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2012 DIGILAW 991 (HP)

Rattni Devi v. Pritam-respondent

2012-12-18

RAJIV SHARMA

body2012
JUDGMNET Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 13.12.2001, passed by the learned Additional District Judge (I), Kangra at Dharamshala, H.P. in Civil Appeal No. 42-N/2000. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellants-plaintiffs (hereinafter referred to as “the plaintiffs” for the sake of convenience), have filed a suit for possession of the land comprised in Khata No. 79, Khatauni No. 209, Khasra Nos. 92, 93, 103, plots 3, measuring 0-44-35, situated in Tika Kandi, Mauza Bhugnara, Tehsil Nurpur, District Kangra, H.P. According to the plaintiffs, the suit land is owned by them and it was in their possession prior to the settlement proceedings. However, during the settlement operation, the defendant alongwith his father, Amar Singh, who died 3-4 years back, without the knowledge and in the absence of the plaintiffs, during the last week of July, 1982, forcibly took the possession of the suit land. The plaintiffs requested the defendant to vacate the possession, but he did not agree. It is in these circumstances, the plaintiffs have filed the suit. 3. The suit was contested by the defendant. According to the defendant, earlier his father was in cultivation of the suit land and after his death, he came in possession of the suit land. According to him, Khasra No. 103 in the suit land was given to the plaintiffs in an application filed by them under the provisions of L.R.-V vide mutation No. 328, dated 26.03.1979, on the decision of the Land Reforms Officer, but the defendant never relinquished the possession of the land in favour of the plaintiffs. He also pleaded adverse possession. 4. Learned Sub Judge 1st Class (I), Nurpur, District Kangra, H.P. framed the issues on 16.08.1995. He decreed the suit on 01.02.2000. The defendant preferred an appeal before the learned Additional District Judge (I), Kangra at Dharamshala, H.P. He allowed the same on 13.12.2001 and the judgment and decree of the learned Sub Judge 1st Class (I), Nurpur, District Kangra, H.P., dated 01.02.2000, was set aside. Hence, this Regular Second Appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law on 11.04.2002: “1. Hence, this Regular Second Appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law on 11.04.2002: “1. Whether the Lower Appellate Court has acted in an erroneous and perverse fashion in dismissing the suit of the plaintiffs-appellants after having decided that the defendant-respondent failed to prove his title to the suit property having acquired by adverse possession? 2. Whether the Lower Appellate Court has mis-understood the provisions of H.P. Tenancy and Land Reforms Act when it was admitted by the defendant that the land in suit was resumed by the plaintiffs-appellants by the order of the competent authority? Merely the fact that the defendant claimed to continue to be in possession could have disentitled the plaintiffs-appellants to recover possession from the defendant who had no title better than the plaintiffs-appellants? 6. Mr. Bhupender Gupta, learned Senior Advocate for the appellants has supported the judgment and decree, dated 01.02.2000, passed by the learned Sub Judge 1st Class (I), Nurpur, District Kangra, H.P. 7. Mr. Rajnish K. Lall, learned vice counsel for the respondent has supported the judgment and decree, dated 31.12.2001, passed by the learned First Appellate Court. 8. I have heard the learned counsel for the parties and gone through the pleadings and records carefully. 9. 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. 10. According to PW-1, Umesh Kumar, the disputed land was 12 ¼ Kanal. They were owners of the same. Initially, the land was possessed by them and now it was in possession of Shri Pritam. During the settlement, the defendant forcibly encroached upon the land. The plaintiffs got this land after paying the compensation under the provisions of L.R.-V. According to him, the father of the defendant was the tenant of this land, but later on, the mutation was attested in their favour and possession was also delivered to them. Sh. Amar Singh died in the year 1989-90, but during the settlement, the defendant forcibly encroached upon the suit land. 11. PW-2, Onkar Singh has deposed that the plaintiffs are the owners of the suit land. He got this land for cultivation. In the partition, Pritam and Umesh got this land. Previously, Amar Singh used to cultivate this land as tenant. Amar Singh died in the year 1989-90, but during the settlement, the defendant forcibly encroached upon the suit land. 11. PW-2, Onkar Singh has deposed that the plaintiffs are the owners of the suit land. He got this land for cultivation. In the partition, Pritam and Umesh got this land. Previously, Amar Singh used to cultivate this land as tenant. He got the land of his share and the remaining land was given to Umesh. 12. PW-3, Kanshi Ram has testified that he is Lambardar of the village. He has seen the suit land and the plaintiffs were owners of the same. Previously, the father of the defendant was the tenant, but Umesh got this land under the provisions of L.R.-V and the father of Umesh got the land and the remaining land was given to the father of Prittam. The mutation was also attested in favour of Umesh. The possession was also delivered by the father of Pritam to the father of Umesh, but later on, Prittam forcibly encroached upon the land in the year 1981-82, 13. The defendant has appeared as DW-1. According to him, they were in possession of the suit land since 1958-59. Previously, his father was in possession of the suit land and now he is in possession of the same. According to him, the plaintiffs have never remained in possession of the suit land. In his cross-examination, he has admitted that the plaintiffs were owners of the suit land. He has admitted that in L.R.-V, they got some land and some land was given to the owners. DW-2, Saraf Chand, has stated that the defendant is in possession of the suit land for the last 30-35 years. 14. According to the written statement filed by the defendant, the land bearing Khasra No. 103 in the suit, was given to the plaintiffs on the basis of an application filed by them as per L.R.-V vide mutation No. 328, dated 26.03.1979, on the decision of the Land Reforms Officer, however, the defendant never relinquished the possession of this land in favour of the plaintiffs and he is in continuous possession of the same since 1989 and prior to this, it was in possession of the father of the defendant. The defendant and his father had continuously been in possession of the suit land as owner and the plaintiff has got no concern with this land. The defendant and his father had continuously been in possession of the suit land as owner and the plaintiff has got no concern with this land. The defendant has also pleaded adverse possession for more than 12 years continuously, openly and without interruption as owner to the knowledge of the plaintiffs. According to him, the tenancy rights have matured into ownership rights. The plaintiffs have placed on record the copies of Jamabandis for the year 198990, Ex. P-1, 1982-83, Ex. P-2, 1976-77, Ex. P-4, 1969-70, Ex. P-5, 1965-66, Ex. P-6. In the jamabandi for the year 1965-66, Ex. P-6, Amar Singh, the father of the defendant has been shown as tenant on payment of rent, i.e., Galla Battai. In jamabandi for the year 1969-70, the plaintiffs have been shown in self cultivation and ownership of Khasra Nos. 51, 52, 59 and 260 and Amar Singh, father of the defendant has been shown as tenant over Khasra Nos. 44,57 and 58. In the jamabandi for the year 1976-77, Ex.-P4, the plaintiffs have been shown in self cultivation and possession of the suit land, denoted by Khasra Nos. 51, 52, 260 and father of the defendant has been shown as tenant over Khasra Nos. 44, 57, 58 and 59. Khasra No. 59 has been shown for the first time in the jamabandi for the year 1976-77. 15. It has been admitted by the defendant that the suit land was given to the plaintiffs in an application filed by them under the provisions of LR-V and mutation No. 328 was also attested on 26.03.1979 on the basis of decision of the Land Reforms Officer, but the defendant never relinquished the possession of the land to the plaintiffs. According to him, he was continuously in possession of the suit land. Once the order has been passed by the competent authority under the provisions of H.P. Tenancy and Land Reforms Act, the defendant could not remain in possession of the suit land. The defendant has not led any tangible evidence to prove the adverse possession. It was necessary for the defendant to prove continuous, open and hostile possession over the suit land to the knowledge of plaintiffs. The suit land has been shown in self cultivation of the owners as per Ex.-P5, i.e., jamabandi for the year 1969-70 and Ex. P-4, jamabandi for the year 1976-77. It was necessary for the defendant to prove continuous, open and hostile possession over the suit land to the knowledge of plaintiffs. The suit land has been shown in self cultivation of the owners as per Ex.-P5, i.e., jamabandi for the year 1969-70 and Ex. P-4, jamabandi for the year 1976-77. Once the order has been passed by the Land Reforms Officer, as noticed above, on the basis of which the mutation was attested on 26.03.1979, the revenue record ought to have been changed, however, in jamabandi Ex. P2 for the year 1982-83, though the plaintiffs have been shown as owners in cultivation of Khasra Nos. 92, 93 and 103, but the name of Amar Singh has also been shown as tenant. The same entry has been repeated in jamabandi Ex. P-1 for the year 1989-90. The defendant cannot take advantage of these entries after the orders passed by the Land Reforms Officer. The learned 1st Appellate Court has mis-read and mis-construed the oral as well as documentary evidence. The learned first Appellate Court could not over look the admission made by the defendant that the suit land came in the share of the plaintiffs after the orders passed by the Land Reforms Officer. 16. Neither in Ex. P-1, copy of jamabandi for the year 1989-90 nor in Ex. P-2, copy of jamabandi for the year 1982-83, there is any entry of rent to establish the tenancy of Amar Singh or defendant. 17. Accordingly, in view of the observations and discussions made hereinabove, the Regular Second Appeal is allowed. the judgment and decree, dated 13.12.2001, passed by the learned Additional District Judge (I), Kangra at Dharamshala, H.P. is set aside and the judgment and decree, dated 01.02.2000, passed by the learned Sub Judge 1st Class (I), Nurpur, District Kangra, H.P. is restored. The pending application(s), if any, also stands disposed of. No costs.