Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1682 (HP)

Daulat Ram Thakur v. State of Himachal Pradesh

2014-11-19

RAJIV SHARMA

body2014
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 20.7.2002 rendered by the District Judge, Solan in Civil Appeal No. 9-S/13 of 2001. 2. “Key facts” necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) filed a suit for declaration against the respondent-defendant (hereinafter referred to as the “defendant” for convenience sake). According to the plaintiff, the suit land was purchased by him from Raja Durga Singh, the then owner of the suit land at village Kather, Solan. The Musabi and Aks of the lands of village were torn. Thus, the land was purchased as described by boundaries in the registered sale deed dated 12.1.1971 Ext. PW1/A. The land was mentioned as Khasra No. 227/470/2014/2001 min measuring 109-19 and 227/471/1991 as 6 biswas and the boundaries were specifically mentioned. According to the plaintiff, Khasra Nos. 676, 677, 678, 679 and 660 were owned and possessed by him. According to him, as per law the boundaries were to prevail over area as Musabi and Aks being torn and the actual area was mentioned by guess work. 3. The suit was contested by the defendant. According to the defendant, plaintiff has purchased land measuring 110 bighas 5 biswas vide registered sale deed No.6 dated 16.1.1971. The mutation was attested. Land was sold to the plaintiff by annexing Tatima with the sale agreement. Defendant has specifically denied that the plaintiff has purchased suit land bearing Khasra Nos. 676, 677, 678, 679 and 660. Defendant has also denied possession of the plaintiff over the suit land. The initiation of the proceedings, under Section 163 of the H.P. Land Revenue Act, was also justified. The plea of adverse possession was specifically denied. 4. Learned Senior Sub Judge framed issues on 11.8.1994. He decreed the suit on 15.12.2000. Defendant preferred an appeal before the District Judge, Solan against the judgment and decree dated 15.12.2000. He allowed the same on 20.7.2002. Hence, the present Regular Second Appeal. It was admitted on 26.9.2002 on the following substantial questions of law: 1. “Whether the impugned judgment and decree of the first appellate court is against the settled principle of law that in case of conflict in area and boundary of the land in dispute, the boundary would prevail? 2. Hence, the present Regular Second Appeal. It was admitted on 26.9.2002 on the following substantial questions of law: 1. “Whether the impugned judgment and decree of the first appellate court is against the settled principle of law that in case of conflict in area and boundary of the land in dispute, the boundary would prevail? 2. Whether the first appellate court relied upon inadmissible evidence which if excluded would have resulted in opposite view? 3. Whether the first appellate court erred and misread the revenue record to hold that the land, subject matter of dispute, fell in allotable pool?” 5. Mr. Neeraj Gupta, learned counsel for the appellants has supported the judgment and decree dated 15.12.2000 passed by the learned Senior Sub Judge, Solan. According to him, in case of conflict in area and boundary dispute, the boundaries must prevail as against the measurement. 6. Mr. R.P. Singh, learned Assistant Advocate General has supported the judgment and decree dated 20.7.2002 passed by the learned District Judge. 7. I have heard learned counsel for the parties and have gone through the record carefully. 8. Since all the substantial questions of law are interconnected and interlinked, the same are taken together for determination to avoid repetition of discussion of evidence. 9. Plaintiff has appeared as PW-1. According to him, he has purchased the land from Raja Durga Singh in the year 1971 vide sale deed. The Musabi, Latha and Aks were torn. The possession was delivered to him. He has proved copy of sale deed Ex. PW-1/A. In the settlement proceedings wrong entries were recorded. He has filed an application before the Tehsildar qua wrong entries recorded by the settlement authorities. The entries qua four Khasra Numbers were decided in his favour and qua many Khasra numbers, i.e. Khasra numbers 676, 677, 678, 679, 660, he was directed to file a suit. He was in possession of the suit land. He was never dispossessed. He has proved copy Ext. 1/B and copy of Aks Shajra Ext. PW-1/C. In his cross-examination, he has deposed that he has purchased land measuring 110 bigha 5 biswas of land by way of sale deed. The land was not demarcated at any point of time. He has also admitted that adjoining to this land, the boundaries of the common land are situated. 10. PW-2 Shamsher Singh has testified that he has seen the suit land. The land was not demarcated at any point of time. He has also admitted that adjoining to this land, the boundaries of the common land are situated. 10. PW-2 Shamsher Singh has testified that he has seen the suit land. The suit land was owned by Raja Durga Singh. The state has no legal right, title or interest over the suit land. He was not aware about the settlement proceedings. He has admitted that his father was tenant of Raja Durga Singh. 11. PW-3 Dr. P.C. Sharma has deposed that he has seen the suit land. His land was adjoining to the suit land measuring 9 bighas. According to him, Lathha and Musabi were torn. 12. PW-4 Joginder Singh has testified that he was General Attorney of Raja Durga Singh. The land was sold to plaintiff. The Musabi and Latha were torn. The suit land was described by boundaries and the plaintiff was also put in possession of the suit land. The plaintiff has not encroached upon the government land. 13. PW-5 Mansa Ram has testified that he remained Field Kanungo from 1976 to 1979. The application was filed before him for demarcation by Hira Nand. He went to the spot. He inspected the spot. The revenue record was torn and Tatima and Musabi were not available. Thus, the demarcation could not be carried out. 14. According to Ext. PW-1/A, the plaintiff has purchased Khasra No. 2014/2001 min measuring 109 bighas and 19 biswas and Khasra No. 1991 measuring 6 biswas. It is stated in Ext. PW-1/A that shajra and musabi were torn. There is no reference of Khasra Nos. 676, 677, 678, 679 and 660 in the sale deed Ext. PW-1/A. The plaintiff has not led any tangible evidence to show that Khasra Nos. 676, 677, 678, 679 and 660 were the new Khasra numbers of old Khasra numbers 2014/2001 min or 1991. 15. Mr. R.P. Singh, learned Assistant Advocate General has drawn attention of the Court to Ext. PX-12. According to Ext. PX-12, old Khasra numbers of Khasra Nos. 660, 676, 677, 678 and 679 were 2014/2001 min, 2109/2003/2 min, 2109/2003/2 min, 2109/2002/2 min and 2109/2002/2 min. None of the PWs have deposed about the old and new Khasra numbers of the suit land. Rather it is established from PW-1/B Jamabandi for the year 1989-90 that defendant is owner in possession of the suit land. 660, 676, 677, 678 and 679 were 2014/2001 min, 2109/2003/2 min, 2109/2003/2 min, 2109/2002/2 min and 2109/2002/2 min. None of the PWs have deposed about the old and new Khasra numbers of the suit land. Rather it is established from PW-1/B Jamabandi for the year 1989-90 that defendant is owner in possession of the suit land. The total area sold to the plaintiff was 110 bighas and 5 biswas as per Ext. PW-1/A. PW-1 to PW-5 have not stated about the Khasra numbers which were in possession of the plaintiff. 16. The plaintiff has not led any tangible evidence to prove adverse possession. The ingredients of adverse possession are required to be pleaded and proved. None of the witnesses has deposed that when possession of plaintiff became hostile to the true owner. It was necessary for the plaintiff to prove that his possession was hostile to the true owner by leading cogent and reliable evidence. The plaintiff has rather not led any evidence to rebut entries in Ext. PW-2/B. It was necessary for him to prove that his possession was peaceful, uninterrupted, hostile, and open to the knowledge of true owner. 17. Learned Single Judge of Madras High Court in Subhayya Chakkiliyan vs. Manjam Muthia Goundan and another, AIR 1924 Madras 493, has held that ordinarily when a piece of land is sold with definite boundaries, unless it is very clear from the circumstances surrounding the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must prevail as against the measurements. 18. The Division Bench of Calcutta High Court in Shailendranath Mitra vs. Girijabhushan Mukherji, AIR 1931 Calcutta 596, have held that where there is a seeming inconsistency as between boundaries and the area stated in the instrument, it is permissible to have recourse to extrinsic evidence and evidence of user by acts of parties for the purpose of gathering the real intention of the parties to the instrument. 19. Their Lordships of the Hon'ble Supreme Court in K.S. Nanji and Co. vs. Jatashankar Dossa and others, AIR 1961 SC 1474 have held that a map referred to should be treated as incorporated in the lease and as forming part of the document. 19. Their Lordships of the Hon'ble Supreme Court in K.S. Nanji and Co. vs. Jatashankar Dossa and others, AIR 1961 SC 1474 have held that a map referred to should be treated as incorporated in the lease and as forming part of the document. Where the map is drawn to scale and the boundary is clearly demarcated, the Courts are right in accepting the boundaries drawn in the plan without embarking upon and attempt to correct them with reference to the revenue records. 20. Mr. Neeraj Gupta has also strongly relied upon Piyunglan Devi vs. Kashmir Chand, 1991 (a) Current Law Journal (H.P.) 412. There is no dispute with the proposition that when there is conflict in area and boundary dispute, boundary prevails. However, in the instant case, plaintiff has failed to link that the suit land was purchased vide Ex.PW-1/A. Thus, this abstract principle of law is not applicable in the present case. 21. In the present case, Khasra numbers alongwith boundaries have been given. According to recital in Ext. PW-1/A, the land was measured at the time of giving possession to the plaintiff. The judgment cited by Mr. Neeraj Gupta, learned counsel for the plaintiff are not applicable to the facts and circumstances of the present case for the simple reason that plaintiff could not succeed in proving that Khasra Nos. 676, 677, 678, 679 and 660 were purchased by him vide Ext. PW-1/A. The stand of the plaintiff is contrary to the revenue record Ext. PX-12. The judgments cited by Mr. Neeraj Gupta could be applicable in case plaintiff had succeeded in establishing that he has purchased these Khasra numbers alongwith Khasra nos. 2014/2001 and 1991. It is also not the case of the plaintiff that he is in possession of land measuring less than 110 bighas. 22. The first appellate Court has correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgment passed by first appellate Court below. The substantial questions of law are answered accordingly. 23. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application, if any, also stands disposed of. No costs.