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2014 DIGILAW 1489 (HP)

Ram Dei v. Kalan

2014-10-20

SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment and decree, rendered on 1.7.2003, in Civil Appeal No. 92 of 1995, by the learned District Judge, Bilaspur, Himachal Pradesh, H.P., whereby, the learned First Appellate Court dismissed the appeal, preferred by the plaintiffs/appellants. 2. The brief facts of the case are that the plaintiffs had instituted a suit for declaration with consequential relief of permanent injunction against the defendants on the allegations that both the parties had been joint owners in possession of land described in Khata/Khatoni No. 263/383, Khasra No. 87, measuring 3-18 bighas situated in revenue estate, Chhat, Pargana Sunhani, Tehsil Ghumarwin, District Bilaspur. The plaintiffs were stated to be owners of ½ share of the suit land. The defendants were stated to be owners of the remaining ½ share of the suit land. The defendants stated to be in connivance with the officials of the revenue department had manipulated reduction of the share of the plaintiffs from ½ to 1/4th. The share of the defendants had been increased from ½ to 3/4th. It is stated that the change of entries of the books of the Collector relating to the share of the parties was wrong, illegal and void. On the strength of the wrong and illegal entries of the suit land, the defendants had applied for partition of the suit land. The A.C. 1st Grade, Ghumarwin vide order dated 2.5.1987 had proceeded to partition the suit land. The plaintiffs were being allotted 1/4th share of the suit land. The order dated 2.5.1987 passed by A.C 1st Grade was stated to be wrong, illegal and void. The plaintiffs had instituted the appeal against the order dated 2.5.1987 passed by A.C. 1st Grade before the Collector. The appeal of the plaintiffs had been dismissed by the Collector vide order dated 13.6.1988. It is stated that the orders dated 2.5.1987 and 13.6.1988 passed by the Assistant Collector, 1st Grade and Collector respectively were wrong, illegal and void. The defendants were sought to be restrained from interfering with the ownership and possession of the plaintiffs of ½ share of the suit land by issuance of a decree of perpetual injunction. With these allegations, the plaintiffs had instituted the suit in the Court below on 15.1.1990. 3. The defendants had resisted the suit on the grounds of maintainability and limitation in the preliminary objection. With these allegations, the plaintiffs had instituted the suit in the Court below on 15.1.1990. 3. The defendants had resisted the suit on the grounds of maintainability and limitation in the preliminary objection. In reply to paras on merits, the defendants had admitted joint and undivided character of the suit land. The plaintiffs had been owners in possession of ¼ share of the suit land. The defendants had been owners in possession of ¾ share of the suit land. The defendants had denied having manipulated reduction of the share of the plaintiffs. The A.C. 1st Grade vide order dated 2.5.1987 had proceeded to partition the suit land as per the shares of the parties. The appeal of the plaintiffs had been dismissed by the Collector vide order dated 13.6.1988. The plaintiffs were not entitled to any relief much less to the discretionary relief of permanent injunction. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiffs are entitled for the declaration that plaintiffs are joint owners in possession of the suit land alongwith defendants No. 1 to 3 and the share of the plaintiffs comes to 1.9 bighas? OPP. 2. Whether the revenue entries showing the plaintiffs owners to the extent of 9 biswas only is wrong and contrary to the real facts? OPP. 3. Whether the partition order of A.C. 1st Grade, Ghumarwin dated 2.5.1987 is based on wrong and illegal facts and is not binding on the right, title and interest of the plaintiffs? OPP. 4. Whether the plaintiffs are entitled for the relief of permanent injunction, as alleged? OPP. 5. Whether the suit is not maintainable? OPD. 6. Whether the suit is not within limitation? OPD. 7. Relief. 5. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs. In appeal, preferred before the learned first Appellate Court, against the judgment and decree of the learned trial Court, the learned first Appellate Court also dismissed the appeal. 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. In appeal, preferred before the learned first Appellate Court, against the judgment and decree of the learned trial Court, the learned first Appellate Court also dismissed the appeal. 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 8.4.2004, this Court, admitted the appeal instituted by the plaintiffs/appellants against the judgment and decree rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question of law:- 1. Whether the learned first appellate Court erred in relying upon the latest entries in the revenue record for which foundation has not been laid which resulted into the miscarriage of justice? Substantial Question of Law No.1 7. The plaintiffs-appellants are the successors- in-interest of Pohlo. Pohlo alongwith his three brothers, namely, Tihru, Mahant and Pessu, had been prior to the conferment of the proprietary rights upon them, cultivating the suit land as tenants under the land owners. The extant entries in the apposite jamabandi, qua the suit land depict therein the share of the plaintiffs, who are successors-in-interest of Pohlo to be to the extent of 1/4th share and of the defendants, one amongst whom is Mahant the brother of Pohlo, and the others who are the successor-in-interest of the other bothers of Pohlo, namely, of Pessu and of Tihru to be also having a share compatible to the plaintiffs-appellants, inasmuch, as, they too having a share to the extent of 1/4th share in the suit land. The entries in the latest Jamabandi qua the suit land are subjected to a frontal attack at the instance of the plaintiffs-appellants. Besides the order rendered by the Assistant Collector Ist Grade, Ghumarwin which has been affirmed in appeal by the Collector under order rendered on 2.5.1987, whereby the suit land was partitioned in equal shares amongst the plaintiffs-appellants, successor-in-interest of Pohlo, Mahant and the successor-in-interest of Tihru and Pessu, has also come be assailed. Besides the order rendered by the Assistant Collector Ist Grade, Ghumarwin which has been affirmed in appeal by the Collector under order rendered on 2.5.1987, whereby the suit land was partitioned in equal shares amongst the plaintiffs-appellants, successor-in-interest of Pohlo, Mahant and the successor-in-interest of Tihru and Pessu, has also come be assailed. The counsel for the plaintiffs-appellants has anchored his impeachment to the aforesaid, on the ground that, with the revelation in Ext.D-2 of Pohlo the predecessor-in-interest of the plaintiffs-appellants, having ½ share in the suit land, whereas Kalan, the successor-in-interest of Tihru, besides defendant No.2 and the predecessors-in-interest of defendants No. 3 and 4 namely Pesu, having been divulged therein to be having an equal proportionate share in the residue, any entry marking a reflection contrary to the reflection of Ex. D-2 is wholly unwarranted or erroneous. Moreso, when a presumption of truth is to be imputed to the entries in the jamabandi Ex. D-2 and theirs having remained unrebutted. The counsel for the plaintiffs-appellants has also further proceeded to foist untenability to the entries in the latest jamabandi on the score of theirs being not in consonance with the reflection in the order of mutation bearing No.578 attested on 23.11.1969 whereby Pohlo, the predecessor-in-interest of the plaintiffs/appellants was ordered to be recorded in the apposite jamabandi to be having a ½ share in the suit property. The submissions as addressed before this Court by the learned counsel for the appellants-plaintiffs though, attractive on their facade, nonetheless they loose much of their sheen, when this Court proceeds to peer beneath the legality of the entries recorded in Ext.D-2. When this Court proceeds to delve into the order preceding the making of the entries comprised in Ext.D-2 for discerning whether it carries an aura of legality, it is unearthed that the said jamabandi is anchored upon the order rendered on 17.10.1966 comprised in Ext.PX. The aforesaid order has been rendered by the Compensation Officer. It is anvilled upon Ext.PY, which is a statement recorded by the predecessor-in-interest of the plaintiffs-appellants, namely, Pohlo, Kalan, the successor-in-interest of Tihru and Pesu, the predecessor-in-interest of defendants No. 3 and 4. A perusal of their statement discloses the factum of theirs conceding to the factum of Pohlo, the predecessor-in-interest of the plaintiffs having a ½ share in the suit property. A perusal of their statement discloses the factum of theirs conceding to the factum of Pohlo, the predecessor-in-interest of the plaintiffs having a ½ share in the suit property. Consequently, it led the Compensation Officer to render a direction of Pohlo, the predecessor-in-interest of the plaintiffs-appellants having ½ share in the suit property. It appears that, hence it sequelled the rendition of an order attesting mutation in consonance thereto. Besides obviously it sequelled the reflection in the jamabandi Ext.D-2 of Pohlo, the predecessor-in-interest of the plaintiffs-appellants having a ½ share in the suit property. However, the 3rd brother of Pohlo namely Mahant, though has been admitted by PW-1 to be alongwith his predecessor-in-interest, besides, with Tihru, Mahant and Pesu having an equal share as tenants under the landowners, do not or omitted to make a statement preceding the rendition of an order rendered by the Compensation Officer, comprised in Ext.PX, revealing therein that he too alongwith Kalam and Pesu had conceded to the factum of Pohlo, the predecessor-in-interest of appellant/plaintiffs having a ½ share in the suit land. As a sequel, when it has not been established that Kalan, Pessu and Pohlo while holding an authorization conferred upon them by defendant No.2, who, too had a compatible right in the suit property as a tenant alongwith them had proceeded to make a statement hence on his behalf too qua the factum of Pohlo having ½ share in the suit property and the other half share being proportionately available to Kalan the successor-in-interest of Tihru and defendants No. 3 and 4 the successors-in-interest of Pessu. As a natural corollary, in the absence of authorization having been conferred upon or accorded to the aforesaid by Mahant admittedly also having a compatible share in the suit property, the statements of Kalan, Pohlo and Pesu cannot be construed to be hence comprising an authorization to the latter to abridge his compatible or an interest in equivalent measure along with them in the suit property. As a natural corollary, the statement comprised in Ex. PY which sequelled rendition of Ex. As a natural corollary, the statement comprised in Ex. PY which sequelled rendition of Ex. PX being not a statement rendered by its makers authorization conferred upon them by Mahant did not hence constitute it to be a statement by or on behalf of Mahant, the other brother of Pohlo, who too had an equal share or a compatible right with the aforesaid, it cannot be construed to be binding upon him nor it can be concluded that it has the effect of eroding his right in the suit property. In other words, the interest of defendant No.2 in the suit property remained uneroded or intact. Moreover, even the Compensation Officer while rendering his order comprised in Ext.PX appears to have misconstrued the impact of the statement comprised in Ext.PY, especially when for want of authorization having been afforded by defendant No.2 to the makers of the statement, the statement recorded/comprised therein abridging or restricting besides abrogating the right of defendant No.2 in the suit land, could not be carried forward adversely as untenably done in Ex. D-2. What further vitiates Ext.PX is the factum of Mahant having remained unpleaded in the proceedings which sequelled rendition of Ext.PX, consequently, when hence he remained unpleaded. He remained un-served and as a natural corollary, did not participate in the proceedings which sequelled rendition of Ext.PX. Consequently, when it was rendered behind the back of defendant No.2, hence, in infraction of the principles of natural justice necessitating his being heard prior to its rendition, rather his neither having participated in the proceedings launched by the Compensation Officer culminating in the rendition of Ext.PX nor with obviously he was neither served nor heard by the authority who rendered Ext.PX, renders it to acquire no force or vitality, in so far as defendant No.2 is concerned. Now since the latter has come to be condemned unheard, as a sequel, the order comprises is void abnitio, with its being gripped with the vice of infraction of the principle of audi altrum partum. As a sequel, it even has no binding effect so as to render tenable the order attesting mutation qua the suit land in favour of the predecessor-in-interest of the plaintiffs, namely, Pohlo to the extent of ½ share nor hence the subsequent jamabandi comprised in Ext.D-2 acquires any vigour or strength. As a natural corollary, when neither Ex. PX nor Ex. As a natural corollary, when neither Ex. PX nor Ex. PY have marshaled any strength, then the order rendered by the Assistance Collector, Ist Grade, Ghumarwin on 2.5.1987 acquires vigour and strength, obviously then, the entries in the jamabandi reflecting the parties at lis to be each having ¼ share in the suit property do not acquire any taint or vice. 8. The effect of the above discussion is that when the anvil or the anchor of the entries in Jamabandi Ext.D-2 gathers no force or momentum. The reflections therein are inconsequential and are rendered rudderless. The arguments built on strength thereof by the learned counsel for the appellant carry no weight, hence discountenanced. 9. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the both the Courts below are maintained and affirmed. Substantial question of law is answered accordingly. No costs.