 of 2002. It has been stated that on 20.12.2002 in CMP No. 1046 of 2002, the Court has directed the parties to maintain status quo as existed on that date till the disposal of the appeal and the party shall not change the nature of the suit land or otherwise alienate the same. 23. It has been stated that the respondents interfered and forcibly cultivated the land in December, 2003 which was reported to the police on 18.12.2003. 23. It has been stated that the respondents interfered and forcibly cultivated the land in December, 2003 which was reported to the police on 18.12.2003. The respondent No.1 entered into settlement on 24.12.2003 and compromise was made that the respondent No.1 will not interfere over the land which is in possession of the son of appellant No.1. The respondents have violated the order dated 20.12.2002 by forcibly cultivating the fields which are in possession of the appellants. The respondents filed the reply and contested the stand of the appellants. 24. The order dated 20.12.2002 is of status quo. The appellants in paragraph 4 of the application have stated that they are in possession with respect to their share in the property in dispute. In the application it has not been made clear on which portion of the suit land the appellants are in actual physical possession of the suit land which was interfered by the respondents. The land over which the alleged interference was made has not been identified. There is no merit in the application, therefore, the same is dismissed.