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2014 DIGILAW 1431 (HP)

Thakur Dass v. Roshan Lal

2014-10-15

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. 1. This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge (Fast Track Court), Ghumarwin, District Bilaspur, dated 31.10.2012 passed in Civil Appeal No. 57/13 of 2008. 2. Key facts, necessary for the adjudication of this appeal are that the predecessor-in- interest of the plaintiffs-appellants (hereinafter referred to as the plaintiffs, for the convenience sake), Sh. Ganga Ram filed a suit for declaration with prayer for consequential relief of permanent injunction against the respondents-defendants (hereinafter referred to as the defendants). The case of the plaintiffs, in a nut shell, is that the defendants had instituted a suit for foreclosure of land measuring 23.6 bighas comprised in Khasra No. 49, 65, 70, 71, 76, 70 and 87 situated in village Kyari, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. claiming the same to be in their possession since 26.7.1988. The litigation came up to this Court. Thereafter, the parties have arrived at amicable settlement on 20.8.2001, whereby the plaintiff Ganga Ram had orally relinquished the title and possession of the land measuring 2 bighas comprised in Kh. No. 71/3 and land measuring 8 biswas in Kh. No. 65/1 and land measuring 0.12 bighas out of Kh. No. 54 in favour of the defendants while defendants relinquished their title orally in favour of plaintiff of the rest of the suit land. The suit land was in the possession of the plaintiffs. Plaintiff-Ganga Ram, thereafter filed an application for the verification of the physical possession of the spot and Field Revenue Staff visited the spot. The possession of the parties was confirmed by the revenue staff. In the alternative, plaintiffs have asserted that the predecessor-in-interest of defendants No. 16 to 20 have left 1.13 bighas land in favour of plaintiff Ganga Ram on 30.11.1960. Thus, the entries in the revenue record are illegal. The plaintiffs deserves to be declared co-owners in joint possession to the extent of ?rd share of all the property of Sh. Kundan son of Sh. Laturia, on the basis of the registered 'Will' dated 5.7.1976. The cause of action arose to the plaintiffs on 25.9.2001 when the defendants resiled from the oral relinquishment/settlement dated 20.8.2001 and threatened to dispossess the plaintiffs. Kundan son of Sh. Laturia, on the basis of the registered 'Will' dated 5.7.1976. The cause of action arose to the plaintiffs on 25.9.2001 when the defendants resiled from the oral relinquishment/settlement dated 20.8.2001 and threatened to dispossess the plaintiffs. The plaintiffs have prayed for a declaration to the effect that the plaintiff No. 1 has become owner in possession of land measuring 20.18 bighas comprised in Khasra No. 65/2, 71/1, 71/2, 49, 76, 79, 70, 87, khata No. 3 min Khatoni No. 3 & 5 situated in Village Kyari, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. on the basis of relinquishment dated 20.8.2001. The plaintiffs have further prayed that a decree of declaration be passed to the effect that plaintiffs are owner in possession over the suit land measuring 1.13 bighas comprised in Kh. No. 65/2 on the basis of compromise dated 30.11.1960 executed by Smt. Judhya Devi wife of Ruwalu Ram. It was also prayed that mutation No. 133 sanctioned on 31.5.1984 in favour of plaintiff Ganga Ram and defendant No. 21 Sant Ram be declared illegal and wrong. Plaintiffs have prayed for decree of permanent injunction restraining the defendants from dispossessing the plaintiffs and creating any charge or interfering in the suit land. 3. The suit was contested by the defendants. According to the defendants, the suit for foreclosure was filed by them which was decreed. The appeal filed by Ganga Ram, predecessor-in-interest of the plaintiffs was dismissed by the learned District Judge, Bilaspur, H.P. and Regular Second Appeal was also dismissed by the High Court. It was denied that the suit land remained in the possession of the plaintiffs. It was also denied that the parties have entered into amicable settlement or relinquishment dated 20.8.2001. There was no spot inspection made by the revenue officials. The plaintiffs were not entitled to the relief of declaration or any other alternative relief. 4. Replication was filed by the plaintiffs. Issues were framed by the learned Civil Judge (Jr. Divn.), Ghumarwin on 5.11.2007. The learned Civil judge (Jr. Divn.), Ghumarwin dismissed the suit on 22.10.2008. The plaintiffs preferred an appeal before the learned Addl. District Judge, Ghumarwin. He dismissed the same on 31.10.2012. Hence, this regular second appeal. 5. Mr. G.D. Verma, Sr. 4. Replication was filed by the plaintiffs. Issues were framed by the learned Civil Judge (Jr. Divn.), Ghumarwin on 5.11.2007. The learned Civil judge (Jr. Divn.), Ghumarwin dismissed the suit on 22.10.2008. The plaintiffs preferred an appeal before the learned Addl. District Judge, Ghumarwin. He dismissed the same on 31.10.2012. Hence, this regular second appeal. 5. Mr. G.D. Verma, Sr. Advocate, on the basis of substantial questions of law framed, vehemently argued that both the Courts' below have misread and misconstrued the oral as well as documentary evidence. According to him, the plaintiffs have proved the relinquishment dated 20.8.2001. On the other hand, Mr. Ashwani Sharma, Advocate, has supported the judgments and decrees passed by both the Courts' below. 6. I have heard the learned Advocates for the parties and gone through the records of the case carefully. 7. Since all the questions of law are inter-related, hence in order to avoid repetition of evidence, these were taken up together for discussion. 8. The original plaintiff Sh. Ganga Ram died during the pendency of the suit before the learned Civil Judge (Jr. Divn.), Ghumarwin. His legal representatives were brought on record during the trial. 9. PW-1 Parkash Chand, Record Keeper, Tehsildar Office, Ghumarwin has produced his affidavit Ext. PW-1/A and produced the record of file No. 97/8 of 2001 titled as Ganga Ram vs. Geetan Devi. 10. The plaintiff Thakur Dass has appeared as PW-2 and has led his evidence by filing affidavit Ext. PW-2/A. He has referred to the earlier litigation between the parties. According to him, after the litigation, the parties arrived at an amicable settlement dated 20.8.2001. He filed an application for verification of physical possession. Revenue field staff visited the spot and confirmed the possession of the parties on the spot. The plaintiffs and defendants were entitled to possession as per the relinquishment. In the alternative, he has prayed that plaintiffs be declared co-owners in joint possession to the extent of ?rd share in the property of Sh. Kundan son of Sh. Laturia on the basis of the registered 'Will' dated 5.7.1976. According to him, the defendants have resiled from the oral relinquishment/settlement deed. PW-2 has produced the copy of Jamabandi Ext. PA, Will Mark-X, Jamabandi Ext. PB, Application Ext. PC, copy of mutation Ext. PD and Ext. PE pedigree table, Ext. Kundan son of Sh. Laturia on the basis of the registered 'Will' dated 5.7.1976. According to him, the defendants have resiled from the oral relinquishment/settlement deed. PW-2 has produced the copy of Jamabandi Ext. PA, Will Mark-X, Jamabandi Ext. PB, Application Ext. PC, copy of mutation Ext. PD and Ext. PE pedigree table, Ext. PF compromise Mark 'Z', report of Kanungo Mark 'Y', copy of order dated 28.11.1988 Ext. PG and copy of Decree Sheet Ext. PH. 11. PW-3 Devinder Kumar, Patwari has led his evidence by filing affidavit Ext. PW-3/A. According to him, he was posted as Patwari in the year 2001 in Patwar Circle, Ghumarwin. Field Kanungo alongwith him demarcated the suit land. Tatima was prepared as per the demarcation. He has produced Tatima Ext. PW-3/B and Itlahnama Ext. PW-3/C. 12. PW-4 Gian Chand, retired Kanungo has led evidence by filing affidavit Ext. PW-4/A. According to him, he was posted as Field Kanungo at Kanungo Circle, Ghumarwin. On the basis of application of Sh. Ganga Ram, he visited the spot and in the presence of witnesses prepared report dated 13.9.2001. He recorded the statements of witnesses and prepared tatima on the basis of physical position on the spot. He has proved copy of report Ext. PW-4/B and Ext. PW-4/C. 13. PW-5 Jagar Nath has deposed that Field Kanungo alongwith the Patwari visited the spot in the presence of the number of witnesses and prepared the report. 14. PW-6 Gulabu Ram, deposed that revenue field staff visited the spot alongwith the witnesses. They recorded the statements of the witnesses and prepared the report. 15. PW-7 Duni Chand also deposed that Field Kanungo alongwith the Patwari visited the spot in the presence of number of witnesses. 16. Defendant, Sant Ram has appeared as DW-1. He led his evidence by filing affidavit Ext. DW-1/A. According to him, there was an earlier suit pending between the parties for the foreclosure which was decreed. The appeal was preferred before the learned District Judge, Bilaspur by the plaintiff which was dismissed. The judgment was assailed by filing Regular Second Appeal which was also dismissed. The plea of the plaintiffs with regard to the document dated 7.6.1958 was rejected by the Courts' below. The suit was filed by the plaintiffs to delay the proceedings. There was no compromise dated 20.8.2001. It was denied that the plaintiffs were in possession of the suit land. 17. The plea of the plaintiffs with regard to the document dated 7.6.1958 was rejected by the Courts' below. The suit was filed by the plaintiffs to delay the proceedings. There was no compromise dated 20.8.2001. It was denied that the plaintiffs were in possession of the suit land. 17. According to PW-3 Devender Kumar, Patwari, he alongwith the Field Kanungo got demarcated the suit land and tatima was prepared. The demarcation report was prepared and verified by Kanungo. However, as per PW-4, no demarcation was carried out on the spot and the tatima was prepared merely on the basis of physical possession by the Patwari. PW-4 Gian Chand has admitted in his cross-examination that he has not recorded any statement of the defendants. According to him, the defendants had run away from the spot. He has also admitted that on application Ext. PC, the word "Va Moka" have been added with different ink. PW-7 Duni Chand was unaware of the respective possession of the parties. The plaintiffs have failed to prove that any demarcation was carried out on the spot by the revenue staff. According to the revenue staff, Ganga Ram was present on the spot, however, PW-5 Jagar Nath has testified that Ganga Ram was expired and was not present on the spot at the time of preparation of the report. He also admitted that he did not inform the revenue officials about the possession of the parties and the possession was disclosed by the Patwari and Kanungo. The plaintiffs have miserably failed to prove relinquishment dated 20.8.2001. There is no tangible evidence placed on the record oral or documentary to establish the execution of relinquishment or settlement deed dated 20.8.2001. Tatima Ext. PW-3/B has been prepared without any demarcation. The defendants were never party to report Ext. PW-4/C. All the defendants were not properly served. Thus, no credence can be given to report Ext. PW-4/C. The 'Will' mark "X" has not been proved in accordance with law. The onus was on the plaintiffs to prove the same. The plaintiffs have failed to prove their possession over the suit land. The suit was also barred by res judicata. The defendants have earlier filed Civil Suit for foreclosure against the plaintiffs before the Civil Judge, Ghumarwin. The suit was decreed vide Ext. D-1. The onus was on the plaintiffs to prove the same. The plaintiffs have failed to prove their possession over the suit land. The suit was also barred by res judicata. The defendants have earlier filed Civil Suit for foreclosure against the plaintiffs before the Civil Judge, Ghumarwin. The suit was decreed vide Ext. D-1. The judgment rendered in case No. 168 of 1984 and decree dated 28.11.1988 passed by the learned Sub Judge, Ghumarwin was upheld by the learned District Judge. The regular Second Appeal preferred against the judgment and decree of the learned District Judge, dated 27.3.2000 was dismissed by this Court in RSA No. 329 of 2000 on 13.7.2001. The judgment was implemented. Mutations were also attested and necessary entries were also made in the jamabandis. The substantial questions of law are answered accordingly. 18. Consequently, the learned Courts' below have correctly appreciated the oral as well as documentary evidence placed on record. The plaintiffs have miserably failed to prove the relinquishment/settlement deed dated 20.8.2001. There is no merit in this appeal, the same is dismissed. Appeal Dismissed.