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2013 DIGILAW 672 (HP)

Zalam Singh v. Ganga Ram

2013-07-18

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree, dated 23.04.2009, passed by the learned Additional District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No. 12-N/13 of 2003. 2. Key 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 declaration against the respondents-defendants (hereinafter referred to as the defendants for the sake of convenience). The case set up by the plaintiffs was that the suit land was owned and possessed by them since 26.01.1966, on which date the plaintiff No. 1, Shri Zalam Singh and his late brother Chananu paid Rs.2500/- as sale consideration to the predecessors-in-interest of defendants, namely, Mani Ram and Moti Ram, who delivered possession as owners to plaintiff No. 1 and his late brother Chanandu. They were coming in continuous possession of the same. They have been recorded in the column of cultivation as "davedar mustriyan" and the names of the defendants in the column of ownership are illegal and contrary to the facts. They have also set up the plea of adverse possession. According to them, they have spent a sum of Rs.11,000/- towards development on the suit land. 3. The suit was contested by the defendants. They have denied that the suit land was sold to plaintiff No. 1 or his deceased brother Chananu by the predecessors of the defendants. According to them, Mani Ram and Nandru were the predecessors of defendants and they were owners of the suit land and they have never sold the suit land to plaintiff No. 1 or his brother on 26.01.1966. It is denied that the possession of the suit land was delivered to plaintiff No. 1 and his brother by the predecessors of the defendants. It is denied that the possession of the suit land was delivered to plaintiff No. 1 and his brother by the predecessors of the defendants. It is stated that Mani Ram and Nandru were in possession of the suit land as owners and in the year 1960, they gave the suit land to one Mina, son of Shri Rupu as licencee for cultivation with the condition that whenever they needed the suit land, said Mina would hand over the vacant possession of the suit land to them and Nandru before creating the licence had already mortgaged the suit land to the extent of his half share for a consideration of Rs.200/- in favour of the State of H.P., which was redeemed in the year 1965. It is further averred that Mina, the licensee was an old man and could not cultivate land properly. Therefore, he himself gave up the possession of the suit land in favour of Mani Ram in the year 1966 and thereafter, the plaintiff No. 1 and his brother approached the defendants and their father Mani Ram for taking the suit land for cultivation as licencee with the condition to hand over the vacant possession of the suit land to them as and when they will demand. Thereafter, the defendants and Mani Ram in June, 1966 gave the suit land on the above conditions to plaintiff No. 1 and his brother as licencee. The revenue entries showing the plaintiff No. 1 and his brother as claimant/purchaser regarding the suit land were stated to be incorrect. It is denied that the plaintiffs have become owners of the suit land by way of adverse possession. 4. The defendants have also filed a Counter Claim seeking decree of possession of the suit land on the basis of the title. According to them, they were in possession of the suit land and on the request of plaintiff No. 1 and his brother, the land was given for cultivation as licencee. The defendants have asked the plaintiffs to handover the possession in September, 1998, but they refused. Thereafter, a notice was issued and their tenancy was terminated. 5. According to them, they were in possession of the suit land and on the request of plaintiff No. 1 and his brother, the land was given for cultivation as licencee. The defendants have asked the plaintiffs to handover the possession in September, 1998, but they refused. Thereafter, a notice was issued and their tenancy was terminated. 5. The plaintiffs have also filed written statement to the Counter Claim filed by the defendants, stating therein that the plaintiffs were in continuous possession of the suit land since 26.01.1966 on account of oral sale and the sale price of Rs.2500/- paid by the plaintiff Zalam Singh and his brother Chananu to Moti Ram and Mani Ram, the predecessor-in-interest of the defendants and they have been recorded in possession as Davedar Mustriyan. 6. The replication was filed. Learned Sub Judge 1st Class, Court No. II, Paonta Sahib, District Sirmaur, H.P. framed the issues on 04.05.2001. He decreed the suit on 28.01.2003. 7. The defendants preferred an appeal before the learned Additional District Judge, Sirmaur District at Nahan, H.P. The same was allowed on 23.04.2009. The judgment and decree passed by the learned trial Court was set aside and the counter claim filed by the learned defendants was decreed and the decree for possession on the basis of title of the suit land was passed in favour of the defendants and against the plaintiffs. Hence this Regular Second Appeal. 8. This Regular Second Appeal was admitted on the following substantial questions of law on 22.07.2009: "(i) Whether the presumption of truth is attached to the long standing revenue entries of "Davedar Mustriyan" and "Batsvar Bay" recorded in the Jamabandis 1974-75, Ex. P-1, 1969-70 Ex. P2 in favour of appellants stands duly rebutted? (ii) Whether the learned first Appellate Court has rightly disbelieved the plea of adverse possession, which is otherwise duly proved even by the witnesses of defendants? (iii) Whether the learned first Appellate Court has misread, misinterpreted and misconstrued the statement of PW-1 to conclude that entry of Davedar Mustriyan and Batsvar Bay cannot be recorded in the revenue records? (iv) Whether the learned first Appellate Court has misread, misinterpreted, misconstrued the oral as well as documentary evidence on record and the view taken by the first Appellate Court is not possible? 9. Mr. (iv) Whether the learned first Appellate Court has misread, misinterpreted, misconstrued the oral as well as documentary evidence on record and the view taken by the first Appellate Court is not possible? 9. Mr. Bimal Gupta, learned counsel for the appellant has vehemently argued that that the learned 1st Appellate Court could not ignore the Jamabandi for the year 1974-75, Ex. P1 and Jamabandi for the year 1969-70 Ex. P2. He then contended that the plaintiffs have duly proved the plea of adverse possession. He finally contended that the learned 1st Appellate Court has misconstrued the oral as well as documentary evidence. 10. Mr. Rajnish K. Lall, learned vice counsel for the respondents has supported the judgment and decree passed by the 1st Appellate Court. 11. I have heard the learned counsel for the parties and gone through the records carefully. 12. Since all 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. 13. The plaintiffs have placed on record Ex. P1, copy of Jamabandi for the year 1974-75, Ex. P2, copy of Jamabandi for the year 1969-70, Ex. P3, copy of Jamabandi for the year 1964- 65, Ex. P4, copy of Jamabandi for the year 1960-61, Ex. P5, copy of Jamabandi for the year 1956-57, Ex. P6, copy of Jamabandi for the year 1994-95 and Ex. PW3/A, certified copy of rapat No. 95, dated 15.11.1966. The defendants have placed on record Ex. DW3/A, copy of application under Order 39 Rule 1 and 2 of the Code of Civil Procedure and Ex. DX, copy of stay order, dated 07.01.1999. The plaintiffs have also placed on record Ex.-PA, copy of judgment, dated 02.11.2000, Mark-A, birth certificate of Sukhram, Ex. PB, copy of Jamabandi for the year 1999-2000 and Ex. PC, Nakal Sajra Nasb Malkan. 14. Plaintiff No. 1, Zalam Singh, has appeared in the witness box as PW-1. According to him, the suit land was sold by Mani Ram and Nandru about 35-36 years back for a sale consideration of Rs.2500. At that time, the suit land was "banjar". It was made cultivable by him. He has planted various fruit bearing plants over the suit land, but the mutation was not attested in their favour. According to him, the suit land was sold by Mani Ram and Nandru about 35-36 years back for a sale consideration of Rs.2500. At that time, the suit land was "banjar". It was made cultivable by him. He has planted various fruit bearing plants over the suit land, but the mutation was not attested in their favour. He also deposed that thereafter Mani Ram and Nandru became ill and after their death, the defendants were approached by him for getting the mutation attested regarding the sale, however, they refused to get the mutation attested. He has paid the entire sale consideration to Mani Ram and Nandru in the presence of Ghassi Ram. According to him, the negotiations were held in the house of Nandru and Mani Ram. However, he did not remember the date, month and year, when such negotiations took place. According to him, it was during winter about 35-37 years back. According to him, no document in writing was executed at the time of sale nor any receipt was obtained by him from Mani Ram and Nandru regarding payment of the sale consideration. According to him, the payment was made in the morning at about 8:00 a.m. 15. PW-2, Ghassi Ram, has deposed that in his presence the suit land was sold by Mani Ram and Nandru to Zalam Singh and Chanandu for a consideration of Rs.2500/- about 35-36 years back. The sale consideration was paid to Mani Ram and Nandru in his presence. According to him, he was called by Zalam Singh and at that time, Mani Ram and Nandru were hale and hearty. According to him, the negotiation took place in the noon. However, as per the statement of PW-1, the negotiation took place at 8:00 a.m. He did not know about the month, year or the date when such negotiation took place. He only stated that negotiation took place during winter season. He also stated that no receipt regarding payment of the consideration amount was obtained by Zalam Singh from Mani Ram and Nandru. 16. PW-3, Gulab Singh, has been examined to prove rapat Ex. PW3/A. It cannot be inferred from Ex. PW3/A that any oral sale of the suit land has been made by Mani Ram and Nandru in favour of the plaintiff No. 1 and his brother Chanandu. 17. 16. PW-3, Gulab Singh, has been examined to prove rapat Ex. PW3/A. It cannot be inferred from Ex. PW3/A that any oral sale of the suit land has been made by Mani Ram and Nandru in favour of the plaintiff No. 1 and his brother Chanandu. 17. According to DW-1, the suit land was owned by Mani Ram and Nandru, who were their predecessors and they have given the suit land to Mina for the purpose of cultivation, who left the possession of the suit land in favour of Mani Ram and Nandru during May, 1966, since he has become old. The land was given to Zalam Singh and Chananu during June, 1966 for the purpose of cultivation in the presence of Chet Ram and Sukh Ram. No improvements were made over the suit land by Zalam Singh and Chananu and no plants were planted by them on the suit land. He has denied specifically that the suit land was sold by his predecessors Mani Ram and Nandru to plaintiff No. 1 and his brother Chananu for a consideration of Rs.2500/- in the year 1966. 18. According to DW-2, Sukh Ram, he has seen the suit land and he knew the parties. According to him, previously the suit land was in possession of Mina Ram as licencee and they have never planted any plants over the suit land. 19. DW-3 is Sh. Rattan Singh Chaudhary, Advocate. He has appeared on behalf of the plaintiffs and on their instructions has drafted an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. He has admitted in cross-examination that with Ex. DW2/A, there is no affidavit of Jalam Singh and original application was attested by Anil Kumar, Notary. He also admitted that in the main suit, he has written the date of oral sale as 26.01.1950 and after that he moved an application under Order 6 Rule 17 of the Code of Civil Procedure. 20. According to averments contained in the plaint, the land was sold to the plaintiffs by Mani Ram and Moti Ram. Who is Moti Ram has not been explained. There is no reference of Moti Ram in the revenue record. It is not stated in the plaint that the land was sold in the presence of Ghassi Ram. 20. According to averments contained in the plaint, the land was sold to the plaintiffs by Mani Ram and Moti Ram. Who is Moti Ram has not been explained. There is no reference of Moti Ram in the revenue record. It is not stated in the plaint that the land was sold in the presence of Ghassi Ram. In fact, Mani Ram and Nandru were owners of the suit land previously and after their death, the defendants became owners of the suit land. Moti Ram never inherited any land from Mani Ram and Nandru. 21. According to PW-1, as noticed above, negotiation took place at 8:00 a.m., but according to PW-2, the negotiation took place in the noon. Neither PW-1 nor PW-2 could give the exact date, month or year, on which the negotiation took place. 22. According to Jamabandi for the year 1956-57, Ex. P5, the suit land is recorded in the ownership and possession of Shri Mani Ram and Nandru, who were the predecessors of the defendants. As per the copy of Jamabandi for the year 1960-61 Ex. P4, Nandru and Mani Ram are recorded as owners, but Mina is recorded to be in possession of the suit land as a tenant. Similar entry has been recorded in the copy of Jamabandi for the year 1964-65 Ex. P3. According to the copy of Jamabandi for the year 1969-70 Ex. P2, Mani Ram is recorded to be the exclusive owner of the suit land, whereas the same is recorded to be in possession of Jalam Singh, plaintiff No. 1 and Chandnu, the predecessor of the other plaintiffs. A similar entry has been recorded in the copy of Jamabandi for the year 1974-75, Ex. P1, in which the defendants are recorded to be owners of the suit land, but the suit land is recorded to be in possession of the plaintiff No. 1 and Chananu, the predecessors of the other plaintiffs. 23. The plaintiffs have not led any tangible evidence how these entries were changed. There is a detailed procedure in which the entries can be changed in the Jamabandis. The Patwari has to make corrections with pencil and thereafter same are to be approved by Kanungo, Naib Tehsildar and Tehsildar. 24. The factum of oral sale was never brought to the notice of Jalam Singh or his brother Chananu. There is a detailed procedure in which the entries can be changed in the Jamabandis. The Patwari has to make corrections with pencil and thereafter same are to be approved by Kanungo, Naib Tehsildar and Tehsildar. 24. The factum of oral sale was never brought to the notice of Jalam Singh or his brother Chananu. The subsequent entries made in favour of the plaintiffs have been rebutted by the defendants. Case of the plaintiff is that they have made the land cultivable. However, in the previous entries, the land has been shown as Obar Abbal. There is no dispute that there could be oral sale, but the same was required to be proved by leading tangible evidence. The plaintiffs have failed to lead any evidence to prove the oral sale made by Mani Ram and Nandru in favour of the plaintiff No. 1 and his brother Chananu. Neither it has come in the statement of PW-1, Jalam Singh nor in the statement of PW-3, Gulab Singh that the possession was handed over at the time of alleged sale deed. 25. The plea raised by the plaintiffs that the land was sold to them on 26.01.1966, is also belied on the basis of cross-examination of plaintiff No. 1. He has admitted that the suit land was given to him during the month of June by Mani Ram and Nandru for the purpose of cultivation of maize crop. PW-2, Ghassi Ram has also deposed that PW-1 has sown maize crop for the first time over the suit land. It supports the plea of defendants that the land was given to Zalam Singh and Chananu during June, 1966 for the purpose of cultivating the maize crop. It demolishes the plea of plaintiff that they were in possession of the suit land on the basis of oral sale deed, dated 26.01.1966. The plaintiffs have also failed to prove the plea of adverse possession. 26. All the ingredients of adverse possession are required to be pleaded and proved, which the plaintiffs have failed to do so. Their possession over the suit land was permissive and cannot be held adverse to the true owners. All the substantial questions of law are answered accordingly. 27. 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. Their possession over the suit land was permissive and cannot be held adverse to the true owners. All the substantial questions of law are answered accordingly. 27. 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.