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2012 DIGILAW 245 (HP)

Jagdish Thakur v. Shiv Dayal Alias Shiv Dass

2012-05-02

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. - This Regular Second Appeal is directed against the judgment and decree dated 14.10.2003 rendered by the learned District Judge, Bilaspur in Civil Appeal No.2 of 1996. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondents-plaintiffs and their predecessor-in-interest instituted a suit for declaration with consequential relief of permanent injunction against Smt. Mahanti. Smt. Mahanti has died during the pendency of this Regular Second Appeal and her legal representatives were brought on record vide order dated 24.3.2005. According to the plaintiffs, plaintiffs and proforma defendants, namely, Sumitra Devi and Chet Ram were joint owners in possession of the land described in Khewat No. 16, Khatauni No. 11, Khasra No. 151 measuring 10-9 bighas situated in revenue estate Bhajwani, Pargana Geharwin, Tehsil Ghumarwin, District Bilaspur. According to the plaintiffs, defendants had no right, title and interest in the suit land. According to the plaintiffs, land was owned and possessed by one Sh. Dittu Ram son of Sh. Bardu. Dittu Ram sold occupancy rights of the suit land in favour of the predecessor-in-interest of the plaintiffs and proforma defendants No.2 and 3, namely, Sumitra Devi and Chet Ram vide sale deed dated 26th Baisakh Samvat 1986 B.K. for Rs. 300/-. The possession of the same was also handed over to the predecessor-in-interest of the plaintiffs and proforma defendants No.2 and 3 on 26th Baisakh Samvat 1986 B.K. corresponding to 1929 A.D. Plaintiffs and proforma defendants No.2 and 3 came into possession of the suit land after the death of their predecessor-in-interest. They have acquired the proprietary rights after the enforcement of Himachal Pradesh Tenancy and Land Reforms Act, 1972. According to the plaintiffs, defendant Mahanti had instituted a suit bearing civil suit No. 60/1 of 1959 against third party in 1959. The same was decreed on 13.3.1962 by the learned Senior Sub Judge, Bilaspur. Thereafter, defendant was entered owner in possession of the suit land. According to the plaintiffs, judgment and decree dated 13.3.1962 passed in favour of Smt. Mahanti (deceased) was wrong, illegal and void and was not binding on them and proforma defendants, namely, Sumitra Devi and Chet Ram. Defendants have started interfering in their possession with effect from July, 1992. It is in these circumstances, the suit was instituted by the plaintiffs. 3. Suit was contested by the defendant Mahanti (deceased). Defendants have started interfering in their possession with effect from July, 1992. It is in these circumstances, the suit was instituted by the plaintiffs. 3. Suit was contested by the defendant Mahanti (deceased). Defendant has denied the ownership and possession of the plaintiffs and proforma defendants No.2 and 3 of the suit land. According to her, the predecessor-in-interest of the plaintiffs and proforma defendants No.2 and 3 had not purchased occupancy rights of the suit land from her father Dittu Ram. According to her, Dittu Ram was not the full owner of the suit land; hence, he could not sell the suit land or occupancy rights thereof in favour of the predecessor-in-interest of the plaintiffs and proforma defendants No.2 and 3. According to her, the King of erstwhile State of Bilaspur was stated to be the supreme owner of all the landed property situated within the jurisdiction of princely estate. The King was ALLAMALIK and Dittu Ram was only ADNA MALIK. It is further averred that the land could not be sold without the prior permission of the King. She also contended that the Punjab Tenancy Act, 1887 was not applicable to the princely estate of Bilaspur. She has admitted that she had instituted suit against third party. The same was decreed by the learned Senior Sub Judge on 13.3.1962. She has supported the entries made in her favour pursuant to judgment dated 13.3.1962 in the revenue records. 4. Trial court framed Issues. Trial court dismissed the suit on 30.11.1995. Plaintiffs preferred an appeal before the learned District Judge, Bilaspur. He decreed the suit. Names of proforma defendants Smt. Sumitra and Chet Ram were also added in the memo of parties of the appeal. Learned District Judge set aside the judgment and decree passed by the learned Sub Judge 1st Class and decreed the suit. Plaintiffs and proforma defendants No.1 and 2 were declared owners in possession of the suit land. Defendant Mahanti was permanently restrained from interfering with the ownership and possession of the plaintiffs and proforma defendants No.2 and 3 of the suit land by issuing decree of perpetual injunction. Hence, the Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether the suit of the plaintiff was barred by the period of limitation particularly in view of the findings in civil suit No. 61/1 of 1959 decided on 13.3.1962? 2. Hence, the Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether the suit of the plaintiff was barred by the period of limitation particularly in view of the findings in civil suit No. 61/1 of 1959 decided on 13.3.1962? 2. Whether the first appellate court misapplied and misinterpreted the provisions of Himachal Pradesh Tenancy and Land Reforms Act in holding that the plaintiffs-respondents, who purchased the occupancy rights, became owners of the suit property by operation of Himachal Pradesh Tenancy and Land Reforms Rules? 5. Mr. Bhupender Gupta, learned Senior Advocate has vehemently argued that the suit filed by the plaintiff was barred by limitation. He also argued that the first appellate court has misinterpreted the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. 6. Mr. Rajnish K. Lall 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 are taken up together for determination to avoid repetition of discussion of evidence. 9. Case of the plaintiffs, in a nutshell, is that Sh. Dittu Ram was owner in possession of the suit land. He on 26th of Baisakh Samvat 1986 B.K. corresponding to 1929 A.D. has sold the occupancy rights of the suit land in favour of the predecessor-in-interest of the plaintiffs and proforma defendants No.2 and 3, namely, Sumitra Devi and Chet Ram for Rs. 300/-. The same was registered vide Ex.PA/1. Plaintiffs had taken over the possession of the suit land. Dittu Ram had parted with possession of the suit land in favour of Tholu, Gambhir Singh and Durga vide Ex.PA-1. Defendant Mahanti was daughter of Sh. Dittu Ram. She had also instituted civil suit No. 60/1 of 1959 against the collateral's of Dittu Ram in the court of Senior Sub Judge, Bilaspur on 10.3.1959. She had claimed the possession of the estate of her father in civil suit No. 61/1 of 1959. The suit was contested by the collateral's. Senior Sub Judge vide judgment and decree dated 13.3.1962 had observed that she was entitled to the possession of estate of her father. The decree for joint possession of the suit land was passed in favour of Mahanti Devi, vide judgment and decree dated 13.3.1962. The suit was contested by the collateral's. Senior Sub Judge vide judgment and decree dated 13.3.1962 had observed that she was entitled to the possession of estate of her father. The decree for joint possession of the suit land was passed in favour of Mahanti Devi, vide judgment and decree dated 13.3.1962. Neither plaintiffs nor proforma defendants were added as parties in civil suit No. 61/1 of 1959. Plaintiffs and proforma defendants No.2 and 3 are claiming possession over the suit land on the basis of sale deed Ex.PA/1. Plaintiffs have relied upon the jamabandi with effect from 1935-36 to establish that their predecessor-in-interest and themselves had been in possession of the suit land to the exclusion of Dittu Ram. Mahanti was required to implead the plaintiffs as well as proforma defendants No.2 and 3 in civil suit No. 60/1 of 1959. Mutation No. 324 dated 28.9.1984 has been attested in favour of defendant Mahanti on the basis of judgment dated 13.3.1962. Defendant has not led any tangible evidence on record to establish how mutation dated 28.9.1984 was attested in her favour when her father had already sold the land to the predecessor-in-interest of the plaintiffs and proforma defendants vide Ex.PA/1. There is no evidence led by the defendant that the predecessor-in-interest of the plaintiffs and proforma defendants were ever dispossessed from the suit property. Cause of action has arisen to the plaintiffs in the year 1992 when the defendant started interfering in possession of the plaintiffs and the suit was instituted on 15.9.1992. Plaintiffs have also produced Ex.PC pedigree table to establish that they and proforma defendants were legal representatives of Tholu, Gambhir Singh and Durga sons of Raghunath. 10. PW-1 Shiv Dayal has testified that the plaintiffs and proforma defendants No.2 and 3 and their predecessor-in-interest were in possession of the suit land to the exclusion of Mahanti Devi and her father. According to Mr. Amar Nath, Deed Writer, the sale deed Ex.PA/1 was scribed by Ramji Dass, Deed Writer. Ramji Dass has died. PW-2 Amar Nath was conversant with the hand-writing and signatures of Ramji Dass having worked with him. It is also appropriate at this stage to take note of mutation No. 91 attested in favour of Tholu, Gambhir Singh and Durga sons of Raghunath on the basis of Ex.PA/1. They were entered in possession of the suit land as occupancy tenants. PW-2 Amar Nath was conversant with the hand-writing and signatures of Ramji Dass having worked with him. It is also appropriate at this stage to take note of mutation No. 91 attested in favour of Tholu, Gambhir Singh and Durga sons of Raghunath on the basis of Ex.PA/1. They were entered in possession of the suit land as occupancy tenants. When the Himachal Pradesh Tenancy and Land Reforms Act, 1972 came into force on 21.2.1975 they acquired proprietary rights. Once the occupancy rights had been sold to the predecessor-in-interest of the plaintiffs and proforma defendants, the defendant could not be declared the owner of the suit land. The findings recorded by the learned first appellate court that the suit was within limitation and the proprietary rights have rightly been conferred upon the plaintiffs and proforma defendants No.2 and 3 after coming into force the Himachal Pradesh Tenancy and Land Reforms Act, 1972 on the basis of Ex.PA/1 and mutation No. 91 attested in favour of the plaintiffs and proforma defendants No. 2 and 3 on 29th Kartik 1989 and entries made in the subsequent jamabandis consistently, which remains unrebutted, are correct. 11. Accordingly, in view of the observations and analysis made herein above, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.