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2012 DIGILAW 658 (HP)

Roshan Lal v. Meena Kumari

2012-10-03

SURINDER SINGH

body2012
Judgment Surinder Singh, J. 1. The present Regular Second Appeal has been filed by the defendants under Section 100 of the Code of Civil Procedure against the judgment and decree of the learned Additional District Judge in Civil Appeal No. 49 of 2003 decided on 24.9.2004 whereby he affirmed the findings of the learned trial Court in Civil Suit No. 69 of 2002 of 1996 dated 30.9.2002. 2. The appeal was admitted on the following substantial questions of law:- (i). Whether the plea taken by the appellants in the proceedings before the collector in the year 1974 that they are the exclusive owners in possession of the suit property amounted to the plea of ouster of the plaintiffs, serving as foundation to the plea of adverse possession? (ii). Whether the trial Court had the pecuniary jurisdiction to try and decide the suit? 3. In short, the facts giving rise to the present appeal can be stated thus. Respondents No.1 to 5 herein were the plaintiffs before the learned trial Court. They had filed suit against the appellants and proforma respondents hereinafter referred to as ‘the defendants’ to the effect that the suit land comprised in khata khatauni No. 876/192 to 196 kita 6 measuring 2-7-13 bighas situated in village Mumail Tehsil Karsog District Mandi, H.P., hereinafter referred to as the ‘suit land’, was in joint ownership and possession of the parties to the suit as it being un-partitioned land. They claimed 1/3rd share in the suit land and contended that their application for partition was wrongly dismissed by the Assistant Collector st Grade Karsog on 8.3.1994 on the ground that the question of title was involved. One of the plaintiffs had also filed similar application seeking partition in the year 1976 which was also dismissed on the same ground. Since the defendants did not want the partition of the land despite having been asked thus, the declaration was sought that the suit land is still unpartitioned and joint inter se and the plaintiffs are entitled to seek partition through the process of law to the extent of their share. 4. The appellants, sons of Purshotam were contesting defendants before the learned trial Court laid strong resistance to the suit. According to them, a family partition had already taken place about six years back, to this effect a writing was also executed. 4. The appellants, sons of Purshotam were contesting defendants before the learned trial Court laid strong resistance to the suit. According to them, a family partition had already taken place about six years back, to this effect a writing was also executed. After the partition, Shri Purshotam, predecessor of defendant No. 4 Shri Roshan lal applied for nautor as such khasra No. 485 was sanctioned to him. After his death Roshan Lal defendant succeeded to the said land but due to some error, thus land was mutated in favour of Manu and Lachman predecessors of defendants No. 1 to 3 and 5 to 10 as well as plaintiffs, hence these entries were incorrect. Further, according to them, the earlier applications for partition were dismissed by the revenue Court as the question of title had arisen. The appeal was also dismissed by the Sub Divisional Collector and in the alternative prayed that in case it is proved that khasra No. 485 is joint inter se the parties, in that event, defendant No. 4 has acquired title by way of adverse possession. 5. Other defendants admitted the claim of the plaintiffs by their separate written statements affirming the possession that the suit land was joint inter se them and they have no objection in granting the decree to the plaintiffs as sought for. 6. On the pleadings of the parties the learned trial Court framed following issues:- 1.Whether the suit land is joint un-partitioned and the plaintiffs are entitled to get 1/3rd share out of it? OPP. 2. Whether the private partition has taken place between the forefather of parties if so its effect? OPD. 3. Whether the father of the defendant No.4 has acquired the khasra No. 485 as nautor land after family partition and the same is his separate land, if so its effect? OPD. 4. Whether defendant No. 4 has become owner of the suit land by way of adverse possession as alleged? OPD. 5. Whether the plaintiffs are estopped to file the suit as alleged? OPD. 6. Whether the suit is time barred as alleged? OPD. 7. Whether the plaintiffs have no locus-standi to file the suit as alleged? OPD. 8. Whether the suit is hit by the provisions of Order 2 Rule 2 CPC, if so its effect? OPD. 9. Relief. 7. 5. Whether the plaintiffs are estopped to file the suit as alleged? OPD. 6. Whether the suit is time barred as alleged? OPD. 7. Whether the plaintiffs have no locus-standi to file the suit as alleged? OPD. 8. Whether the suit is hit by the provisions of Order 2 Rule 2 CPC, if so its effect? OPD. 9. Relief. 7. After complete trial, the learned trial Court answered all the issues in favour of the plaintiffs taking note of the statement of DW Roshan Lal who only claimed khasra No. 485. He had no objection for granting relief qua rest of the suit land. The learned trial Court observed that the defendants aforesaid were unable to produce any document qua the grant. His self-serving statement was not believed. Contrary to it, revenue entries with respect to this khasra number show that it was jointly owned and possessed by the parties. Though this fact is admitted by the contesting defendants rather their case is that it was contrary to the entries in the revenue records and to prove it, there is no reliable evidence. The statements of the parties recorded by the revenue officer in the partition application in the year 1976 were held to be of no consequence to prove the title qua the said khasra number in favour of defendant No. 4. Therefore, he was not held to be exclusive ownership and possession of khasra No. 485. And I on examination of record do not find any perversity in it. 8. Further, the contesting defendants did not admit the plaintiffs to be the owner of this khasra number so as to make a claim of adverse possession rather the case of the contesting defendants was that it was only defendant No. 4 who was owner in possession thereof. In the alternative prayed that he had acquired the title of the suit land by way of adverse possession against the co-sharers which was also rightly rejected by the learned trial Court as he failed to prove their complete ouster. 9. The learned trial Court also took into consideration the document Ext. PW2/A photocopy of which is Ext. DW4/A to show the severance of status of joint-ness. 9. The learned trial Court also took into consideration the document Ext. PW2/A photocopy of which is Ext. DW4/A to show the severance of status of joint-ness. Though Shri Sanjeev Kuthiala, learned counsel for the contesting defendants fairly and squarely admitted that it is not a document of partition but is a document of family settlement made inter se the then co-sharers for the purpose of cultivation of the joint holdings which is not required to be registered. However, it is not understood as to how this evidence was allowed to be led in absence of the primary evidence, without seeking permission in accordance with law. The learned counsel for the contesting defendants further argued that the document is more than 30 years old therefore; no formal proof of the execution of the said document is required. But this argument is only raised to be rejected for the reason that it has not been proved as to where and whose custody is the original document. Mere marking the exhibit to this document is not enough and would not prove its contents. The learned trial Court wrongly held that this document was required to be registered, because otherwise also it shows that it was a family arrangement which does not require any registration. But as already held it per-se is inadmissible in evidence for want of original. Though the learned trial Court rightly held that the property in question is un-partitioned and parties are joint owners, the plaintiffs can be granted the relief sought for which was allowed and these findings were challenged in appeal before the learned Additional District Judge. On the reappraisal of the entire evidence on record, he concurred with these findings of the learned trial Court with respect to the joint-ness of the property in question inter se the parties and denial of adverse possession as claimed by defendant No.4. Hence the appeal was rightly dismissed. 10. In nutshell, the alleged deed of partition is not proved in accordance with law. Otherwise also the document in question only reveals that it was a family arrangement with respect to the agriculture lands. But there was no separate mutation in the revenue record nor there was any disruption of the joint status. 11. 10. In nutshell, the alleged deed of partition is not proved in accordance with law. Otherwise also the document in question only reveals that it was a family arrangement with respect to the agriculture lands. But there was no separate mutation in the revenue record nor there was any disruption of the joint status. 11. In so far as khara No. 485 is concerned, since this land along with others mentioned in the plaint is held to be joint inter se the parties as defendant No.4 failed to prove as having been allotted to his father Lachman under the nautor Rules thus, he being joint owner along with parties to the lis has failed to prove the complete ouster of the other co-sharers. Reference to the orders of the Assistant collector 1st Grade passed in the year 1976 and also subsequently in the year 1994 could only be a claim but do not prove his plea of adverse possession by complete ouster. 12. The plea taken by the defendants in the proceedings before the Collector in the year 1976 that they were exclusive owners in possession of the suit land would not amount to plea of ouster to serve as a foundation of the plea of adverse possession, in the above facts and circumstances of the case. Therefore, the plea of adverse possession was rightly rejected. 13. In so far as the pecuniary jurisdiction to try and decide the suit is concerned, this plea was neither taken before the 1st appellate Court nor the contentions made in the plaint were denied in the written statement by the defendants. Therefore, it cannot be allowed to be taken for the first time in the Regular Second Appeal. Further, it is important to note that the suit of the plaintiffs was for declaration to the effect that the suit land is unpartitioned and joint inter se the parties and they were entitled to 1/3rd share therein and to seek partition from the revenue Court. Paras 6 and 7 of the plaint deal with the Court fee and jurisdiction and the said paras are not disputed by the contesting defendants in the written statement. Paras 6 and 7 of the plaint deal with the Court fee and jurisdiction and the said paras are not disputed by the contesting defendants in the written statement. Since there are concurrent findings of facts and otherwise also it is not within the domain of this Court to investigate the grounds on which the findings were arrived at, by the last Court of fact as held in Kondiba Dagadu Kadam versus Savitribai Sopan Gujar and others AIR 1999 SC 2213 and also in Christopheer Barla versus Basudev Naik (D) by LRs AIR 2005 SC 1020 . 14. For the reasons aforesaid, in my opinion, though no question of law muchless the substantial question of law involves in the present appeal, therefore, I find no force in the appeal hence it is dismissed. No other point urged or pressed. The parties to bear their own costs. 15. This application is also dismissed for the reasons that there appears to be a bonafide mistake qua the compliance of the order. The plaintiffs in order to construct a septic tank dug out a portion of suit khasra No. 122 realizing their mistake they tendered unconditional apology in their reply. However, it is already held that the suit land is joint inter se the parties and the plaintiffs can seek partition of the land, in my judicial discretion, I do not feel that any action should be taken against the plaintiffs in the peculiar circumstances of this case. The application is accordingly dismissed.