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2014 DIGILAW 1249 (HP)

Dharmender Singh v. Layak Ram

2014-09-11

SURESHWAR THAKUR

body2014
Judgment Sureshwar Thakur, J. The instant appeal is directed against the judgment and decree, rendered on 13.5.2003, in Civil Appeal No.61-CA/13 of 2002 by the learned District Judge, Sirmaur District at Nahan, H.P., whereby, the learned First Appellate Court allowed the appeal, preferred by the defendants. 2. Brief facts of the case are that the appellants/plaintiffs filed a suit for permanent prohibitory injunction restraining the defendants from interfering in their peaceful possession over the land comprised in Khasra No. 485/428 measuring 15.7 Bighas and land comprised in Khasra No. 165 measuring 4.15 Biswas situated in Village Bhuppur, Tehsil Paonta Sahib, District Sirmaur. The plaintiffs have alleged that the land was owned and possessed by Kalyan Singh and after his death, his wife Smt. Daropti Devi, inherited the same and after death of Smt. Daropti Devi the plaintiffs have inherited the entire property on the basis of a Will dated 22.3.1980 and necessary mutation No. 602 dated 3.9.1996 was also attested in their favour. The defendants, who are only shown owners in the column of ownership in the Jamabandi but they never remained in possession of the suit property as the land was sold to Shri Kalyan Singh, hence, the defendants have no concern with the suit property and even the entry in the column of ownership in favour of defendants and others is also illegal and is not binding on the plaintiffs. The defendants tried to take forcible possession of the suit property and they also threatened to dispossess the plaintiffs. The plaintiffs have prayed for the grant of the relief of permanent injunction restraining the defendants from interfering in the suit property. 3. The defendants/respondents contested the suit and filed written statement taking preliminary objections that the suit of the plaintiffs is not maintainable as they have no locus standi. The plaintiffs have no right, title or interest in the suit property and they have not come to Court with clean hands. They have further alleged that Khasra No. 165 measuring 4.15 bighas is in possession of the defendants, who are cultivating the same as owners and the entries in favour of Kalyan Singh regarding this land are incorrect and are not binding on them. They have further alleged that Khasra No. 165 measuring 4.15 bighas is in possession of the defendants, who are cultivating the same as owners and the entries in favour of Kalyan Singh regarding this land are incorrect and are not binding on them. On merits, they have admitted that Kalyan Singh was owner in possession of land measuring 15.7 bighas comprised in Khasra No. 485/428 and he was having no right, title or interest over land comprised in Khasra No. 165 measuring 4.15 Bighas. They have denied the remaining contents of the plaint and alleged that the question of dispossession of the plaintiffs does not arise as they have no right, title or interest over the suit property. Smt. Daropti has never inherited the suit property nor she was competent to execute any Will qua the suit property in favour of the plaintiffs and they have prayed for the dismissal of the suit. 4. The plaintiffs/appellants filed replication to the written statement of the defendants/respondents, wherein, they denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether Kalyan Singh was occupying the suit land as owner in possession on the basis of sale in his favour, as alleged? OPP. 2. Whether Smt. Daropti inherited the suit land from Sh. Kalyan Singh her husband after his death, as alleged? OPP. 3. Whether Smt. Daropti Devi had executed a valid Will dtd. 22.3.1980 in support of the suit land in favour of the plaintiffs, as alleged? OPP. 4. Whether the entries in favour of defendants and others regarding ownership of the suit land is illegal, wrong and fraudulent, as alleged? OPP. 5. Whether the plaintiffs are entitled for the relief of injunction, as claimed? OPP. 6. Whether the suit is not maintainable, as alleged? OPD. 7. Whether the plaintiffs have no locus-standi to filing the suit, as alleged? OPD. 8. Whether the plaintiffs have no cause of action, as alleged? OPD. 9. Whether the entries qua possession of Kalyan Singh over the suit land in the record are incorrect and false, as alleged? OPD. 10. Whether the mutation No. 602 in favour of plaintiffs is wrong and false, as alleged, if so its effect? OPD. 11. Relief. 6. OPD. 8. Whether the plaintiffs have no cause of action, as alleged? OPD. 9. Whether the entries qua possession of Kalyan Singh over the suit land in the record are incorrect and false, as alleged? OPD. 10. Whether the mutation No. 602 in favour of plaintiffs is wrong and false, as alleged, if so its effect? OPD. 11. Relief. 6. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/appellants, to the extent that the defendants were restrained from interfering in the suit land comprised in Khasra No. 165 measuring 4 bighas 15 biswas situated at village Bhuppur, Tehsil Paonta Sahib. In appeal, preferred before the learned first Appellate Court by the defendants against the judgment and decree of the learned trial Court, the learned first Appellate Court dismissed the suit of the plaintiffs. 7. Now the appellants/plaintiffs have instituted the instant Regular Second Appeal before this Court, assailing the findings, recorded in, the impugned judgment and decree rendered by the learned first Appellate Court. When the appeal came up for admission on 29.8.2003, this Court, admitted the appeal instituted by the appellants/plaintiffs, against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question of law:- 1. Whether the learned District Judge has misconstrued, misinterpreted and misapplied the evidence on record and the view taken by him in the impugned judgment, decree is not possible on the basis of material on record? Substantial question of Law No.1. 8. Uncontrovertedly, the parties are not at contest qua the ownership of land measuring 15-7 bighas comprised in Khasra No. 485/428. The lis intere-se the parties at contest is qua an area measuring 4 bighas 15 biswas comprised in Khasra No. 165. Daropti Devi, since deceased, on demise of Kalyan Singh, the predecessor-in-interest of the plaintiffs, purported owner in possession of the suit property executed a Will qua the suit property in favour of the plaintiffs, on strength thereof, the plaintiffs canvassed that with their predecessors-in-interest having a valid and sustainable title qua the suit land, as such, now they step into his shoes and have acquired rights as owners in possession of the suit property. The controversy, which has to be put at rest is whether Kalyan Singh, under whom Daropti Devi, the mother of the plaintiffs, derived an interest in the suit property and conveyed it by way of a testamentary disposition executed by him in her favour by the plaintiffs, had any tenable as well as a valid and subsisting title, qua the suit property. For gauging the fact whether Kalyan Singh, under whom his widow Daropti Devi (since deceased), and now the plaintiffs on the strength of the latter, having executed a testamentary disposition qua the suit property, claim right of owners in possession of the suit property, ever had an invincible title qua the suit property, an advertence is required to make an entry existing in Ext.P-6 Jamabandi for the year 1956-57 qua the suit property wherein Kalyan Singh, predecessor-in-interest of the plaintiffs was reflected to have the status of “Bila Lagaan Batsawar Malkiyati Khud”. On the strength of the aforesaid entry, the counsel for the plaintiffs/appellants contends that hence Kalyan Singh, the predecessor-in-interest of the plaintiffs had in the year 1956-57, as conveyed by Ext.P-6, become owner of the suit property, hence, his widow Daropti was empowered to execute a testamentary disposition qua the suit property in favour of the plaintiffs. A reading of the entry appearing in the column of possession existing in Jamabandi Ext.P-6 reflecting the status of Kalyan Singh the predecessor-in-interest of the plaintiffs over the suit land as “Bila Lagaan Batsawar Malkiyati Khud” does not for the reason; (a) of their being no reflection in the column of ownership of Kalyan Singh being the owner of the suit property; (b) their being no attestation of mutation on the score or on the strength of any purported sale transaction having occurred or taken place interse Kalyan Singh and the previous owners constitute it to be construable or connoting or communicating the fact of Kalyan Singh having ever acquired a valid and subsisting title over the suit property. The entry in the column of possession in Ext.P-6 does when rather forcefully conveying the factum of Kalyan Singh, the predecessor-ininterest of the parties at contest to be “Bila Lagaan Batsawar Malkiyati Khud” does not empower it to articulate or bespeak the factum of Kalyan Singh being its recorded owner, in pursuance to a sale transaction having occurred inter-se him and the previous land owners, rather garners a conclusion that the occurrence of the aforesaid entry is significatory of the fact that it has mechanically or perfunctorily occurred therein without their being any sale transaction inter-se Kalyan Singh or the previous owners. Had a sale transaction inter-se Kalyan Singh and the previous owner occurred or taken place necessarily then its occurrence, would have found communication in the column of ownership of Jamabandi qua the suit land comprised in Ext.P-6 in pursuance to the attestation of a preceding mutation recording the fact of a sale transaction inter-se Kalyan Singh and the previous owners having taken place. An omission thereof, for reiteration, constrains this Court to conclude that no sale transaction inter-se Kalyan Singh and previous owners ever took place. Moreso, in absence of occurrence in the revenue record of an entry conveying the conferment of the status aforesaid upon Kalyan Singh, to be voiced by the recording of or attestation of mutation of sale which occurred inter se Kalyan Singh and the previous owners, for concluding that Kalyan Singh was bestowed or conferred the status as an owner qua the suit property, as a corollary, its absence constrains this Court to conclude that the entry in Ext.P-6 conferring the status of “Bila Lagaan Batsawar Malkiyati Khud” upon Kalyan Singh has been unilaterally or arbitrarily recorded or is not in pursuance or preceded to by any valid order of any revenue authority. Consequently, it has no force or sanctity, rather it has to be construed to be non-est. In sequel, it has to be emphatically concluded that Kalyan Singh, predecessor-in-interest of the plaintiffs never was bestowed with or conferred with the status of owner of the suit land and that the entry in Ext.P-6 comprising the Jamabandi for the year 1956-57 qua the suit land is liable to be construed to be of carrying no probative value in determining the issue over which the parties are engaged. 9. 9. The effect of this Court construing Ext.P-6 to be non-est and its further sequelling the concomitant effect of the predecessor-ininterest of the plaintiffs having acquired no title over the suit land, as a corollary then the effect of Will, if any, executed by widow Daropti Devi in favour of plaintiffs does not vest in them any right, title or interest over the suit property. Even the effect of the extant Jamabandi apposite to the suit land omitting to convey that on the demise of Kalyan Singh in January, 1980, the name of Daropti Devi as widow was reflected in the column of possession qua the suit property, rather, fillips a conclusion that when presumption of truth is to be lent to the revenue record comprised in the Jamabandi qua the suit land comprised in Ext.P-13 conveying the fact of the suit property to be recorded in possession of the defendants and when no apposite evidence carrying any probative worth has been adduced to rebut the said presumption, it, has to be concluded that the defendants are in possession of the suit land, as aptly concluded by the learned First Appellate Court. Hence, the plaintiffs are not entitled to the relief of injunction. The substantial question of law is answered against the plaintiffs-appellants and in favour of defendants-respondents. Appeal dismissed. Impugned judgment and decree of the first Appellate Court maintained and affirmed. The parties are left to bear their own costs.