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2012 DIGILAW 433 (HP)

Joginder Singh v. Thebo Devi & Connected Matter

2012-08-16

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 23.12.2003, passed by the learned Additional District Judge, Mandi, H.P. in Civil Appeal No. 72 of 1998. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the predecessor-in-interest of the appellants/plaintiffs, namely, Sh. Dhanna Ram (hereinafter referred to as ‘the original plaintiff’ for the sake of convenience) has filed a Civil Suit in the Court of learned Sub Judge, 1st Class, Jogindernagar, District Mandi, H.P. bearing Civil Suit No. 02 of 1990 for declaration. The Civil Suit was dismissed by the learned Sub Judge, 1st Class, Jogindernagar, District Mandi, H.P. on 09.02.1993. The original plaintiff, Dhanna died during the pendency of Civil Suit No. 02 of 1990 and his legal representative were brought on record. The appellants-plaintiffs (hereinafter to be referred as ‘the plaintiffs’ for the sake of convenience) preferred an appeal bearing Civil Appeal No. 33 of 1993 before the learned District Judge, Mandi. Learned District Judge, Mandi, H.P. permitted the suit to be withdrawn vide order dated 17.0 1.1994 with liberty to institute a fresh suit in respect of the same cause of action, subject to costs of `550/-. Thereafter, Civil Suit No. 52 of 1994 was filed by the plaintiffs before the learned Sub Judge, 1st Class, Jogindernagar on 02.04.1994. 3.The case of the plaintiffs, in a nut-shell is that they are owners in possession of land comprised in Khasra No. 109, 116/1, 120, 124, 131, 132, 134, Kita 7, measuring 17-8-14 bighas, situated in Mauza Chela Pargana, Dhundha, Sub Tehsil Padhar, District Mandi, H.P. to the extent of 1/2 share and in the alternative, they sought a decree for joint possession of the suit land. According to them, the suit land was owned and possessed by the late father of plaintiff No. 1, namely, Joginder Singh, proforma defendants and husband of plaintiff No. 2, namely, Smt. Jaiwanti to the extent of half share, whereas the remaining half share was owned and possessed by defendant No. 1, Sh. Narain Dass. However, the defendant was recorded in the revenue record as exclusive owner in possession of the suit land. This fact came to the knowledge of the plaintiffs on 04.11.1989, when the plaintiffs visited the Patwari Halqua. Thereafter, the plaintiffs asked the defendant to get the revenue record corrected. Narain Dass. However, the defendant was recorded in the revenue record as exclusive owner in possession of the suit land. This fact came to the knowledge of the plaintiffs on 04.11.1989, when the plaintiffs visited the Patwari Halqua. Thereafter, the plaintiffs asked the defendant to get the revenue record corrected. It is in these circumstances, the suit was filed by the plaintiffs. 4.The suit was contested by the defendant. He has denied that the suit land was ever owned and possessed by the plaintiffs’ father, namely, Dhanna Ram. According to him, the suit land was in his cultivatory possession exclusively as a tenant and he had been conferred with proprietary rights qua the suit land and, as such, the plaintiffs and proforma defendants have got no right, title or interest over the suit land. The plea of limitation was specifically taken. 5.The replication was filed by the plaintiffs. The learned Sub Judge, 1st Class, Jogindernagar, District Mandi, H.P. framed the issues on 18.09.1996. The learned Sub Judge 1st Class, Jogindernagar, District Mandi, H.P. decreed the suit on 15.09.1998. The defendant, namely, Narain Dass preferred an appeal before the learned District Judge, Mandi, H.P. bearing Civil Appeal No. 72 of 1998. The same was allowed by him on 23.12.2003. Hence, this Regular Second Appeal. 6.This Regular Second Appeal was dismissed by this Court in limine on 10.08.2004. Thereafter, an appeal bearing Civil Appeal No. 2814 of 2006 was preferred before the Hon’ble Supreme Court against the judgment dated 10.08.2004, which was allowed by the Hon’ble Supreme Court on 05.04.2011 and the matter was remitted back to this Court. The Regular Second Appeal was admitted on the following substantial questions of law on 03.08.20 12: “1.Whether the 1st Appellate Court has misread and misconstrued the document Ex.-DY treating it as viodable document instead of null and void document, which has materially prejudiced the case of the appellants?2.Whether the 1st Appellate Court has wrongly held that in the present case provisions of Article 100 of the Limitation Act are attracted in place of provisions of Article 65 of the Limitation Act, which has totally prejudiced the case of the appellants? The parties were permitted to advance their arguments on these substantial questions law. 7.Mr. G.R. Palsra, learned counsel for the appellants has supported the judgment of the learned Sub Judge 1st Class, Jogindernagar, District Mandi, dated 15.09.1998. The parties were permitted to advance their arguments on these substantial questions law. 7.Mr. G.R. Palsra, learned counsel for the appellants has supported the judgment of the learned Sub Judge 1st Class, Jogindernagar, District Mandi, dated 15.09.1998. According to him, the learned 1st Appellate Court has mis-read Ex.-DY. According to him, the case was covered under Article 65 of the Limitation Act and not under Article 100 of the Limitation Act, as held by the 1st Appellate Court. 8.Mr. G.D. Verma, learned Senior Advocate has supported the judgment and decree passed by the learned 1st Appellate Court. He then argued that the plaintiff has never challenged the order passed by the Compensation Officer, dated 28.09.1967, on the basis of which, mutation Ex.-DY was attested on 13.06.1970. He also argued that the limitation is one year, as laid down under Article 100 and not three years as per Article 65 of the Limitation Act. 9.I have heard the learned counsel for the parties and gone through the pleadings carefully. 10.Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 11.The Court has gone through the plaint filed by the plaintiffs. The case of the plaintiffs, as stated in the plaint, is that the land, as detailed hereinabove, was owned and possessed by Shri Dhana Ram to the extent of half share and rest of the half share was owned and possessed by defendant No. 1, namely, Shri Narain Dass. According to them, the defendant has wrongly got himself recorded in the revenue record as exclusive owner in possession of the suit land. They came to know about this fact on 04.11.1989. The plaintiffs have prayed that they be declared owners-in-possession of the suit land to the extent of half share and in case they are found out of possession of the suit land, in that eventuality, joint possession of the suit land be granted to them. 12.There is no murmur of the order passed by the Compensation Officer, dated 28.09.1967, on the basis of which, mutation was attested on 13.06.1970. In fact, the plaintiffs have not assailed the order dated 28.09.1967, passed by the Compensation Officer under Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter referred to as ‘the Act’ for the sake of convenience). In fact, the plaintiffs have not assailed the order dated 28.09.1967, passed by the Compensation Officer under Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter referred to as ‘the Act’ for the sake of convenience). The proprietary rights were conferred upon defendant Narain Dass on the basis of order dated 28.09.1967, passed by the Compensation Officer. This fact has been mentioned in the mutation attested on 13.06.1970 vide Ex.-DY. In the subsequent revenue entries, i.e., jamabandis for the years 1968-69, Ex. D-1, 1973-74, Ex. D-2, 1976-77, Ex. D-3, 198 1-82, Ex. D-4, 1986-87, Ex. D-5 and for the year 199 1-92, Ex. D-6, the defendant has been shown in exclusive possession of the suit land. The presumption of truth is attached to these revenue entries and no tangible evidence has been brought on record by the plaintiffs to rebut these entries. The defendant, in his written statement, has taken a specific ground that he has been conferred the proprietary rights more than 15 years back. 13.The plaintiffs have not chosen to amend the plaint to specifically assail the order passed by the Compensation Officer on 28.09.1967. The plaintiffs have not even challenged the mutation order dated 13.06.1970 based on order dated 28.09.1967. However, surprisingly, the learned Sub Judge, on the basis of Ex. P-1, P-X and D-Z, came to the conclusion that since the name of Dhanna Ram was mentioned in these entries, he was required to be conferred the proprietary rights by the Compensation Officer. It was not the case, set up by the plaintiffs in the plaint. The plaintiffs have claimed themselves to be the owners in possession of the suit land. The learned trial Court has declared the order dated 28.09.1967 null and void without there being any specific challenge laid to this order. He could not declare the order to be without jurisdiction. There is a detailed procedure in which the proprietary rights could be conferred under Section 15 of the Act by the Compensation Officer. 14.There is no merit in the contention of Mr. G.R. Palsra, learned counsel for the appellants that the mutation was to be attested by the learned A.C. 1st Grade. What is required under the law, is that the order is to be passed by the competent officer. In this case, the Compensation Officer has passed the order dated 28.09.1967 under Section 15 of the Act. G.R. Palsra, learned counsel for the appellants that the mutation was to be attested by the learned A.C. 1st Grade. What is required under the law, is that the order is to be passed by the competent officer. In this case, the Compensation Officer has passed the order dated 28.09.1967 under Section 15 of the Act. It would be pertinent to mention at this stage that even in the exhibits relied upon by the trial Court, it is the defendant, who has been shown in cultivating possession and not Shri Dhanna Ram. The trial Court has altogether made a new case for the plaintiffs, which was not at all pleaded. 15.Earlier, a Civil Suit No. 2 of 1990 has been filed by the predecessor-in-interest of the plaintiffs, Sh. Dhanna Ram in the Court of learned Sub Judge, 1st Class, Jogindernagar, District Mandi, H.P. on 05.0 1.1990. It was dismissed on 09.02.1993. The appeal and the civil suit were permitted to be withdrawn by the learned District Judge on 17.01.1994. It is in these circumstances, a fresh suit was filed on 02.04.1994. According to the plaintiffs, they came to know about the revenue entries made in favour of the defendant only on 04.11.1989. There have been consistent entries made in favour of defendant w.e.f. 1968-69 till 1986-87. As discussed hereinabove, the plaintiffs have not chosen to challenge the order passed by the Compensation Officer on 28.09.1967, which has led to the attestation of mutation dated 13.06.1970. Since the order has been passed by the competent authority while discharging official duties, the limitation was one year, as provided under Article 100 of the Limitation Act. The learned District Judge has rightly come to the conclusion that the limitation was one year and not three years. The learned District Judge has correctly appreciated Ex. D-Y, attestation of mutation dated 13.06.1970. The limitation was one year and the present suit was barred by limitation, since the cause of action has arisen to the plaintiffs initially when the order was passed by the Compensation Officer on 28.09.1967 and thereafter when the mutation was attested on 13.06.1970. The Compensation Officer has passed the order in his official capacity. There is no substantial question of law involved in this Regular Second Appeal. 16.Accordingly, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.