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2014 DIGILAW 1513 (HP)

Mahajan v. Basanti

2014-10-27

RAJIV SHARMA

body2014
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 20.3.2001 rendered by the learned District Judge, Chamba in Civil Appeal No.38 of 2000. 2. ?Key facts? necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as =plaintiff' for convenience sake) filed a suit for declaration against the respondent-defendant (hereinafter referred to as the ?defendant? for convenience sake) to the effect that defendant No.1 Smt. Basanti was not the daughter of Purshotam and mutation dated 6.4.1996 of the land detailed in the plaint situated in Mohal Dauni Pargana Tissa, District Chamba was wrong, illegal and inoperative. The relief of permanent prohibitory injunction was also claimed for restraining defendant No.1 from interfering with the possession of the plaintiff over the suit land. The suit land was recorded in the revenue record in joint ownership and possession of the plaintiff and proforma defendants together with Purshotam son of Dharam Dass, who was the real brother of the plaintiff and proforma defendants. Purshotam died issueless on 18.3.1995. Defendant Nos. 1 and 2, namely, Basanti and Gopala in connivance with the Secretary Panchayat and the revenue officials got prepared a false Pariwar register of house No.77 of village Sagloga. They also got the suit land mutated in favour of defendant No.1. Defendant No.1 was not the daughter of Purshotam. Mutation qua inheritance of Purshotam could not be attested in her favour. Plaintiff has also claimed ownership and possession of the suit land as heir of Purshotam deceased. Purshotam has left the possession of the suit land since the year 1964. The land was in possession of the plaintiff and proforma defendants. They have become owners by acquiring title by way of adverse possession. 3. Suit was contested by defendant Nos. 1 and 2. They have admitted Purshotam to be son of Dharam Dass. However, it is denied that plaintiff and proforma defendants were the only legal heirs of Purshotam. It is stated that Purshotam was father of defendant No. 1 and she being only legal heir, was entitled to succeed to the share of Purshotam in the suit land. It is denied that the suit land ever remained in adverse possession of the plaintiff. Proforma defendants No. 3 to 5 have admitted the claim of the plaintiff. 4. Issues were framed by the Sub Judge on 26.2.1998. It is denied that the suit land ever remained in adverse possession of the plaintiff. Proforma defendants No. 3 to 5 have admitted the claim of the plaintiff. 4. Issues were framed by the Sub Judge on 26.2.1998. He dismissed the suit on 28.3.2000. Plaintiff preferred an appeal before the District Judge, Chamba. He also dismissed the appeal on 20.3.2001. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law on 7.12.2001: 1. Whether the judgment of the first appellate court is perverse being based on misreading of the pleadings and the evidence of parties and for want of non consideration of the material evidence and pleadings of the parties. 2. Whether the copy of Parivar Register, not maintained in accordance with rule 5 of H.P. Gram Panchayat rules, is admissible in evidence or is relevant to prove the fact in issue. 5. Mr. C.P. Sood, has vehemently argued that both the Courts below have misread the pleadings and evidence. According to him, Pariwar register was not maintained in accordance with Rule 5 of the H.P. Gram Panchayati Rules. 6. Mr. J.R. Thakur has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned counsel for the parties and have perused the record and pleadings carefully. 8. Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. Plaintiff Mahajan has appeared as PW-1. According to him, his father Dharam Dass had four sons, namely, Kanthu, Puran and Purshotam. Purshotam has died. He used to reside in Pargana Sei village Messa. He was married to one Rinku. No issues were born out of wedlock. Defendants No. 1 and 2 were children of Ram Ditta. Purshotam went to village Messa in the year 1964. He was in possession of his share. In the year 1987, Purshotam's wife died. He came back to Patogan. He started residing with the plaintiff. Purshotam was not in possession of the disputed land. From the year 1964 onwards he was in possession of the suit land. Purshotam was registered as member of his family after 1987. He never resided in village Sagloga. In his cross examination, he has admitted that the whole property was joint. He started residing with the plaintiff. Purshotam was not in possession of the disputed land. From the year 1964 onwards he was in possession of the suit land. Purshotam was registered as member of his family after 1987. He never resided in village Sagloga. In his cross examination, he has admitted that the whole property was joint. He has denied that he was married to one Kesari and Parma and Basanti were born out of the marriage between Purshotam and Kesari. 10. PW-2 Krishna Mahajan has deposed that Purshotam was brother of plaintiff. Purshotam has died. She has never seen children of Purshotam. She has shown her ignorance that Purshotam had married. He came back to village Patogan. She has also shown her ignorance about the entries of defendant No. 1 in the Pariwar Register. She has admitted that she was residing in village Bhanjraru. She has no landed property in village Patogan. She has shown her ignorance about the marriage of Purshotam and Kesari. 11. PW-3 Asdulla has deposed that he knew Purshotam. He was brother of plaintiff. Purshotam was living in village Messa. He remained in village Messa for 34-35 years. He returned back to village Patogan after the death of Purshotam. He remained in village Patogan for 7-8 years. He has not seen defendants as Purshotam's children. Plaintiff used to cultivate the land of Purshotam in his absence. In his cross-examination he has admitted that there are 15-20 families of Hindus. He has admitted that disputed land was jointly owned by 4 brothers. He has shown his ignorance about the marriage of Purshotam and Kesari and their children. 12. Defendant Basanti has appeared as DW-1. She has deposed that plaintiff Kesari was her mother. Purshotam was her father. Parma died at tender age. She was married at village Messa by her father Purshotam. She was in possession of the suit land. Kesari was first married to Ram Ditta but after the death of Ram Ditta, she married Purshotam. She has admitted that Purshotam was married to one Rinku and used to cultivate the land of Rinku. She was born to Kesari at village Patogan. 13. DW-2 Devi Chand has supported the version of DW-1. According to him, defendant No.1 was daughter of Purhsotam. Purhostam had married Basanti. Purshotam married of Basanti at village Sagloga. She was also given dowry by Purshotam. She was married in his presence. She was born to Kesari at village Patogan. 13. DW-2 Devi Chand has supported the version of DW-1. According to him, defendant No.1 was daughter of Purhsotam. Purhostam had married Basanti. Purshotam married of Basanti at village Sagloga. She was also given dowry by Purshotam. She was married in his presence. There was no Barat. It was a simple marriage. 14. DW-3 Lal Chand has deposed that Kesari was married to Purshotam. Purshotam had two children, namely, Basanti and Parma. Parma died at tender age. He has admitted in his cross-examination that marriage of Purshotam and Kesari took place in his presence. He was 15- 16 years old at that time. 15. Plaintiff has produced Ext. P-1 and Ex.P-2 copies of Jamabandis for year 1990-91, Ext. P-3 copy of mutation, Ext. P-4, entry of Pariwar Register, Ext. P-5 certificate of pariwar register of the plaintiff, Ext. P-6 certificate of pariwar register of Purshotam, Ext. P-7, Pariwar register of defendant No.1 after marriage and Ext. P-8 certificate of pariwar register of plaintiff's family. 16. PW-2 Krishna Mahajan does not belong to village Patogan. Similarly, PW-3 Asdulla is the resident of village Patogan. Plaintiff has not examined any witness from village Messa where Purshotam resided for more than 30-35 years. DW-1 has categorically deposed that she was married by her father Purshotam. This fact has been corroborated by DW-2 Devi Chand. DW-2 Devi Chand is an independent witness. DW-3 Gulab Chand uncle of defendant No.1 has deposed that Kesari was married to Purshotam. According to him, he was present at the time of marriage of Purshotam and Kesari. 17. Now, as far as Pariwar register is concerned, PW-1 in his statement has not deposed that how entry in the pariwar register was made. Plaintiff has failed to prove that defendant in connivance with the Secretary Panchayat and revenue officers has got a false entry made in the Pariwar register. Ext. P-4 may not be strictly as per the prescribed form. However, the Court has to see the substance and not the form. Moreover, the plaintiff has not placed any independent witness to rebut the entries made in the Parivar register. 18. Now, as far as mutation dated 6.4.1996 is concerned, the plaintiff was issued notice at the time of mutation. He was not present at that time. However, the Court has to see the substance and not the form. Moreover, the plaintiff has not placed any independent witness to rebut the entries made in the Parivar register. 18. Now, as far as mutation dated 6.4.1996 is concerned, the plaintiff was issued notice at the time of mutation. He was not present at that time. Plaintiff though has taken a plea of adverse possession but he has not proved the same. According to the plaintiff, suit land was shown in joint possession of plaintiff and Purshotam. In case of joint possession, adverse possession cannot be exercised unless plea of ouster is taken specifically. However, this plea has not been taken by the plaintiff. Plea of adverse possession has not been supported by any of the witness of the plaintiff. The Court has already noticed that PW-2 Krishna Mahajan and PW-3 Asdulla were not residents of village Messa. They have not stated that plaintiff was in exclusive possession of suit land. Defendant has led sufficient evidence that she was daughter of Purshotam. Plaintiff could not prove that the entries made in the Pariwar register Ex.P-4 were wrong. Plaintiff has also failed to prove his adverse possession over the suit land. 19. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties. The substantial questions of law are answered accordingly. 20. Consequently, in view of the observations and discussion made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.