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2012 DIGILAW 239 (HP)

Sat Parkash v. Jamna Dass

2012-05-01

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh, Judge 1. This appeal is directed against judgment, decree dated 12.4.2001 passed by learned District Judge, Una, in Civil Appeal No. 123 of 1996 partly reversing judgment, decree dated 30.9.1996 passed by learned Senior Sub Judge, Una in Civil Suit No. 146 of 1990. 2. Briefly stated facts are that respondent Jamna Dass had filed a suit for declaration that he had been coming in possession of land measuring 0-15-63 Hectares, comprised in Khasra No. 296 village Gharial, Tehsil Una as mortgagee, now he has become owner of said land by afflux of time. The entries in revenue record of the suit land appearing in the names of the appellants showing them mortgagors in possession as ‘Kasht Rahin’ are wrong, illegal and have no bearing on the ownership and possessory rights of the respondent over the suit land. 3. It was alleged that the suit land was originally owned by Sadhu, who about 50 years ago mortgaged the suit land alongwith some other land in favour of respondent. The respondent had been coming in possession of suit land as mortgagee. Dev Raj predecessor-in-interest of the appellants and one Jagdish Ram purchased the ownership rights and became mortgagors of the land. The land was never redeemed, therefore, appellants have lost their rights of redemption. The respondent has become owner of the suit land by afflux of time and foreclosure of equity of redemption. 4. It has been alleged that in the revenue record the appellants continued to be recorded as mortgagors in the ownership column and Gair Marusi as well as ‘Kasht Rahin’ in the column of cultivation illegally. The respondent had prayed for a decree of declaration that the suit land comprised in Khasra No. 296 which had been coming in his possession as mortgagee is now owned and possessed by him by afflux of time and the revenue entries showing contrary are wrong and illegal. The relief of permanent prohibitory injunction was also prayed against the appellants. In the alternative, decree for possession in case appellants succeed in taking forcible possession during the pendency of the suit. 5. The appellants contested the suit and took the objections of locus standi, maintainability, estoppel and limitation. On merits, they pleaded that the suit land was formerly owned by Sadhu Ram, who mortgaged the suit land to respondent. In the alternative, decree for possession in case appellants succeed in taking forcible possession during the pendency of the suit. 5. The appellants contested the suit and took the objections of locus standi, maintainability, estoppel and limitation. On merits, they pleaded that the suit land was formerly owned by Sadhu Ram, who mortgaged the suit land to respondent. Sadhu Ram vide registered sale deed dated 11.6.1954 sold it to respondent and his brother Gurdial. The mortgaged amount was adjusted in the sale deed and as such respondent and his brother Gurdial became owners of the suit land. One Nikka and Roshan Lal on 9.6.1955 filed Civil suit No. 182 against vendor Sadhu Ram, respondent and Gurdial etc. challenging the sale deed, in the alternative, for possession by means of pre-emption. 6. It has been alleged that the suit was decreed by learned Sub Judge, Hoshiarpur on 3.4.1956 for relief of pre-emption in favour of Nikka Ram etc., who took possession of the suit land on 2.6.1956 in execution of the decree. Nikka Ram sold the suit land to appellants and delivered possession thereof. The mortgage in favour of the respondent had already been extinguished when the respondent had received the amount by way of adjustment in the sale deed. The entries in the revenue papers showing the respondent still to be a mortgagee are, therefore, wrong and against facts. 7. The replication was filed, the respondent re-asserted his case and denied the stand taken by the appellants. The respondent pleaded that respondent continued to be a mortgagee even after the suit for pre-emption was decreed in favour of Nikka Ram, the land was never redeemed. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has locus standi to sue? OPP 2. Whether the suit is not maintainable? OPD. 3. Whether the plaintiff is estopped by his act and conduct to file the suit? OPD 4. Whether the suit is within time? OPP 5. Whether the plaintiff is in possession of the suit land as mortgagee? OPP 6. In case previous issue is proved in affirmative, whether the plaintiff has become owner of suit land by afflux of time as alleged? OPP 7. Whether the suit land was redeemed as alleged? OPD 8. Relief. OPD 4. Whether the suit is within time? OPP 5. Whether the plaintiff is in possession of the suit land as mortgagee? OPP 6. In case previous issue is proved in affirmative, whether the plaintiff has become owner of suit land by afflux of time as alleged? OPP 7. Whether the suit land was redeemed as alleged? OPD 8. Relief. The issues No. 1, 4, 5 and 6 were answered in affirmative and issues No. 2, 3 and 7 in negative and the suit was decreed by the learned Senior Sub Judge, Una on 30.9.1996. The respondent was declared to have become owner of the suit land by afflux of time. The appellants were restrained from interfering in the suit land. The appellants filed appeal against judgment, decree dated 30.9.1996. The learned District Judge on 12.4.2001 partly allowed the appeal. The suit of the respondent was dismissed to the effect that he is owner of the suit land by afflux of time and by foreclosure of equity of redemption. It was held that respondent continued to be in possession of the suit land and appellants were restrained by way of prohibitory injunction from interfering in the possession of the respondent over the suit land. 8. The appellants have come in second appeal against judgment, decree dated 12.4.2001 which has been admitted on the following substantial questions of law:- 1. Whether the findings of the Court below are vitiated for misconstruction of the oral and documentary evidence, particularly sale deed DW-1/A, plaint Ex.D-1, the judgment Ex.D-9 and the revenue records Ex.D-2, D-3, D-4, D-5, D-6, D-7, D-8, D-9 and Ex.P-1, P-5, P-6 which established the fact of ownership and possession of defendant. 2. Whether the admission of the plaintiff have been ignored and the decree for injunction which has been passed against true owners in possession of the property is sustainable? 3. Whether in view of the decision in Civil Suit Jamna Dass Vs. Manohar Lal, Civil Suit No. 147/90 by Senior Sub Judge, Una on 9.8.94 (sic 2.8.1994), the findings are sustainable in law and the appellant is entitled to lead additional evidence? 9. The substantial questions of law No. 3 is taken up first for determination. 3. Whether in view of the decision in Civil Suit Jamna Dass Vs. Manohar Lal, Civil Suit No. 147/90 by Senior Sub Judge, Una on 9.8.94 (sic 2.8.1994), the findings are sustainable in law and the appellant is entitled to lead additional evidence? 9. The substantial questions of law No. 3 is taken up first for determination. The appellant has filed CMP No. 508 of 2001 for additional evidence to produce the certified copy of the judgment in Civil Suit No. 147 of 1990 decided on 2.8.1994 by the learned Senior Sub Judge, Una. The said suit was filed by Jamna Dass against Manohar Lal, Ram Chand and Janak Raj. The suit was for declaration regarding land comprised in Khasra No. 90. The present suit out of which the above appeal has arisen is with respect to land comprised in Khasra No. 296. In the said suit, the appellants were not parties. The land involved in case No. 147 of 1990 was different from the land involved in the present lis. The judgment dated 2.8.1994 in case No. 147 of 1990 will not assist this Court in determining the real dispute between the parties. In these circumstances, no case has been made out for additional evidence and, therefore, CMP No. 508 of 2001 is dismissed. The substantial question of law No. 3 is decided against the appellants. 10. The substantial questions of law No. 1 and 2 are interconnected and therefore, both the substantial questions of law are taken up together for determination. It has been submitted on behalf of the appellants that the learned District Judge has misconstrued, misinterpreted the sale deed Ex.DW-1/A, plaint Ex.D-1, judgment Ex.D-9, revenue records Ex.D-2 to D-8 and also Exts. P-1, P-5 and P-6. 11. PW-1 Jamna Dass respondent has stated that he never left the possession of the suit land nor anybody came in possession thereof. DW-1 Satish Kumar, appellant No.2 has stated that Sadhu Ram had sold the suit land in favour of Jamna Dass and his brother Gurdial vide sale deed Ex.DW-1/A. He has stated that Nikka Ram and Roshan Lal had filed a suit for pre-emption and in execution Nikka Ram and Roshan Lal took possession. Thereafter, the suit land was sold by Nikka Ram and Roshan Lal to their predecessors in title Dev Raj and Jagdish Ram. The appellants are in possession since the time of sale. Thereafter, the suit land was sold by Nikka Ram and Roshan Lal to their predecessors in title Dev Raj and Jagdish Ram. The appellants are in possession since the time of sale. In cross-examination, he has stated that Nikka Ram and Roshan Lal took possession in the year 1955 but possession was not given in his presence. 12. It emerges from the evidence on record that even as per the case of the appellants at one point of time, the respondent was in possession of the suit land. According to the appellants, Nikka Ram and Roshan Lal their predecessors in title came in possession of the suit land by executing the pre-emption decree and thereafter Nikka Ram and Roshan Lal sold the suit land to Dev Raj and Jagdish Ram and from the date of sale in favour of Dev Raj and Jagdish Ram the appellants are claiming possession over the suit land. 13. The learned counsel for the appellants has submitted that on the basis of Ex.D-1 to Ex.D-9, Ex.DW-1/A, Ex.P-1, Ex.P-5 and Ex.P-6 the appellants are in possession of suit land. However, DW-1 in his statement has stated that Nikka Ram and Roshan Lal took possession of the suit land by executing pre-emption decree, but that record has not been brought in evidence. Thus foundation for change of possession over the suit land from respondent in favour of appellants has not been established. In absence of such material, the revenue record showing the possession of the appellants over the suit land is meaningless. The learned District Judge has considered this aspect rightly in the impugned judgment. The finding of possession on the suit land in favour of respondent recorded by the learned District Judge is based upon appreciation of evidence which cannot be interfered with unless it is shown that the view taken by the learned District Judge is perverse or based upon no evidence or otherwise based upon inadmissible evidence, which appellants have failed to establish. Thus, seen from any angle, the findings of the learned District Judge regarding possession on the suit land emerges from the evidence on record. There is no merit in the appeal. The substantial questions of law No. 1 and 2 are decided against the appellants. 14. No other point has been urged. 15. The result of above discussion, the appeal fails and is accordingly dismissed.