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2013 DIGILAW 647 (HP)

Paras Ram v. Sita Ram

2013-07-05

KULDIP SINGH

body2013
Judgment : KULDIP SINGH, J. - 1. The plaintiffs having lost in both the Courts below have assailed judgment, decree dated 14.10.2004, passed by learned District Judge in Civil Appeal No.24 of 2002, affirming judgment, decree dated 24.11.2001 passed by learned Sub Judge Ist Class, Barsar, District Hamirpur in Civil Suit No. RBT 207/98/95. 2. The facts in brief are that appellants had filed a suit for permanent prohibitory injunction against respondents regarding land comprised in khasra Nos. 215, 232, 487, 530, 573 and 575, measuring 8 kanals 14 marlas vide jamabandi for the years 1993- 1994, situated in Tikka Loharli, Tappa Dhatwal, Tehsil Barsar ( for short suit land). The pleaded case of the appellants is that in the jamabandi 1993-1994, they have been shown mortgagees with possession, earlier predecessors-in-interest of appellants were mortgagees with possession. As per appellants, the suit land was mortgaged with possession vide mutation No.257 dated 26.5.1895 by Nihalu in favour of Chaudhary half share and Gurmukh, Ganesha half share. The owners vide mutation No.67 dated 4.2.1924 sold the suit land and other land in favour of Sibu, Chuhru, Birju, Gaddi, Munshi and Kanshi predecessors-in-interest of respondents. Thus, respondents became mortgagors. It has been stated that appellants are successors-in- interest of mortgagees namely Ganesha and Gurmukh and are in continuous possession of the suit land as per their shares since the creation of mortgage. The suit land has not been redeemed by respondents or their predecessors-in-interest. The respondents have lost title to the suit land after a lapse of 30 years from the date of original mortgage. The respondents now have no right to redeem the land. The respondents now ceased to be the owners of the suit land. The appellants during consolidation were found in possession over the suit land. The respondents separated their khata, the appellants were found in possession during settlement. 3. The suit was contested by respondents by filing joint written statement in which several preliminary objections, such as cause of action, maintainability etc. have been taken. It has been denied that the appellants are owners. The revenue entry recorded during consolidation is wrong. The suit is not maintainable in view of another suit Arjun Singh vs. Sukh Ram. On merits, it has been stated that respondents are in possession. The appellants or their predecessors were never mortgagees. have been taken. It has been denied that the appellants are owners. The revenue entry recorded during consolidation is wrong. The suit is not maintainable in view of another suit Arjun Singh vs. Sukh Ram. On merits, it has been stated that respondents are in possession. The appellants or their predecessors were never mortgagees. They were mortgagors and due to lapse of time the respondents have become owners of the suit land. The suit land was mortgaged with respondents. The sale in favour of respondents of the suit land as alleged by appellants has been denied. It has been pleaded that respondents are continuing in possession and have become owners by lapse of time. The predecessors-in-interest of appellants were mortgagors. 4. On the pleadings of the parties, the following issues were framed :- (i) Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction as prayed for? OPP (ii) Whether the plaintiffs have no cause of action? OPD (iii) Whether the suit is not maintainable in the present form? OPD (iv) Whether the suit is liable to be stayed u/s 10 CPC as alleged? OPD (v) Whether the defendants are in possession of the suit land as mortgagees as alleged, if so, its effect? OPD (vi) Relief. The issue No.1 was answered in negative, issues No. 2,3,5 were answered in affirmative. Issue No.4 was not pressed. The learned trial Court dismissed the suit on 24.11.2001. The learned District Judge dismissed the appeal on 14.10.2004, hence second appeal which has been admitted on following substantial question of law: - Whether the two Courts below have erred in disbelieving the plea of the appellants/plaintiffs that they are the mortgagees and the respondents/defendants are the mortgagors of the suit property, in spite of the entries to this effect being there in the Jamabandis to which presumption of truth attaches, on the ground that the mutation order of creation of mortgage in favour of the appellants/plaintiffs and another mutation order regarding transfer of mortgagors' right by the original mortgagors in favour of the respondent/defendants, have not been produced? I have heard learned counsel for the appellants and perused the records; none appeared on behalf of the respondents. The learned counsel for the appellants has submitted that the two Courts below have misconstrued, misinterpreted the Jamabandies Ex.P-1 and Ex.P-2 in which appellants have been recorded mortgagees in possession of the suit land. I have heard learned counsel for the appellants and perused the records; none appeared on behalf of the respondents. The learned counsel for the appellants has submitted that the two Courts below have misconstrued, misinterpreted the Jamabandies Ex.P-1 and Ex.P-2 in which appellants have been recorded mortgagees in possession of the suit land. The presumption of truth is attached to the jamabandies which has not been rebutted by other side. The impugned judgment, decree are not sustainable. 5. In Ex.P-1 jamabandi for the year 1990-91 Smt. Chando, Sita Ram etc. are recorded owners whereas Paras Ram, Sambu Ram etc. are recorded as mortgagees. In the column of possession, mortgagees are recorded in possession of the suit land. This entry has been repeated in Ex.P-2 jamabandi for the year 1993-94. The respondents have projected the case that they are the mortgagees with possession and appellants are mortgagors. In the plaint, the appellants have pleaded that suit land was mortgaged with possession vide mutation No.257 dated 26.5.1895 by Nihalu in favour of Chaudhary, Gurmukh and Ganesha. The original owners vide mutation No.67 dated 4.2.1924 sold the suit land and other land in favour of Sibhu, Chuhru sons of Gurmukh and Birju, Gaddi, Munshi, Kanshi. It has been pleaded that appellants are successors-in- interest of original mortgagees namely Ganesha and Gurmukh. The appellants thus have pleaded that they are mortgagees on the suit land. This assertion of the appellants has been denied by the respondents. 6. PW -1 Shambu Ram has stated that Sita Ram, Chando Devi etc. were earlier mortgagees and they had purchased this land in the years 1923. PW-3 Gulabu Ram has also admitted possession of Sita Ram but later on said that possession is of Paras Ram. The appellants have put forward the case that they are the mortgagees on the suit land. They have pleaded creation of mortgage v mutation ide No.257 dated 26.3.1895 but no such mutation has been placed on record. The appellants have also not placed on record mutation No.67 dated 4.2.1924 vide which the original owners sold the suit land. The presumption of truth attached to jamabandi has been rebutted by the appellants themselves by admitting respondents as mortgagees over the suit land. The appellants have not proved how they came in possession over suit land once respondents were admitted to be mortgagees by them over the suit land. The presumption of truth attached to jamabandi has been rebutted by the appellants themselves by admitting respondents as mortgagees over the suit land. The appellants have not proved how they came in possession over suit land once respondents were admitted to be mortgagees by them over the suit land. The suit is for permanent prohibitory injunction. The possession of respondents over suit land has been proved. In these circumstances, appellants are not entitled to decree of permanent prohibitory injunction. The two Courts below have rightly appreciated the material on record. The view taken by the two Courts below is in consonance with the evidence. Both oral and documentary evidence has been considered and only thereafter findings have been recorded in favour of the respondents. It cannot be said that findings recorded by two Courts below are perverse. In second appeal re-appreciation of evidence is not possible. The scope of second appeal is limited. In the facts and circumstances of the case no fault can be found with the impugned judgment, decree. The substantial question of law noticed above is decided against the appellants. 7. No other point was urged. 8. In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs.