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2012 DIGILAW 231 (HP)

Deepak Tripati v. Jai Wanti

2012-04-30

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 10.7.2001 rendered by the learned District Judge, Sirmaur District at Nahan in Civil Appeal No.34-CA/13 of 2000. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of the appellants-plaintiff, namely, Ishwar Dass (hereinafter referred to as plaintiff for convenience sake) filed a suit for declaration and injunction. According to the plaintiff, Smt. Nanti and Har Devi widows of late Sh. Gurdia were owners in possession to the extent of half share with Sh. Surat Ram son of Sh. Devi Singh of the land comprised in Khata/Khatauni No. 24/56 to 62 measuring 78-9 bighas situated in village Chanalag, Tehsil Pachhad, District Sirmaur, Himachal Pradesh Atma Ram, father of the plaintiff, purchased the entire half share of Nanti Devi and Har Devi and as such he became owner in possession of the half share of land comprised in Khata Khatauni No. 24/43 to 58 according to jamabandi for the year 1958-59. Surat Ram, who was owner in possession of half share, i.e. 39-5 bighas, sold his land vide mutation No. 74 on 20.11.1949 in favour of Mata Ram son of Nanta Ram comprised in Khasra No. 271/2 measuring 38-2 bighas and thereafter vide mutation No. 70, he further bequeathed the land in favour of Mattu son of Shankar to the extent of 2-10 bighas. Surat Ram bequeathed the land in favour of Mattu on 30.5.1958 illegally and without any authority, i.e. 1-7 bighas more than his share. Surat Ram died. He was succeeded by Munni and Parwati, both widows of the deceased. Mutation No. 80 was attested on 20.2.1952 by Assistant Collector 2nd Grade, Pachhad in favour of Munni and Parwati illegally. According to the plaintiff, Surat Ram has not left any property. Parwati contracted second marriage and vide mutation No.102 her name was deleted and Munni was illegally shown in papers as one of the co-owners of the suit land. According to the plaintiff, Munni was neither owner nor in possession as Surat Ram had already bequeathed the land more than his share. Munni was not competent to sell any land. She sold khasra No. 69/1 measuring 6-10 bighas in favour of Sher Jung (substituted by his legal representatives in the original suit as defendants No. 1-A to 1-C vide mutation No. 105 dated 30.10.1958. Munni was not competent to sell any land. She sold khasra No. 69/1 measuring 6-10 bighas in favour of Sher Jung (substituted by his legal representatives in the original suit as defendants No. 1-A to 1-C vide mutation No. 105 dated 30.10.1958. Munni further bequeathed the property in favour of Bhup Singh and Jagat Singh on 30.10.1958 vide mutation No. 111 to the extent of half share whereas she was not competent to alienate the property more than his share. Munni, according to the plaintiff, has not succeeded to any property from her husband Surat Ram and as such the alienation on her behalf is illegal, especially the entry of separate Khata of Bhoop Singh etc. is illegal. Bhup Singh and Jagat Singh bequeathed khasra No. 20 in favour of defendants No. 4 to 6 as per original suit illegally whereas they were not competent to do so. According to the plaintiff, the entries in jamabandi for the year 1991-92 showing the defendants No. 4 to 5 as owners and defendant No.1 as owner in Khasra No. 394/69 and defendants No.2 and 3 showing in possession and ownership of Khasra No. 89/2 and 91 were illegal and void. In these circumstances, the plaintiff has filed the suit. 3. Suit was contested by defendants No.1 to 6 by filing written statement, which was amended subsequently. The defendants have denied that Nanti and Har Devi had any share in the suit property. It is specifically stated that Gurdia had no share in the suit land as in family partition the entire suit land was in ownership and possession of Surat Ram son of Devi Singh. According to the defendants, Munni had transferred the land in favour of Jagat Singh and Bhoop Singh earlier but said transfer was effected in the revenue papers later on. They also averred that mutation No.105 and 110 of oral gift made by Munni dated 30.10.1958 in favour of Bhup Singh and Jagat Singh regarding Khata No. 24 plot No. 13 measuring 78-9 bighas to the extent of half share and Khata No. 25 plot No.3 measuring 25-4 bighas to the extent of th share with share in Shamlat was true and correct and the father of plaintiff was aware of said transfer and had acknowledged the title of Munni. According to the defendants, their possession was continuous, open and uninterrupted to the knowledge of the plaintiff. According to the defendants, their possession was continuous, open and uninterrupted to the knowledge of the plaintiff. Defendants No. 7 to 9 have also filed separate written statement. According to them, Nanti and Har Devi had no share in the suit property. Surat Ram had sold land comprised in Khasra No. 271/2 measuring 38-2 bighas to Mata Ram son of Nanta Ram and mutation was lawfully attested on 28.11.1949. 4. Replication was filed by the plaintiff. Issues were framed by the trial court on 14.10.1996 and thereafter additional issues were framed on 14.10.1999. Learned Sub Judge passed a decree of declaration in favour of the plaintiff that he and proforma defendants are owners in possession to the extent of half share of the land comprised in Khata Khatauni No. 37/47 to 53 plot 11 measuring 68-14 bighas situated in village Chanalag, Tehsil Pachhad and mutation No. 105 dated 30.10.1958 and mutation No. 111 dated 30.10.1958 were illegal and void and were not binding on the rights of plaintiff and subsequent entries in the jamabandi on the strength of mutations No. 105 and 111 dated 30.10.1958 were also wrong and illegal. Further decree of permanent prohibitory injunction was also passed in favour of the plaintiff and proforma defendants and against the defendants restraining them from causing any kind of interference in possession of the plaintiff and proforma defendants in the suit land. The predecessor-in-interest of defendants Sher Jung filed an appeal before the learned District Judge, Sirmaur. The learned District Judge partly allowed the appeal on 10.7.2001. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether the Ld. District Judge was justified in dismissing the suit of the appellant qua 6 bighas 10 biswas of land on the basis of adverse possession of defendants when it had been proved that the land in suit belongs to joint Hindu Family? 2. Whether the factum of partition can be said to have been proved without here being no evidence pleaded or produced by respondents/defendants No.1 to 3 before the trial court? 5. Mr. P.C. Sharma, on the basis of substantial questions of law framed, has strenuously argued that the first appellate court has not correctly appreciated the revenue entries. According to him, defendants have failed to prove the basic ingredients of adverse possession. 5. Mr. P.C. Sharma, on the basis of substantial questions of law framed, has strenuously argued that the first appellate court has not correctly appreciated the revenue entries. According to him, defendants have failed to prove the basic ingredients of adverse possession. He then argued that the defendants have not substantiated the plea of family partition. 6. Mr. Bhupender Gupta, learned Senior Advocate has supported the judgment and decree passed by the first appellate court. 7. I have heard the learned counsel for the parties and have perused the records carefully. 8. Since both the substantial questions of law are interconnected and interlinked, therefore, the same were taken up together for determination to avoid repetition of discussion of evidence. 9. Learned counsel appearing on behalf of the parties have addressed their arguments only to the land comprised in khasra No. 69/1 measuring 6-10 bighas. Sher Jung, on the basis of mutation No. 105 dated 30.10.1958, came in possession of the suit land. According to jamabandis for the year 1958-59 Ex.P-8, for the year 1962-63 Ex.P-8, for the year 1967-68 Ex. P-7, for the year 1972-73 Ex. P-5, for the year 1982-83 Ex.P-3, for the year 1986-87 Ex.P-2 and for the year 1991-92 Ex.P1, Sher Jung has been shown in possession after purchasing the suit property comprised in khasra No. 394/69. The plaintiff has not rebutted these revenue entries, which were consistently showing Sher Jung in possession with effect from 1958-59 onwards. The presumption of truth is attached to the jamabandis. 10. PW-1 Inder Dutt could not narrate the area of the land in possession of the plaintiff. PW-2 Garibu Ram has deposed that the plaintiff has 8-10 bighas of land. DW-1 Balinder Singh has deposed that his father was in possession of suit land and this fact was known to the residents of the area. The possession was never interfered by the plaintiffs. DW-2 Bhup Singh has testified that the suit land was in his possession and neither the plaintiff nor his father has ever interfered with the same. DW-3 Basti Ram has also testified that the defendants have always considered themselves to be the owners in possession of the suit property and nobody till date has interfered with the same. Sher Jung has purchased this suit land from Munni. According to the jamanadis, as discussed herein above, his possession was duly recorded with effect from 1958-59 to 1991-92. DW-3 Basti Ram has also testified that the defendants have always considered themselves to be the owners in possession of the suit property and nobody till date has interfered with the same. Sher Jung has purchased this suit land from Munni. According to the jamanadis, as discussed herein above, his possession was duly recorded with effect from 1958-59 to 1991-92. Sher Jang has purchased the property in the year 1957 and the mutation was attested in the year 1958 and his possession was recorded in the jamabandi for the year 1958-59 but the suit has been filed in the year 1993. Learned first appellate court has rightly come to the conclusion that it was barred by limitation. 11. In view of the observations and discussions made herein above, it is not necessary in this case to go into the question whether the partition had taken place between Surat Ram and Gurdia. 12. Consequently, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.