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2014 DIGILAW 1270 (HP)

Mohar Singh v. Krishan Chand

2014-09-16

DHARAM CHAND CHAUDHARY

body2014
Judgment Dharam Chand Chaudhary, J. Plaintiffs, in the trial Court, are in second appeal as they are aggrieved by the judgment and decree dated 20.8.2001, passed by learned District Judge, Kullu, in Civil Appeal No.49 of 2001, whereby the judgment and decree dated 16.1.2001, passed by learned Senior Sub Judge, Kullu in Civil Suit No.168 of 1993 has been affirmed. 2. The subject matter of dispute is the land entered in Khasra No.1048, Khata Khatauni No.196/230, measuring 3-3 bighas, situate in Phati Kalwari, Kothi Palach, Tehsil Banjar, District Kullu, of which, as per copy of Jamabandi for the year 1965-66 Ext.PX, Devta Lakshmi Narayan was recorded as owner through its “Kardar” Atma Ram, whereas defendant No.1 Beli Ram and others in possession thereof in lieu of rendering services to the deity. Defendant No.2 and others had sold the entire suit land, i.e., 3 bighas 3 biswas to Saran Pat, the predecessor-in-interest of the plaintiffs vide sale deed dated 20.3.1967 Ext.PW-2/A. Mutation No.644 was also attested and sanctioned in favour of said Shri Saran Pat on 17.5.1967 as is apparent from the entries below remarks column of the Jamabandi Ext.PX. Rapat Ext.PY also came to be entered to this effect in the Roznamacha Wakyati for the year 1966-67 of Patwar Circle Chehani, Tehsil Banjar. On the death of Saran Pat, mutation of inheritance of the suit land was not sanctioned and attested in the names of plaintiffs, his legal heirs, and the suit land in subsequent Jamabandis for the year 1990-91, Ext.P.3/Ext.DG, 1985-86 Ext.DE and Khasra Girdawari Ex.DH came to be recorded in the ownership and possession of Shri Beli Ram, defendant No.1 and others. The possession thereof allegedly remained initially with late Shri Saran Pat and after his death with the plaintiffs. 3. Defendant No.2 filed the suit against defendant No.1 for the recovery of Rs.10,000/-. The same was decreed exparte vide judgment and decree dated 28.6.1988, Ext.P.1 and P.2, respectively against defendant No.1. Defendant No.2 initiated execution proceedings and the suit land to the extent of 1/4th share was attached as well as ordered to be sold by the Court in an open auction to realize the suit amount. The same was decreed exparte vide judgment and decree dated 28.6.1988, Ext.P.1 and P.2, respectively against defendant No.1. Defendant No.2 initiated execution proceedings and the suit land to the extent of 1/4th share was attached as well as ordered to be sold by the Court in an open auction to realize the suit amount. Defendant No.3 being the highest bidder, purchased 1/4th share of defendant No.1 in the suit land alongwith his other landed property in an open auction and sale certificate Ext.DA came to be issued in her favour by learned Sub Judge 1st Class, Kullu District at Kullu. Rapat Ext.DI to this effect came to be recorded in Roznamcha Wakyati for the year 1990-91. 4. The grouse of the plaintiffs, as disclosed from the plaint, is that defendant No.1 Beli Ram an intelligent and shrewd man taking advantage of the simplicity of Saran Pat, their father, in connivance with the revenue staff managed that the mutation of inheritance on the death of their father is not attested and sanctioned in their names and to the contrary got civil suit filed from defendant No.2, not opted to appear and contest the same deliberately and intentionally. Not only this, but later on got the suit land attached during the execution proceedings and put the same on auction. The plaintiffs, who on the death of their father occupied the suit land, were under the impression that they are owners thereof. The sale of the suit land in favour of defendant No.3, therefore, has been sought to be declared illegal, null and void and the result of fraud played upon the plaintiffs by defendants No.1 and 2. The plaintiffs came to know about sale of the suit land to defendant No.3 in an open auction during the first week of September, 1993 when the said defendant herself disclosed to plaintiff No.2 that the suit land was purchased by her in an open auction and that sale certificate also stands issued in her favour by the Court on 19.12.1990, hence the suit for declaration and permanent prohibitory injunction against the defendants. 5. Defendant No.1, when put to notice, has admitted the plaintiffs’ claim in toto as set out in the plaint. 6. Defendant No.2 while denying the plaintiffs’ case being wrong, has submitted that neither suit land was sold to Saran Pat nor he was ever put in possession thereof. 5. Defendant No.1, when put to notice, has admitted the plaintiffs’ claim in toto as set out in the plaint. 6. Defendant No.2 while denying the plaintiffs’ case being wrong, has submitted that neither suit land was sold to Saran Pat nor he was ever put in possession thereof. It is also denied that they raised an orchard over the suit land. The suit land throughout remained in the ownership and possession of defendant No.1. It is submitted that had the plaintiffs been in possession of the suit land, they could have filed objections and got the same released from attachment. It is further submitted that he got the suit land attached and sold in an open auction because he had to recover money from defendant No.1, Beli Ram. 7. Defendant No.3 in separately filed written statement has raised preliminary objections qua maintainability, estoppel, limitation, jurisdiction of the civil Court to try and entertain the suit and non-joinder of necessary parties. On merits, she has also denied the entire case as set out in the plaint and has come forward with the version that in the year 1967 the suit land was recorded in the ownership of Devta Lakshmi Narayan of Phati Kalwari, whereas in possession of defendant No.1, Smt. Uttmu, Prem Singh, Parmeshwari Lal and others in the capacity of tenants under the deity. On coming into force of HP Ceiling on Land Holdings Act the suit land was declared surplus and vide orders passed by Collector all rights, title and interest of Devta Lakshmi Narayan stood extinguished as well as vested in the State of Himachal Pradesh. Defendant No.2 and others, however, continued to be in possession thereof in the capacity of tenants under the State of Himachal Pradesh and ultimately on conferment of proprietary rights became owners thereof. Thereafter in the year 1989 Prem Singh, one of the co-sharers, has sold his share in the suit land and some other land to one Bhole Ram, the husband of defendant No.3 and one Thakru, whereas Parmeshwari Lal, another cosharer also sold his share to Bhole Ram and Thakru aforesaid in the year 1987. Shri Bhole Ram and Thakru became owners of the suit land to the extent of their share sold to them by S/Shri Prem Singh and Parmeshwari Lal. The share of defendant No.1, Beli Ram, was purchased by defendant No.3 in an open auction. Shri Bhole Ram and Thakru became owners of the suit land to the extent of their share sold to them by S/Shri Prem Singh and Parmeshwari Lal. The share of defendant No.1, Beli Ram, was purchased by defendant No.3 in an open auction. It has further been submitted that in the year 1967 Beli Ram, Prem Singh and Smt. Uttmu were not in exclusive possession of the suit land but occupying the same in the capacity of tenants alongwith their co-tenants Paremshwari Lal and Krishan Chand etc. They, however, could have not sold the suit land to Saran Pat. 8. In replication to the written statements filed on behalf of defendants No.2 and 3 the plaintiffs have denied the contents of preliminary objections being wrong and reiterated the entire case as set out in the plaint. 9. Learned trial Court after holding full trial has dismissed the suit while recording findings on issues No.1 to 5 as follow: “15. Thus, having regard to entire evidence on record, it can safely be concluded that land in suit was never owned and possessed by Shri Beli Ram, Smt. Uttmu and Prem Singh at the time of sale, i.e., on 23.3.1967 nor Shri Beli Ram, Smt. Uttmu and Prem Singh could sell the same to Saran Pat, predecessor-in-interest of plaintiffs vide sale deed dated 23.3.1967 being not the owners of the same and the alleged sale deed dated 23.3.1967 is merely the fictitious sale deed and as such is of no consequence as plaintiffs are not the owners in possession of the land in suit and the sale certificate dated 19.12.1990 issued by Sub Judge, 1st Class, Kullu in favour of Smt. Sheela Devi, defendant No.3 is legal, valid and binding on plaintiffs and defendants No.1 and 2 and since the plaintiffs are not found to be owners o the land in suit hence they are not entitled to relief of possession. Accordingly, all the above issues are decided against the plaintiffs and in favour of defendant No.3.” 10. The question qua maintainability of the suit, estoppel, limitation, jurisdiction and non-joinder of necessary parties have, however, been answered against the defendants while answering issues No.6 to 11 in favour of the plaintiffs. 11. Accordingly, all the above issues are decided against the plaintiffs and in favour of defendant No.3.” 10. The question qua maintainability of the suit, estoppel, limitation, jurisdiction and non-joinder of necessary parties have, however, been answered against the defendants while answering issues No.6 to 11 in favour of the plaintiffs. 11. In appeal, learned lower appellate Court after taking into consideration the given facts and circumstances and also the evidence available on record as well as the case law dismissed the appeal with following observations: “35. On facts and face of the case in hand, the authorities referred, appear to have no application with due apology to their Lordship I say so. Because it has come through admission of PW4 Sher Singh who participated in court auction that auction was conducted and defendant-3 was highest bidder. There were also other bidders. Plaintiffs are not proved possessing the land nor they have any right, title or interest therein. So sale was rightly held valid because defendant-2 obtained decree against defendant-1 and as a result executed decree qua his interest in the suit land. In such auction it was rightly purchased for valuable consideration by the defendant-3. 36. In such circumstances, it is apparent that plaintiffs are neither owners nor in possession of the suit land. It has been rightly purchased in court auction by defendant-3. Plaintiffs are also not entitled to alternative plea of possession. Hence suit was rightly dismissed by the learned trial Court. Points answered accordingly.” 12. Challenge to the judgment and decree passed by learned lower appellate Court is on the grounds, inter alia, that the same suffers with material illegalities and irregularities on account of non-framing of proper points which were required to be adjudicated upon. The area where the property in dispute situates, has the application of Punjab Tenancy Act and Punjab Security of Land Tenures Act, the provisions thereof are stated to be ignored. The findings that the land was vested in the State of Himachal Pradesh are stated to be beyond the scope of pleadings nor any issue was framed to this effect. The findings that the sale of the suit land in favour of Saran Pat are bad in law and contrary to the evidence available on record not sustainable. The revenue record produced in evidence rather stated to be misled and misconstrued. The findings that the sale of the suit land in favour of Saran Pat are bad in law and contrary to the evidence available on record not sustainable. The revenue record produced in evidence rather stated to be misled and misconstrued. The admission made by defendant No.1 in the written statement qua the title of the plaintiffs in the suit land, the suit could have not been dismissed. In case Beli Ram (defendant No.1) allegedly has no title in the suit land and the competency to transfer the same in favour of Saran Pat by way of sale proceedings in execution petition should have also been held illegal, null and void and the sale of the suit land to defendant No.3 in an open auction should also have been held illegal, null and void, having conveyed no title in her favour. 13. This appeal has been admitted on the following substantial questions of law: 1. Whether the lower appellate Court has wrongly formulated point No.1 which was beyond the scope of the pleadings of the parties and was not a subject matter of issue before the trial Court, is not the impugned judgment rendered by the lower appellate Court vitiated by taking into consideration such question which was extraneous to the dispute? 2. Whether both the Courts below have acted beyond their jurisdiction to put unnecessary reliance on the entries in the revenue records, presumption to which stood rebutted on account of Exhibit PW-2/A and Exhibit PY showing the valid transfer of title in favour of Saran Pat, predecessor in interest of the plaintiff-appellants and delivery of possession? When the title of the plaintiff-appellants over the suit property was not in question, are not the findings of both the Courts below holding the plaintiff-appellants not to be owner in possession, illegal, erroneous and perverse? 3. Whether the findings of both the courts below in upholding the validity of the decree obtained ex-parte by defendant No.2 as the sale of the property in favour of defendant No.3 in execution of such decree, behind the back of the plaintiff-appellants to be valid are incapable of being sustained being on account of misreading of the pleadings and relevant evidence and non-consideration of the material evidence rendered such findings to be erroneous, illegal and perverse? 4. 4. Whether the lower appellate Court has misread the provisions of Punjab Tenancy Act and Punjab Security of Land Tenures Act to record the findings that the sale made by defendant No.1 and other co-owners in favour of Shri Saran Pat was illegal, null and void, when the same could not have been questioned by the defendants who were claiming title through the same person? Have not both the Courts below gone beyond their jurisdiction in setting aside the title of the plaintiff-appellants when no other part of the property was sold? 5. Whether both the Courts below have ignored the basic principles of law that even if the title of the predecessor-in-interest of the plaintiff-appellants was invalid for any reason, the same matured due to afflux of time in assertion of the right of the plaintiff-appellants as owner, has not the correct legal position misunderstood vitiating the entire judgment and decree? 6. Whether both the Courts below have misread the evidence in denying the relief of injunction to the plaintiff-appellants by holding that the plaintiff-appellants are neither owner nor in possession of the suit property? 14. Shri Bhupender Gupta, learned Senior Advocate assisted by Shri Neeraj Gupta, Advocate, appearing on behalf of appellants-plaintiffs has mainly emphasized that the factum of the suit land having been purchased by the father of the plaintiffs, Shri Saran Pat, stands established on record as per own stand of the first defendant in written statement he filed to the suit and also by way of the sale deed Ext.PW-2/A. The said sale transaction having not been challenged nor questioned by any one in the Court of law, establish the title of the plaintiffs in the suit land. The question that the vendor Beli Ram (defendant No.1), Smt. Uttmu and Prem Singh were not owners of the suit land and rather tenants under the deity (Devta Lakshmi Narayan), hence could have not conveyed the title qua suit land by way of sale thereof to Saran Pat, should have not been taken to non-suit the plaintiffs, as according to Mr. Gupta, had Beli Ram etc. been not owners of the suit land how defendant No.3 could have acquired the same even if it is presumed that she has purchased the same in an open auction. Gupta, had Beli Ram etc. been not owners of the suit land how defendant No.3 could have acquired the same even if it is presumed that she has purchased the same in an open auction. It has further been argued that undue weightage cannot be given to the entries in the revenue record nor such entries prove the title of a person in any property and it is the sale deed like in the present case, which proves the title of a person qua the property purchased. Therefore, according to Mr. Gupta, when the sale deed Ext.PW-2/A stands satisfactorily proved and mutation of the suit land was also attested in the name of Saran Pat, the suit could have not been dismissed. 15. On the other hand, Shri Anand Sharma, Advocate, learned Counsel representing respondent No.3- defendant, has strenuously contended that the concurrent findings of facts recorded by both Courts below can not be interfered with in the present appeal. Also that defendant No.3 is the bonafide purchaser of the suit land. The land according to him, was attached in execution proceedings and when put to sale in an open auction defendant No.3 purchased the same being the highest bidder. It has further been contended that defendant No.3 has purchased the suit land to the extent of the share of Beli Ram, the first defendant. Learned Counsel, therefore, has sought the dismissal of the appeal. 16. On analyzing the rival submissions and also taking into consideration the evidence available on record, it is 1/4th share of defendant No.1 Beli Ram in the suit land measuring 3-3 bighas, i.e., less than one bigha, the subject matter of dispute in the present lis. True it is that both Courts below have non-suited the plaintiffs and the present is a case of concurrent findings. 17. As per the settled legal principles, in a case of concurrent findings, recorded after proper analysis and appreciation of evidence by the trial Court and lower appellate Court, in a Regular Second Appeal under Section 100 of the Code of Civil Procedure, the High Court should be slow and normally not interfere therewith, unless and until the findings so recorded are perverse. It is held so by the Hon’ble Apex Court in Amiya Bala Dutta and others v Mukut Adhikari and others, (2011) 11 SCC 628 . It is held so by the Hon’ble Apex Court in Amiya Bala Dutta and others v Mukut Adhikari and others, (2011) 11 SCC 628 . Similar is the ratio of the judgment, again that of Hon’ble Apex Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh and others, (2006) 13 SCC 449. 18. The legal questions arise for determination by this Court, besides mis-appreciation and misreading of the evidence produced by the parties on both sides also pertain to the validity and legality of the sale deed Ext.PW-2/A which was never assailed by any one in a Court of law and acquiring of title pursuant to this document by the predecessor-in-interest of the plaintiffs, Shri Saran Pat. 19. No doubt, Devta Lakshmi Narayan was recorded owner of the land in dispute. Defendant No.1, Beli Ram, his daughter-in-law, Smt. Uttmu were in possession of half portion thereof in equal shares, whereas the remaining half was in the possession of S/Shri Prem Singh, Parmeshwari Lal and Krishan Chand sons and Smt. Ram Dei daughter as well as Smt. Piar Dassi, widow of Chande Ram in equal shares. The sale deed Ext.PW-2/A reveals that it is Beli Ram (defendant No.1), Smt. Uttmu and Prem Singh had sold their entire share in the suit land and also other landed property belonging to them to Saran Pat, the predecessor-in-interest of the plaintiffs. The execution of this document stands proved from the testimony of Shri Budh Ram (PW-2), one of the marginal witnesses to this document. Even defendant No.1 Beli Ram himself has admitted in the written statement filed to the suit that the suit land was sold by Prem Singh etc. to Saran Pat vide sale deed Ext.PW-2/A. Rapat Ext.PY was also recorded in the Roznmacha Wakiati. The entries under the remarks column of Jamabandi Ext.PX/PZ demonstrate the attestation of mutation No.644 on 17.5.1967 consequent upon the sale of the suit land vide sale deed Ext.PW-2/A in the name of Saran Pat. The sale deed Ext.PW-2/A is duly registered with Sub Registrar. The same has not been questioned by any one including defendant No.3, who purchased the suit land to the extent of share of defendant No.1 Beli Ram in an open auction. The sale deed Ext.PW-2/A is duly registered with Sub Registrar. The same has not been questioned by any one including defendant No.3, who purchased the suit land to the extent of share of defendant No.1 Beli Ram in an open auction. On the other hand, in view of such entries in the revenue record showing conveyance of the suit land to Saran Pat, the said defendant cannot be said to be a bonafide purchaser because had the revenue record been examined by her carefully, would have come to know about the transaction of sale having already taken place between Beli Ram aforesaid and his daughter-in-law Smt. Uttmu as well as Prem Singh on one side and Saran Pat on the other. 20. True it is that in the subsequent Jamabandis for the year 1985-86 Ext.DE and 1990-91 Ext.P.3/DG as well as Khasra Girdawari from Kharif 1991 to Kharif 1993 Ext.DH Beli Ram etc. have been shown owners in possession of the suit land and there is no reference of the name of Saran Pat in the said record. Said Shri Saran Pat or the plaintiffs cannot be held responsible for not maintaining the subsequent revenue record as per actual and factual position because of not the Incharge of the said record. Rather in view of execution of the sale deed Ext.PW-2/A in favour of Saran Pat, entry qua this transaction in Roznamcha Wakyati Ext.PY as well as attestation and sanction of mutation No.644 in his favour should have been taken care of by the revenue staff for making entries with respect to the suit land in the records prepared subsequently. 21. It is in this backdrop, there being no entries in subsequent record reflecting the name of Saran Pat or his successors, i.e., the plaintiffs, is hardly of any help to the defendants nor is a circumstance to be relied upon against the plaintiffs for the reasons that as per settled legal principles entries in revenue record do not confer title in respect of any property. This Court draws support in this behalf from the judgment of the Apex Court in Union of India and others v. Vasavi Co-operative Housing Society Ltd. and others, 2014(1) Shim. LC 411, which reads as follows: “17. This Court in several Judgments has held that the revenue record does not confer title. This Court draws support in this behalf from the judgment of the Apex Court in Union of India and others v. Vasavi Co-operative Housing Society Ltd. and others, 2014(1) Shim. LC 411, which reads as follows: “17. This Court in several Judgments has held that the revenue record does not confer title. In Corporation of the City of Bangalore v. M. Papaiah and another (1989) 3 SCC 612 held that “it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law.” In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349 this Court has held that “that the entries in Jamabandi are not proof of title”. In State of Himachal Pradesh v. Keshav Ram and others (1996) 11 SCC 257 this Court held that “the entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff.” 18. The Plaintiff has also maintained the stand that their predecessor-in-interest was the Pattadar of the suit land. In a given case, the conferment of Patta as such does not confer title. Reference may be made to the judgment of this Court in Syndicate Bank v. Estate Officer & Manager, APIIC Ltd. & Ors. (2007) 8 SCC 361 and Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu & Ors. (1991) Supp. (2) SCC 228.” 22. Similar is the ratio of the judgment delivered by a Co-ordinate Bench of this Court in Dharam Singh Kapoor and others v. Om Parkash and others, 2008(2) Shim.LC 370 . 23. Both Courts below have erroneously placed reliance on the entries in the revenue record while non-suiting the plaintiffs and discarding the sale deed Ext.PW-2/A as well as the other record, i.e., Jamabandi for the year 1965-66 Ext.PX and the Rapat Roznamcha Wakyati Ext.PY. As a matter of fact, it is the sale deed which could have been given weightage and without there being any evidence to show that the same was ever declared illegal or null and void, should have been relied upon and the suit decreed. 24. The plaintiffs have pleaded fraud having been played by defendant No.1 in connivance with defendants No.2 and 3. 24. The plaintiffs have pleaded fraud having been played by defendant No.1 in connivance with defendants No.2 and 3. Jai Singh, plaintiff No.1, as PW-1 has also stated so in so many words while in the witness box. Even from the given facts and circumstances also, it can be gathered that Civil Suit No.104 of 1987 was filed by defendant No.2 in connivance with defendant No.1. It is for this reason defendant No.1 allowed himself to be proceeded against ex-parte and the suit was decreed ex-parte. Defendant No.2 Krishan Chand though contested the suit and filed written statement, however, opted not to step into witness box to the reasons best known to him. Meaning thereby that he did so intentionally and deliberately in order to avoid the questions which could have been put to him on behalf of the plaintiffs qua his connivance with defendants No.1 and 3. The ingredients of fraud played upon the plaintiffs by Beli Ram in connivance with defendant No.2, therefore, also stand established. Though, defendant No.3 is an auction purchaser as is apparent from the sale certificate Ext.DA issued by learned Sub Judge 1st Class, Kullu, District Kullu and also the entries in Roznamcha Wakyati vide Rapat Ex.DI. Mutation No.1527 qua 1/4th share of defendant No.1 in the suit land also stands sanctioned and attested in her favour. She, however, cannot be said to be a bonafide purchaser for the reason that defendant No.1 Beli Ram had already sold the same to Saran Pat, therefore, the share of Beli Ram in the suit land could have not been sold. Even if Beli Ram etc. have no title in the suit land when it was sold to Saran Pat in that event also with the passage of time Saran Pat and on his death his successors, the plaintiffs can reasonably be believed to have acquired title therein, particularly when sale deed Ext.PW-2/A and mutation of the suit land attested in the name of Saran Pat, not has been challenged by anyone. Merely that deity was owner of the suit land at the relevant time and also there being no entries showing the name of Saran Pat or his successors in the subsequent records, in the light of the discussion hereinabove should have not taken into consideration to non-suit the plaintiffs. Merely that deity was owner of the suit land at the relevant time and also there being no entries showing the name of Saran Pat or his successors in the subsequent records, in the light of the discussion hereinabove should have not taken into consideration to non-suit the plaintiffs. The findings to the contrary recorded by both the Courts below, therefore, are certainly the result of misreading and mis-appreciation of the evidence available on record, hence perverse. The substantial questions of law stand answered accordingly. The impugned judgment and decree is, therefore, quashed and set aside. Consequently, the appeal is allowed and the suit of the plaintiffs is decreed for the relief of declaration that they are owners in possession of the suit land to the extent of the share of defendant No.1, Beli Ram and the auction thereof in favour of defendant No.3 is illegal, null and void as well as not binding on the plaintiffs. The sale certificate Ext.DA is also held to be illegal, null and void. The defendants are restrained from causing any interference over the possession of the plaintiffs in the suit land. The parties to bear their own costs.