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2012 DIGILAW 746 (HP)

Brij Bhushan Lal Aggarwal v. Anil Kumar

2012-10-19

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. 1. This Regular Second Appeal is directed against the judgment and decree, dated 31.10.2001, passed by the learned Additional District Judge, Sirmaur District at Nahan, H.P. in Civil Appeal No. 46-N/13 of 2000. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the predecessor-in-interest of the respondents-plaintiffs, namely, Mansha Ram (hereinafter referred to as ‘the plaintiff’ for the sake of convenience) has filed a suit against the appellants-defendants (hereinafter referred to as ‘the defendants’ for the sake of convenience). According to the plaintiff, he was owner in possession of the land comprised under Khata No. 1/7 min, Khatauni Nos. 1, 2, 4, 5, Khasra Nos. 1433, 1436, 1448, 1456, 1454 and 1455, situate in Mauza Chauni Shamsherpur, Had Bast No. 45, Tehsil Nahan, District Sirmaur, H.P. (hereinafter referred to as the suit land). On the part of the suit land comprised in Khasra Nos. 1454 and 1455 corresponding to old Khasra No. 578/525 min, measuring 0-00-88 hectare, he and his predecessors-in-interest had constructed a temple known as ‘Devi Bala Sundari’. However, during settlement operation, the concerned officials effected wrong entries in respect of this and showed it to be ‘Ahalai Hanood’ (Hindu Community at large). The Revenue Authorities also effected wrong entries in respect of another part of the suit land comprised in Khasra No. 1456 (old No. 581/526), measuring 0-13-34 hectare and showed the same to be ‘Rafai-Aam Chiranwalai Talaab’ (Rafai Aam means general public). The defendants started interfering with the temple on March 31, 1996. They were asked to desist from their unlawful activities, but to no avail. It is in these circumstances, the plaintiff has instituted a suit against the defendants for declaration and injunction. He has sought declaration that he was owner in exclusive possession of the suit land and that the revenue entries showing part of the suit land comprised of Khasra No. 1456 to be ‘Rafai Aam Chiranwalai Talaab’ and another part comprised in Khasra Nos. 1454 and 1455 to be ‘Ahalai Hanood’, are illegal and unauthorized. He also sought permanent prohibitory injunction restraining them from interfering with the suit land. 3. The suit was contested by the defendants. They have justified the entries made in the revenue record. According to them, the pond has been in the use of the general public for their cattle for the last 150 years. He also sought permanent prohibitory injunction restraining them from interfering with the suit land. 3. The suit was contested by the defendants. They have justified the entries made in the revenue record. According to them, the pond has been in the use of the general public for their cattle for the last 150 years. They have denied that the temple was constructed by the ancestors of the plaintiff. According to them, it was built by their ancestors and other Hindu devotees of Nahan town before the birth of the plaintiff. According to the defendants, they and other Hindu devotees of Nahan town have been worshipping the Diety-Mata Bala Sundari, their Kul Devi without any hindrance either from the ancestors of the plaintiff or other co-sharers of the suit land. Claiming to have acquired easementary rights in respect of the temple and the pond, the defendants further averred that they and other Hindu devotees of Nahan town had been maintaining and managing the temple without any interference from the plaintiff. 4. The replication was filed by the plaintiff. The learned Senior Sub Judge, Sirmaur District at Nahan, H.P. has framed the issues on 20.02.1997. The suit was decreed on 10.04.2000. It was declared that the revenue entries showing the suit land comprised under Khasra No. 1454 to 1456 as ‘Rafai Aam and Aehle Hanood’, were illegal, null and void made without lawful orders of the competent authority. The defendants preferred an appeal before the learned Additional District Judge, Sirmaur District at Nahan, H.P. He dismissed the same on 31.10.2001. Hence, this Regular Second Appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law on 25.02.2002: “1. Whether present suit is not maintainable in which entries of ‘Ahle Hanood’ and Rafai Aam with respect to suit land have been assailed without impleading general public or without filing the suit in representative capacity against the defendants. 2. Whether two courts below have committed an error of law in not drawing adverse inference against plaintiffs as original plaintiff Mansha Ram did not appear in the witness box and the statement of his attorney and son PW-1 Puran Chand can be read in evidence only as a statement of a witness and not that of a party. 3. 2. Whether two courts below have committed an error of law in not drawing adverse inference against plaintiffs as original plaintiff Mansha Ram did not appear in the witness box and the statement of his attorney and son PW-1 Puran Chand can be read in evidence only as a statement of a witness and not that of a party. 3. Whether two courts below have misconstrued, misinterpreted and misapplied the oral, documentary evidence on record and the view taken by them is not possible on the basis of material on record.” 6. Mr. K.S. Kanwar, learned counsel for the appellants has vehemently argued that the Courts below have mis-read and mis-construed the oral as well as documentary evidence. 7. Mr. Romesh Verma, learned counsel for respondents No. 1 to 5 has supported the judgments and decrees passed by both the Courts below. 8. I have heard the learned counsel for the parties and 9. Since all the substantial questions of law are 10. PW-1, Puran Chand has deposed that the plaintiff was his father, aged 90 years. He was well conversant with the facts of the case. According to him, ‘Mata Bala Sundari temple was ancestral. It was in dilapidated condition. It was re-constructed with the help of the State Government and they also contributed. They perform pooja in the temple. The defendants have no concern with the temple. They have started interfering with the temple affairs. According to him, there is a Talaab (pond) near the temple. The water collects in the Talaab during Rainy season and in Summer it dries up. It was in their possession and nobody can use the water without their permission. He has proved on record copy of Misal Hakiyat for Samvat 1984-85, Ex.-PA, copy of jamabandi for the year 1973-74, Ex.-PB and copy of Misal Hakiyat for the year 1988-89, Ex.-PC. He has categorically stated in his examination-in-chief that neither his father nor his ancestors have dedicated the temple or Talaab to the general public at large. No enquiries were made from them at the time of making corrections during settlement. He has admitted in his cross-examination that his father has appeared before the Naib Tehsildar, Settlement on 29.09.1975. 11. PW-2, Krishan Kumar has corroborated the statement of PW-1. According to him, the temple was owned by the plaintiff. He performs the religious ceremonies and also undertakes the necessary repairs of the temple. He has admitted in his cross-examination that his father has appeared before the Naib Tehsildar, Settlement on 29.09.1975. 11. PW-2, Krishan Kumar has corroborated the statement of PW-1. According to him, the temple was owned by the plaintiff. He performs the religious ceremonies and also undertakes the necessary repairs of the temple. The people use the water with the permission of plaintiff. He has denied the suggestion that during Navratras, a fair is held in the temple. 12. DW-1, Brij Bhushan has deposed that the temple is in existence for the last 150-200 years. It was constructed by the Hindus of Nahan town. The entire town worships at this place. There was no restriction and they do not seek any permission to go to the temple. There is no restriction for using the water from the pond. In his cross-examination, he has admitted that there is no record to suggest that the temple was constructed 150-200 years back, but they were hearing about the temple from their ancestors. He has denied the suggestion that the temple and pond belongs to the plaintiffs. However, volunteered that the ownership could be due to revenue papers. 13. DW-2, Mani Ram has deposed that the temple is at a distance of 4 kms. from his village. The temple is opened for 24 hours. DW-3, Sh. Som Parkash has deposed that the temple was constructed before their birth. The residents of town worships in the temple. He did not know that the temple belongs to Mansha Ram. 14. Now, the Court will advert to the revenue entries. According to Misal Hakiyat for Samvat 1984-85, Ex.-PA, plaintiff Mansha Ram and other co-owners were shown to be in possession of the suit land. According to jamabandi for the year 1973-74, Ex.-PB, plaintiff Mansha Ram figures in the column of ownership and is shown to be in possession of the suit land. The mischief appears to have been committed in the Misal Hakiyat for the year 1988-89, Ex.-PC, wherein the land comprised in Khasra No. 581/526 (new No. 1456) came to be recorded in the possession of ‘Rafai Aam’ and the land comprised in Khasra No. 578/525 (new numbers 1454 and 1455) in the possession of ‘Ahalai Hannod’. These revenue entries have been changed/altered on the basis of order, dated 29.09.1975. These revenue entries have been changed/altered on the basis of order, dated 29.09.1975. The Naib Tehsildar has not conducted any enquiry through the Panchayat or any agency prescribed by the Financial Commissioner or by summary inquiry while passing the order, dated 29.09.1975, Ex. D-2. The learned Additional District Judge, Sirmaur District at Nahan, H.P. has reproduced the letter in paragraph No. 18 of the judgment. It is evident from the text of this letter that he has not conducted the enquiry as per Section 37 of the Himachal Pradesh Land Revenue Act and has made his own observations. There is no reference of Khasra Nos. 1454 and 1455 (old No. 578/525) in the order, dated 29.09.1975. 15. In the written statement, it was stated that the temple was constructed by the ancestors of defendants and other devotees of the Mata Bala Sundari. However, in his statement before the Court, DW-1, Brij Mohan did not depose that the temple was constructed by the ancestors of defendants with the cooperation of other devotees of Nahan town. Neither DW-2, Mani Ram nor DW-3, Som Parkash have deposed that the temple was constructed by the ancestors of the defendants. 16. Mr. K.S. Kanwar, learned counsel for the appellants has also argued that the suit was barred by limitation. The learned Senior Sub Judge, Sirmaur District at Nahan, H.P. has framed issue No. 9 on the point of limitation. However, the same was not pressed by the appellants before the learned trial Court. 17. PW-1, Puran Chand is the son of Mansha Ram. It has come in his statement that he was well conversant with the facts of the case and his father was 90 years old and was not physically fit. Now, in Misal Hakiyat for Samvat 1984-85, Ex.-PA, the name of the plaintiff Mansha Ram and other co-owners were recorded to be in possession of the suit land as owners. However, in subsequent jamabandi for the year 1973-74, Ex.-PB, the name of Shri Mansha Ram alone figured in the column of ownership and in possession of the suit land. 18. Now, as far as substantial question No. 1 is concerned, the defendants have not raised this objection before the learned trial Court and no issue was framed to this effect by the learned trial Court. The learned Courts below have correctly appreciated the oral as well as documentary evidence. 18. Now, as far as substantial question No. 1 is concerned, the defendants have not raised this objection before the learned trial Court and no issue was framed to this effect by the learned trial Court. The learned Courts below have correctly appreciated the oral as well as documentary evidence. Since the order passed by the Naib Tehsildar was without authority of law, the Civil Court has the jurisdiction to decide the lis. 19. It has come in the statements of PW-1 and PW-2 that the worships in the temple and the use of water from the pond is not permissible in nature. Thus, the temple and the pond have the necessary ingredients of private character. Consequently, there is no substantial question of law involved in this Regular Second Appeal. 20. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs. gone through the judgments and record carefully interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence.