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2014 DIGILAW 1079 (HP)

Shakti Singh v. Nasib Singh

2014-08-12

SURESHWAR THAKUR

body2014
JUDGMENT : - Sureshwar Thakur, J. The instant appeal is directed against the judgment and decree, rendered on 18.9.2002, in Civil Appeal No. 138 of 2000, by the learned District Judge, Una, District Una, H.P., whereby the learned First Appellate Court allowed the appeal, preferred by the appellant therein/respondent herein. 2. Brief facts of the case are that the plaintiffs/appellants instituted a suit for declaration to the effect that the land measuring 0-19-28 Hectares. Khweat No. 352 min Khatauni No. 844 Khasra No. Old 1609 and new 2347 to 2351 per Khatuani Bandobast for the year 1987-1988 situated in village Hamboli, Tehsil Amb, District Una has been coming in possession of the plaintiff/appellants as hissedars owners after death of one Garkha S/o Gurditta who was its owner and revenue records prepared under the orders of Land Reforms Officer, Amb, of 9.2.1988 are illegal wrong and for injunction restraining defendant from interfering in any manner in the suit land and in the alternative for possession and injunction restraining defendant from cutting tress, grass or raising construction. 3. The respondent/defendant contested the suit and filed written-statement, by raising preliminary objection of maintainability, limitation, estoppel, non-joinder, valuation and locus-standi. It was claimed that the suit land was recorded in possession of the defendant’s predecessor/ancestor as non-occupancy tenant on payment of revenue cesses. After coming into operation of the H.P Tenancy and Land Reforms Act he has become owner. Garka was never in possession nor defendant relinquished possession in favour of the plaintiffs/appellants. He further pleaded that in case the possession of the defendant is found as sub tenant even then the defendant, is, coming in possession of the suit land since ancestors, the possession of the defendant is peaceful and open to the knowledge of the plaintiff. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties at contest:- 1. Whether the plaintiffs are in possession of the suit land as his hisedari owners? OPP 2. Whether entry of possession qua suit land in favour of defendant is wrong, as alleged? OPP 3. Whether plaintiffs are entitled to the relief of injunction? OPP 4 Whether suit is within time? OPP 5. Whether suit is not maintainable in the present form? OPP 6. Whether act and conduct of plaintiffs is bar to the suit? OPD 7. Whether suit is bad for non-joinder of necessary parties? OPD. 8. OPP 3. Whether plaintiffs are entitled to the relief of injunction? OPP 4 Whether suit is within time? OPP 5. Whether suit is not maintainable in the present form? OPP 6. Whether act and conduct of plaintiffs is bar to the suit? OPD 7. Whether suit is bad for non-joinder of necessary parties? OPD. 8. Whether suit is not properly valued for the purposes of court fee and jurisdiction? OPD. 9. Whether plaintiffs have no locus-standi to file the suit? OPD 10. Whether defendant was earlier sub-non-occupancy tenant on payment of rent and has now become owner under H.P Tenancy and land Reforms Act? OPD. 11. If issue No. 10 is not proved in affirmative, whether the defendant has become owner of the suit land by adverse possession? OPD 12. Relief. 5. On the perusal of the evidence, adduced before the learned trial Court, the learned trial Court partly decreed the suit of the plaintiff for possession of the suit land, whereas plaintiffs’ prayer for injunction was declined. In appeal, preferred before the first appellate Court, against the judgment and decree of the learned trial Court, by the defendant/appellant, the learned first appellate Court dismissed the suit of the plaintiffs. 6. Now the plaintiffs/appellants have instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned First Appellate Court, in its impugned judgment and decree. When the appeal came up for admission on 12.3.2003, this Court, admitted the appeal instituted by the plaintiffs/appellants against the judgment and decree, rendered by the learned First Appellate Court, on the following substantial question of law:- 1. Whether the tenant recorded during the year 1972-1973 is entitled to become owner by virtue of the provisions of H.P Tenancy and Land Reforms Act, 1972, if so, its effect? 2. Whether the entry of possession recorded by the LRO without affording an opportunity of being heard in the year 1988 is null and void and inoperative in the eyes of law? Substantial Questions of law No. 1 and 2. 7. Ex. P-2 which, is, the post settlement Jamabandi for the year 1987-88, qua the suit land displays the factum of the suit property being recorded in possession of defendant Nasib Singh. The said fact, is, corroborated by Ex. D-3 Khasra Girdawari prepared by the revenue officials, qua the suit land pertaining for the period commencing from April 1988-1991. Moreover Ex. Ex. P-2 which, is, the post settlement Jamabandi for the year 1987-88, qua the suit land displays the factum of the suit property being recorded in possession of defendant Nasib Singh. The said fact, is, corroborated by Ex. D-3 Khasra Girdawari prepared by the revenue officials, qua the suit land pertaining for the period commencing from April 1988-1991. Moreover Ex. P-3 comprises the order of L.R.O (Settlement) displaying the factum of the suit land to be recorded in possession of defendant Nasib Singh. Even though, the counsel for the appellant concerts to rip apart the veracity of the entries recorded in the revenue record, displaying the defendant, to be in possession of the suit property, on the score of, it, having come to be recorded, at, the instance of Settlement staff without the participation of the appellants, in, the proceedings preceding to the recording of the said entry, as, also the order of LRO (Settlement) comprised, in, Ex. D-3 is compatibly subjected to an attack, by, the counsel for the appellant on the score of, it, too, being pervaded with vitiation. However, the said contention, is, repulsed by the factum of:- (a) The plaintiffs having in the alternative claimed the relief for possession of the suit property against the defendant, is perse connotative and significatory of the plaintiffs not possessing the suit property. In sequel thereto, with the plaintiffs being out of possession at the time of the recording of entries, in Ex. P-2, P-3 and D-3, whereby possession of the suit land was vested in the defendant, hence, they are in consonance with the physical possession of the defendant over and upon the suit land, at, the time contemporaneous to the recording of such entries. Obviously then, when the recorded fact of the defendant holding possession of the suit property, is, in consonance with his physical possession of the suit land, the recording, in, the aforesaid Exhibits, the fact of the defendants being, in, possession of the suit property, cannot be faulted. Moreso, when the plaintiffs have neither concerted rather have omitted to place on record any material demonstrative of the fact that at the time of rendition of Ex. Moreso, when the plaintiffs have neither concerted rather have omitted to place on record any material demonstrative of the fact that at the time of rendition of Ex. P-3 or of the recording of entry of possession of the defendant over the suit land, they, had not participated in the apposite proceedings, hence, with the proceedings preceding the recording of the entries having been carried out without the plaintiffs being heard, the entries as well as orders, comprised, in, aforesaid Exhibits are vitiated, for transgression of the norm of audi alteram partem. Consequently, for omission on the part of the plaintiffs to adduce material displaying the fact of theirs having not participated, in, such proceedings preceding the recording of the entries, or, theirs having been recorded in their absence, hence, in sequel it is to be concluded that the entries in the revenue records were not recorded/rendered behind their back. As also, the rendition of an order comprised, in, Ex. P-3 portraying the recording of possession of the defendant over the suit land, in sequel, is too, to be concluded to have been not rendered behind their back, hence, is not ingrained with any illegality. Besides also, then the revenue entry displaying the factum of the defendant, being in possession, is also not vitiated. Preponderantly, given the acquiescence, of the plaintiffs comprised in their seeking relief of possession of the suit land, in the alternative, of, hence the defendant holding possession of the suit property belittles and renders unworthy, the contention of the learned counsel, for, the appellant, that as a matter of fact the plaintiffs were, in, possession of the suit land and their possession ought not to be displaced or disturbed, by any untenable entry in the revenue records carried out at the instance of revenue officials reflecting the defendant to be in possession thereof, which rather hence, is in consonance with the factual possession prevailing at the time contemporaneous to the recording of such entries, which even otherwise, if assumably recorded, without participation of the plaintiffs in such proceedings, while hence, portraying the truth, would assume an unassailable character. (b) The purported predecessor-in-interest of the plaintiffs one Garkha s/o Gurditta had filed a suit for possession qua the suit land against the defendant. His suit had come to be decreed, as, divulged by Ex. P-3. (b) The purported predecessor-in-interest of the plaintiffs one Garkha s/o Gurditta had filed a suit for possession qua the suit land against the defendant. His suit had come to be decreed, as, divulged by Ex. P-3. However, given the fact of a suit for possession having come to be instituted against the defendant, in which a decree for possession was accorded in favour of the purported predecessor –in-interest of the plaintiffs, the suit land is to be, then too, construed to be in possession of the defendant. The said decree passed by the learned trial Court, had, come to be affirmed by the appellate court comprised, in, its judgment comprised in Ex. P-5. Nonetheless, it, is not evident from a thorough scanning and rummaging of the record, that the decree of possession qua the suit land granted in favour of the purported predecessor-in-interest of the plaintiffs, one Garkha ever came to be executed. For lack of proof, of, execution of decree Ex. P-5, at, the instance of purported predecessor-in-interest of the plaintiffs, a, concomitant conclusion which ensues, is, that on, its, hence having remained unexecuted, as such, the purported predecessor-in-interest of the plaintiffs, omitted to reclaim possession of the suit from the defendant, consequently, its possession continued to remain with the defendant. Therefore, hence, it has also got to be concluded with the aplomb that the said factum of lack of reclamation of the suit property by the purported predecessor-in-interest of the plaintiffs, hence, conveying the continuity of possession over the suit land of the defendant acquired value and weight with the revenue officials, while recording the factum of the defendant being, in, possession of the suit land prior to and subsequent to the rendition of decree of possession of the suit land granted in favour of the purported predecessor-in-interest of the plaintiffs. The effect of the above discussion, is, that hence, with the revenue record omitting to display either the purported predecessor-in-interest of the plaintiffs or the plaintiffs having ever remained in possession of the suit land, rather, with the revenue entries, belying the effect of the purported predecessor-in-interest of the plaintiffs, one, Garka being recorded as a non-occupancy tenant, hence, rendering it to be merely, a, worthless paper entry. The further sequel, which ensues, is, that, when, during his life time, Garkha was not in possession of the suit land, as such, he could not claim statutory conferment of proprietary rights qua the suit land, under the apposite laws. Further more, when the purported predecessor-in-interest of the plaintiffs was disinvested to claim acquisition or conferment of proprietary rights over or upon the suit land, in, accordance with law, the plaintiffs too are barred to claim such a right qua the suit land, in accordance with law, which claim comes to be further emasculated, by, the fact of theirs being unable to demonstrate by cogent and best evidence comprised either in the adduction by them of the Sarja Nasab displaying them to be successors in interest of the aforesaid Garka or in their placing on the record the testamentary disposition recorded by Garkha in their favour, qua the suit land on whose adduction alone, they could claim a right, if any, ensuing to them on demise of Garka, for vestment of ownership of the suit land, in, accordance with law. Non-adduction thereof, consequently disentitles them to stake, a, claim of statutory vestment of proprietary rights over and upon the suit land. Accordingly both the substantial questions of law are answered accordingly. 8. In view of above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment and decree of the learned first Appellate Court is affirmed. No order as to costs.