Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 333 (HP)

Tara Devi v. Rama Devi

2013-04-22

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 28.2.2012 rendered by the learned Additional District Judge, Sirmaur District at Nahan in Civil Appeal No.10-N/13 of 2001. 2. "Key facts" necessary for the adjudication of this Regular Second Appeal are that respondent No.6- plaintiff (hereinafter referred to as plaintiff for convenience sake) filed a suit against appellants-defendants and respondents No.1 to 5 (hereinafter referred to as the "defendants" for possession by way of partition and prohibitory injunction. According to the plaintiff, suit property detailed in Khata Khatauni No. 204/361 to 364, Khasra Nos. 44, 45, 46 and 60 kitas 5 total measuring 20062.52 square meters situated in Muhal Dhabon, Nahan, District Sirmaur was owned and possessed by one Sh. Narain son of late Sh. Maghar. Narain was cultivating tenant of this land under the original owner and by virtue of mutation No. 531 dated 5.2.1967, proprietary rights were conferred upon him. He became absolute owner of the suit land. Deceased Narain had one son, namely, Jagan Nath predecessor-in-interest of Ram Ratti, Ram Gopal, Ayodhya Parshad and Asha Devi. Narain Singh had one daughter Smt. Yashoda Devi, predecessor-in-interest of the plaintiff Sh. Faqir Chand and proforma defendants, namely, Tilak Ram and Sankho Devi. Suit property was inherited by his son Jagan Nath, Ram Ratti widow and Yashodha Devi daughter in equal shares. Narain Singh died intestate. Jagan Nath and his sister Yashodha Devi, i.e. mother of plaintiff and proforma defendants inherited the same in equal shares after her death. Yashodha Devi was married to Sh. Ori Lal. However, she used to live with her father. Deceased Jagan Nath in active connivance with the revenue staff fraudulently and illegally procured the mutation of inheritance of late Sh. Narain Singh in his favour vide mutation No.615 dated 16.3.1969 to the exclusion of Yashodha Devi, plaintiff and proforma defendants. In the same manner mutation No. 122 dated 18.2.1970 qua the inheritance of property of late Smt. Ram Ratti was procured in his name and Smt. Yashodha Devi was excluded. The field revenue agency did not follow the rule and procedure as per the guidelines prescribed by the Financial Commissioner while attesting mutation Nos. 615 and 122 dated 16.3.1969 and 18.2.1970, respectively. It is in these circumstances, plaintiff filed the suit for permanent injunction against the defendants. 3. The field revenue agency did not follow the rule and procedure as per the guidelines prescribed by the Financial Commissioner while attesting mutation Nos. 615 and 122 dated 16.3.1969 and 18.2.1970, respectively. It is in these circumstances, plaintiff filed the suit for permanent injunction against the defendants. 3. Suit was contested by the deceased Jagan Nath and thereafter by his legal heirs. On merits, case of Jagan Nath was that Narain was not the owner in possession of the entire area as per plaint. However, it is admitted that deceased Narain was conferred with proprietary rights. He has emphatically denied that he inherited the estate of deceased Narain in equal shares with Yashodha Devi. He has denied that Ram Ratti was the grand-mother of the plaintiff and proforma defendants. He has supported the attestation of mutation in his favour. 4. Replication was filed by the plaintiff. Trial Court framed issues on 1.5.1995. Suit was decreed by the trial court vide judgment and decree dated 15.10.1999. Contesting defendants dissatisfied with the judgment and decree of the trial court preferred an appeal before the District Judge, Sirmaur District at Nahan. However, during the pendency of the appeal, deceased Jagan Nath preferred an application under Order 6, Rule 17 of the Code of Civil Procedure along with amended written statement seeking amendment of written statement. Learned District Judge allowed the application on 17.12.2000 and remanded the case for fresh trial after framing proper issues on the amended pleadings of the parties. Trial court framed additional issues, i.e. 7-B-B, 7-C, 7-D and 7-E. Trial Court decreed the suit on 10.5.2001. Predecessor-in-interest of defendant Jagan Nath filed an appeal before the learned Additional District Judge. He dismissed the appeal. Hence, the present Regular Second Appeal. 5. Mr. Rupinder Singh has vehemently argued that both the courts below have misconstrued and mis-appreciated the oral as well as documentary evidence. He has also argued that the suit was barred by limitation. He has further contended that Yashodha Devi has relinquished her share in favour of Jagan Nath. 6. Mr. Rama Kant Sharma has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the pleadings and records carefully. 8. Plaintiff has put reliance on the copy of entries of jamabandi/Missal Hakiat Ex.PA. 6. Mr. Rama Kant Sharma has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the pleadings and records carefully. 8. Plaintiff has put reliance on the copy of entries of jamabandi/Missal Hakiat Ex.PA. According to these entries, various Khasra numbers measuring 20062-52 square meters was shown in exclusive ownership and possession of deceased defendant Jagan Nath. He has placed on record copy of mutation No. 615 Ex.PB vide which mutation of inheritance of the property was attested in favour of Jagan Nath and his mother Ram Ratti. Plaintiff has also placed on record copy of mutation No. 531 Ex.PC vide which the proprietary rights of suit property comprised khasra Nos. 44, 45, 46 and 60/3 (old) were conferred upon Narain, predecessor-in-interest of the parties to suit. Plaintiff has challenged mutation Nos. 615 and 122 dated 16.3.1969 and 18.2.1970, respectively. 9. PW-1 Faqir Chand has deposed that Narain Singh was exclusive owner in possession of disputed property measuring 20062 square meters. His legal heirs were widow Ram Ratti, defendant Jagan Nath and his mother Smt. Yashodha Devi. The suit property came in possession of the defendant Jagan Nath and Ram Ratti as well as his mother Smt. Yashodha Devi. She used to reside in Muhalla Dhabon. She remained in possession of the suit property along with defendant No.1. His mother expired in the year 1982-83 and they were legally entitled to inherit the suit property to the extent of half share along with defendant No.1 Jagan Nath. The revenue entries showing Jagan Nath in exclusive ownership and possession were erroneous. These entries were obtained in collusion with the revenue agency. 10. PW-3 Bhagwati Parshad has supported the version of PW-1 Faqir Chand. According to him, after the death of Narain, his property was inherited by defendant Jagan Nath, daughter Yashodha Devi and widow Ram Ratti. 11. DW-3 Jagan Nath has deposed that after the death of his father, the entire property was inherited by him. Bandobast took place in Nahan city. However, neither plaintiff nor his predecessor-in-interest Smt. Yashodha Devi raised any objection qua the revenue entries of the suit land. Yashodha Devi was married to Sh. Ori Lal about 60 years back. She left her husband and never remained with him. Bandobast took place in Nahan city. However, neither plaintiff nor his predecessor-in-interest Smt. Yashodha Devi raised any objection qua the revenue entries of the suit land. Yashodha Devi was married to Sh. Ori Lal about 60 years back. She left her husband and never remained with him. He has admitted that the suit property was exclusively owned and possessed by Narain. His father remained alive for eight years after the proprietary rights were conferred upon him. His sister Yashodha Devi expired 8-9 years ago. She was his real sister. He was having cordial relations with his sister. He has also admitted that plaintiff and proforma defendants are sons and daughter of his sister Yashodha Devi and his real nephews and niece. He has further admitted in his cross-examination that at the time of attestation of mutation of inheritance of the suit property after the death of his father, he never disclosed to the Patwari that Smt. Yashodha Devi was also legal representative of his father. He has also deposed that had he disclosed this fact to the Patwari, the suit property would have also been co-inherited by his sister Smt. Yashodha Devi. He has also deposed that due to this omission, the name of Smt. Yashodha Devi could not be recorded in the revenue records. 12. DW-1 Gian Chand has admitted in his cross-examination that Smt. Yashodha Devi was daughter of Narain and she expired after the death of Narain. He has also deposed that Narain was having good relations with his daughter. Smt. Yashodha Devi used to reside with his father and brother Jagan Nath. He has also deposed in his cross-examination that after the death of Narain, his widow Ram Ratti, son Jagan Nath and daughter Smt. Yashodha were his legal representatives. However, since Yashodha Devi was married, she was not legally entitled to inherit the suit property. 13. DW-2 Ram Gopal is son of defendant Jagan Nath. He has admitted in his cross-examination that his grand-father Narain was having one widow Ram Ratti, son Jagan Nath and one daughter Smt. Yashodha Devi. According to him, after the death of Narain, suit property was inherited by his father deceased Jagan Nath only, but could not state under what circumstances the property of deceased Narain was not inherited by his widow Smt. Ram Ratti and daughter Smt. Yashodha. 14. According to him, after the death of Narain, suit property was inherited by his father deceased Jagan Nath only, but could not state under what circumstances the property of deceased Narain was not inherited by his widow Smt. Ram Ratti and daughter Smt. Yashodha. 14. What emerges from the evidence discussed herein above is that Smt. Yashodha Devi was real sister of DW-3 Jagan Nath, plaintiff and proforma defendants are her sons and daughter. The procedure prescribed under the law has not been followed at the time of attestation of mutations dated 16.3.1969 and 18.2.1970. DW-3 Jagan Nath has categorically admitted that he has not disclosed the fact that Smt. Yashodha Devi was daughter of Narain to the Patwari at the time of attestation of mutation. Narain was the sole tenant of the suit property. He was conferred proprietary rights on 5.2.1967. Plaintiff and proforma defendants being legal representatives of Smt. Yashodha Devi were legally entitled to inherit the suit property to the extent of half share along with defendant Jagan Nath. Defendant (Jagan Nath) could not prove that he was exclusive owner in possession of Khasra Nos. 775 and 776. Rather DW-3 has admitted that the entire suit property was under the tenancy of his father. 15. The courts below have rightly come to the conclusion that the suit was within limitation. Plaintiff has come to know about the revenue entries only in the month of April 1994. Defendant has not led any evidence to prove plea of adverse possession. DW-3 has only deposed that his possession was hostile, uninterrupted and to the knowledge of true owner. The courts below have rightly come to the conclusion that the proper court fee was affixed after taking into consideration the statement of DW-4 Ishwar Chand and after perusing Ex.DX and DY. 16. It is also duly proved on record that Yashodha Devi and Ram Ratti were legal representatives of Narain along with Jagan Nath. Names of all the legal representatives were required to be included in the mutation. The mutations were illegal since those were attested without ascertaining all the legal heirs/representatives. The plea raised by the defendant that Yashodha Devi acquiesced her rights is not supported by any tangible evidence. Names of all the legal representatives were required to be included in the mutation. The mutations were illegal since those were attested without ascertaining all the legal heirs/representatives. The plea raised by the defendant that Yashodha Devi acquiesced her rights is not supported by any tangible evidence. Fakir Chand son of deceased Yashodha Devi wife of Ori Lal was admitted in the school as per statement of PW-2 Anjala Parmar on the address of Mohalla Purbian Naia Bazar, Nahan. 17. Mr. Rupinder Singh has argued that no opportunity was given for producing DWs on 18.2.2001. Last opportunity was afforded to the defendant to produce his evidence on self responsibility on 23.2.2001. On 23.2.2001 one DW was examined and the remaining evidence was not produced. In these circumstances, evidence of defendant was closed. 18. It would also be apt at this stage to note that against the judgment and decree dated 10.5.2001, only Ram Gopal, Rama Devi, Poonam Devi, Suman Devi Ayodhya Prasad and Asha Devi have filed an appeal before the learned Additional District Judge on 2.7.2001. Present appellants-defendants, namely, Tara Devi, Sunil Kumar, Sanjeev Kumar and Prem Lata were added as respondents. In other words Tara Devi, Sunil Kumar, Sanjeev Kumar and Prem Lata have not challenged the judgment and decree passed by the trial court before the first appellate court. They have only filed the Regular Second Appeal against the judgment and decree dated 28.2.2012 passed by the learned Additional District Judge, Sirmaur. One of the defendants Ayodhya Prasad, who has assailed the judgment and decree of the trial court before the learned Additional District Judge has filed RSA No. 543/2012 against the judgment and decree dated 28.2.2012. Learned counsel appearing on behalf of Ayodhya Prasad has stated before the court that the matter has been compromised and in view of this the appeal was dismissed as withdrawn on 7.3.2013. 19. Accordingly, in view of the observations and discussions made herein above, there is no merit in the Regular Second Appeal and the same is dismissed. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.