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2014 DIGILAW 1728 (HP)

Banka Ram v. Des Raj

2014-11-24

SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, Judge This appeal is directed against the impugned judgment and decree, rendered on 02.09.2003 by the learned District Judge, Hamirpur, H.P., in Civil Appeal No. 32 of 1997, whereby, the learned District Judge allowed the appeal preferred by the plaintiff/respondent and reversed the findings of the learned trail Court rendered on 17.09.1997 in Civil Suit No. 239 of 1992. 2. Briefly stated the facts of the case are that the original plaintiff Kangru Ram filed the suit against the defendants Milkhi Ram and Prabhi for declaration and permanent prohibitory injunction. It has been averred that the suit land comprised in khata No.40, Khatauni No. 63, khasra Nos. 416, 419, 420, 570, 648, kita 5 measuring 15 kanals, 4 marlas, situated in Tika Jhatwar, Maouza Ugialta, Tehsil and District Hamirpur, H.P. The plaintiff had claimed himself as co-owner in possession of the suit land to the extent of ¼ share. The suit land has been pleaded to be in joint co-ownership and possession of the parties as no partition has taken place in accordance with law and the revenue entries in the column of possession in favour of the defendants as tenant at will are wrong and illegal and thereby the same are not binding on the plaintiff. It has been further pleaded that the revenue entries have been wrongly changed in connivance with the revenue officials by the defendants and that the defendants have threatened to dispossess the plaintiff forcibly on the basis of wrong entries with respect to the possession. It has been further pleaded that during consolidation operation over the suit land in March, 1992, he filed an application before the Consolidation Officer which was dismissed on 15.6.1992. The plaintiff has also pleaded in alternative that in case during pendency of the defendants dispossessed the plaintiff from the suit land, a decree of possession be also passed. Hence the suit. 3. The plaintiff has also pleaded in alternative that in case during pendency of the defendants dispossessed the plaintiff from the suit land, a decree of possession be also passed. Hence the suit. 3. The defendants/appellant contested the suit and filed the written statement wherein the defendants have claimed exclusive possession over the suit land since the time of their ancestors in the capacity of tenants at will without any rent as the defendants have given Shamlat land in village Dugli to the plaintiff to the extent of 5/26 share which comes to 1 kanal 15 marlas and in addition to it, abadi in Tika Dabrera to the extent of 1/64 shares which comes to 10 marlas and thereby have pleaded the entry of possession in their favour to be legal and correct which was incorporated during the life time of Gopala, the predecessor-in-interest of the parties. The defendants have also pleaded the separate possession of the parties to their respective share since their ancestors. The defendants have pleaded the exchange or arrangement between the processor-in-interest of the parties and in alternative of no such exchange or arrangement having been proved then the defendants have claimed the complete ouster of the plaintiff from the suit land and thereby claiming adverse possession to the interest of the plaintiff. 4. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is joint owner in possession of the suit land, as alleged? …..OPP 2. Whether the plaintiff is entitled to the relief of injunction as prayed for? ……OPP 3. Whether the suit land to the extent of the share of plaintiff is also in the ownership and possession of defendants by way of exchange as alleged? ….OPD 4. Whether the defendants being in possession have become owners of the suit land by way of adverse possession?……OPD 5. Relief. 5. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff (s)/respondent (s). In appeal, preferred against the judgment and decree of the learned trial Court by the plaintiff (s)/respondent (s) before the learned first Appellate Court, the learned first Appellate Court allowed the appeal and reversed the findings recorded by the learned trial Court. 6. In appeal, preferred against the judgment and decree of the learned trial Court by the plaintiff (s)/respondent (s) before the learned first Appellate Court, the learned first Appellate Court allowed the appeal and reversed the findings recorded by the learned trial Court. 6. Now the defendant/appellant has 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 19.12.2003, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree rendered by the learned first Appellate Court on the hereinafter extracted substantial questions of law:- 1. Whether the Lower Appellate Court has taken wrong view of law in holding the findings on issue No.3, which was returned against the defendants-appellants have attained finality, as the defendants did not challenge the same in appeal, especially when the suit filed by the plaintiff-respondent was dismissed? 2. Whether the Courts below have misunderstood the controversy by misreading the plea raised by the defendants in the written statement regarding complete ouster of the plaintiff-respondent from the joint property? Have not both the courts below applied wrong principles of law in erroneously negativing the case put forth by the defendants/-1ppellant, by holding that the adverse possession is not proved? 3. Whether the Lower Appellate Court has ignored the revenue entries which have the presumption of truth by taking wrong view of law that the basis of exchange was not proved, by ignoring the admission of the plaintiff-respondent accepting the exclusive possession of the defendants-appellant over the suit land? Substantial questions of Law No.1 to 3. 7. The jamabandi qua the suit land pertaining to the year 1953-54 comprised in Ex.DB reflects the factum of the suit land being recorded in the joint ownership of the parties at contest. However, it is recorded in possession of one Gopala and Kangaru, in their capacity as co-owners. The suit land is located in Tika Jhatwar. The parties at contest also jointly owned the property located at Tikka Dugli. The subsequent jamabandis qua the suit land comprised in Exts.DC, DD, DE, DF, DG, DH and Exts. P-2 to P-5 and Ex. However, it is recorded in possession of one Gopala and Kangaru, in their capacity as co-owners. The suit land is located in Tika Jhatwar. The parties at contest also jointly owned the property located at Tikka Dugli. The subsequent jamabandis qua the suit land comprised in Exts.DC, DD, DE, DF, DG, DH and Exts. P-2 to P-5 and Ex. D-1, however, contrary to the reflection in the jamabandi for the year 1953-54 comprised in Ex.DB, wherein though the suit land is recorded in the joint ownership of the parties at contest and Gopala and Kangaru are displayed to be in possession thereof, reflect the defendants to be in exclusive possession thereof being tenants under Gopala and Kangaru. Besides, in the column of rent in the jambandis aforesaid a communication exists of the possession of the defendants qua the suit land having accrued on account of exchange thereof inter se them and the plaintiff with the land at Tikka Dugli. 8. The bedrock of the controversy hinges upon the factum of the legality of the entries comprised in the jamabandis aforesaid with reflections therein of the defendant being tenants in possession of the suit land under Gopala and Kangaru and such possession has come to be acquired by them in pursuance to an exchange having been effected inter se the plaintiff and the defendants, inasmuch as, the plaintiff having in pursuance thereto acquired possession of the land in Tikka Dugli, whereas, the defendants having acquired possession of the suit land located in Tikka Jhatwar. However, the efficacy of the entries aforesaid lacks both legal vigour and tenacity. The reason for concluding as aptly done by the learned first Appellate Court is of no probative and tenacious proof having erupted comprised in the rendition of a valid order by the authority/competent revenue officer in pursuance where to the entries aforesaid were recorded in the jamabandis aforesaid. The reason for concluding as aptly done by the learned first Appellate Court is of no probative and tenacious proof having erupted comprised in the rendition of a valid order by the authority/competent revenue officer in pursuance where to the entries aforesaid were recorded in the jamabandis aforesaid. In the absence of evidence comprised in the display by the apposite records existing before this Court of the entries comprised in the jamabandis aforesaid with reflection therein of the defendants having acquired possession of the suit property in pursuance to an exchange having been effected inter se them and the plaintiff for constituting them to be garnering an aura of sanctity, rather renders the entries to have been incorporated without any legal authorization and, as such, construable to be nonest and void as aptly done by the learned first Appellate Court. Even otherwise, there being omission of adduction of cogent evidence comprised in the adduction into evidence of the exchange deed purportedly executed/entered inter se the parties at contest, whereunder the plaintiff acquired the possession of the land situated at Tika Dugli and the defendants acquired possession of the suit land situated at Tika Jhatwar, renders the contention as raised by the defendants/appellant of theirs having acquired possession of the suit land situated in Tikka Jhatwar in pursuance thereto, to be legally frail and of little probative worth. Naturally, then the aforesaid entries with portrayal therein in the jamabandis aforesaid are to be concluded to be arbitrarily recorded and of no significance in whittling or jeopardizing the rights of the plaintiff in the suit property with his being recorded as co-owner alongwith the defendants in the jamabandi for the year 1953-54 which precedes the subsequent jamabandis with untenable and erroneous reflections therein of the defendants being in possession thereof in pursuance to an exchange inter se the parties encompassing the suit land and the land at Tika Dugli. Consequently, the entries in the jamabandis subsequent to the jamabandi for the year 1953-54, for reiteration when not having been proved to be preceded by a valid order of an authorized revenue officer, gain no leverage. Consequently, the entries in the jamabandis subsequent to the jamabandi for the year 1953-54, for reiteration when not having been proved to be preceded by a valid order of an authorized revenue officer, gain no leverage. Moreover, the reflection of the defendants/appellant as tenants qua the suit land under the plaintiff, too erodes the efficacy of the entries in the jamabandis comprised in Ex.DC onwards especially when too in the respective columns of ownership thereof, the suit land has been reflected to be in joint ownership of the parties at contest, yet with the defendants having been recorded to be in exclusive possession thereon in the capacity as tenants, is in dire detraction to and antithetical to the principle of the joint/co-ownership which embodies, hence, the rule of community of title and unity of possession inhering in all co-khatedars or co-owners, as the parties at contest are reflected in the jamabandis subsequent to the jambandi for the year 1953-54. For amplification when the parties at contest in the jamabandis succeeding to the jamabandi for the year 1953-54 are also recorded as joint owners of the suit land, the effect and the import of the said entries is of theirs inhering in the joint owners, who are the parties at contest, a right to claim community of title and unity of possession qua each inch of property recorded in their joint ownership, it is enigmatic in what manner with, hence, the mutually contradictory status reflected therein to be embodied in the defendants, hence, as such, theirs sequeling affliction to the rule of joint ownership vesting a title as co-owner even in the defendants as also untenably diluting their rights as coowners in the joint suit property, then came to be recorded. Therefore, the defendant cannot claim or assert the status as untenably reflected in the jamabandis succeeding to the jambandi for the year 1953-54 of theirs being tenants upon the suit land and that too under the plaintiff, who too like them is recorded as co-owner in the suit property. Therefore, the defendant cannot claim or assert the status as untenably reflected in the jamabandis succeeding to the jambandi for the year 1953-54 of theirs being tenants upon the suit land and that too under the plaintiff, who too like them is recorded as co-owner in the suit property. In other words, the reflection of the defendants/appellant as tenants in exclusive possession of the suit property in the jamabandis succeeding to the jamabandi for the year 1953-54, though at the same time marking an amplifying reflection therein of theirs being recorded as joint owners of the suit land alongwith the plaintiff, is a reflection which does not appeal to the embodied sacrosanct legal canon of joint ownership and its inhering in all joint owners inclusive of the defendants/appellant equivalent and compatible rights as such over the suit land. Consequently, the entries marking the fact of the defendants/appellant being in possession of the suit property as tenant in pursuance to an exchange effected inter se them and the plaintiff, inasmuch as in pursuance thereto while they having abdicated their possession in favour of the plaintiff in Tikka Dugli and having acquired possession of the suit land from the plaintiff at Tikka Jhatwar, more so, when the factum of such exchange for the reasons aforesaid and for the further reason when there is no attestation of mutation in pursuance to the exchange purportedly entered into inter se the parties at contest nor consequent reflections in the apposite jambandis, are of no significance, rather render the plea of the defendants of theirs having acquired possession of the suit property from the plaintiff in pursuance thereto to be an unacceptable and frail submission. Further more, it ought not to be omitted to be also bespoken that the exchange even if it had been entered or effected inter se the parties at contest then the jamabandis subsequent to Ex.DB which is the jamabandi for the year 1953-54, would have portrayed deletion of the name of the plaintiff from the column of ownership and a manifest corresponding reflection in the remarks column of the jamabandi or in its column of ownership of the defendants/appellant having acquired the suit land by way of exchange and theirs having become exclusive owner thereof in pursuance thereto. However, the above reflections are omitted to be communicated in jamabandis subsequent to the jamabandi for the year 1953-54, as such omission of aforesaid reflections also reinforcingly, hence, appears to spur an inference that there was no exchange entered into inter se the parties at contest nor also it has to be obviously concluded that the entries reflecting the defendants to have acquired the possession as tenant of the suit property in pursuance thereto have no legal validity or sinew. 9. The learned counsel for the defendants/appellant has argued that with there being a plea in the written statement, of the defendants being in possession of the suit property in complete ouster of the plaintiff is a plea compatible to the plea of theirs having acquired title to the suit land by adverse possession. However, assuming that the plea of complete ouster of the plaintiff/respondent from the suit land at the instance of the defendants/appellant is comprised in the written statement of the defendants/appellant, inasmuch as theirs being in possession of the suit land in complete ouster of the plaintiff, who even did not participate in the mesne profits and having never objected to their exclusive possession over the suit land, is equivalent to a communication of plea of acquisition of title to the suit land by adverse possession. Nonetheless, though the factum of pleading of complete ouster of the plaintiff/respondent by the defendants/appellant does exist in the written statement of the defendants/appellant, yet the said plea has been ambiguously pleaded, inasmuch as it does not take within its fold, of such complete ouster of the plaintiff from the suit land, though equivalent to an assertion by the defendants of theirs having acquired title to the suit land by adverse possession, the legally enshrined germane fact as to when such overt act marking the inception or commencement of possession of the defendants/appellant with an animus possidendi, arose with precision with exactitude in time. In the face of imprecise averments in the written statement of the defendant qua the commencement of their possession over the suit land with an animus possidendi, renders the said plea to be construable to be nebulously or loosely phrased constituting it to be not, hence, comprising the raising of an appositely communicated contention at the instance of the defendants/appellant of theirs having acquired title to the suit land by prescription, inasmuch as theirs having by their overt acts commencing with an animus possidendi erupting at a precisely communicated time gained possession of the suit land and continuously thereafter with a hostile animus towards the defendants, retained it. Non existence of precise communications qua the commencement with exactitude in time of adverse possession by the defendants qua the suit land comprised in the commission of overt acts by the defendants/appellant with an animus possidendi, portrays, hence, that the plea has been loosely phrased and does not, hence, also embody the necessary ingredients for its constituting a tenable plea of the defendants/appellant, of theirs having acquired title to the suit property by adverse possession. Therefore, the evidence, if any as exists on record comprised in the admissions of the plaintiffs in their respective testimonies or of the defendants qua the exclusive possession of the defendant over the suit land, does not give succor to the said plea, inasmuch as it being beyond pleadings, rather possession, if any, of the defendants/appellant over the suit land, even if exclusive, yet given the fact that for the reasons attributed hereinabove, the jamabandi for the year 1953-54 comprised in Ex.DB has been alone construed to be tenable and its manifesting the fact of the parties at contest being recorded therein to be in joint ownership, naturally the legal incident thereof is of theirs enjoying compatible and equal right with each other qua every inch of the suit land, as such, possession, if any, even if exclusive of the defendants/appellant over the suit land is to be construed to be possession on behalf of the plaintiff/respondent as well. Such possession does not, when the entries subsequent to Ex. Such possession does not, when the entries subsequent to Ex. DB have been construed to be arbitrary and nonest, as such, imputing no right in the defendants as tenants over the suit property, obviously, then when the entries in Ex.DB prevail, constitute possession donning the mantle of or vesting a right either as tenants or as prescriptive owners in the defendants. As such, the sacrosanct conclusion is that the parties enjoy rights common/joint with each other and have joint interest over the suit land especially when the entries existing in Ex.DB remain un-eroded by the subsequent entries in the subsequent jamabandis which latter entries have been concluded to be while not having been preceded by any valid order of an authorized officer to be nonest. 10. Even though, the learned counsel for the defendants/appellant has contended that the learned first Appellate Court has affirmed the findings recorded by the learned trial Court qua the factum of no cogent evidence and convincing proof erupting qua the factum of the suit land having been acquired by the defendants/appellant in pursuance to an exchange having been effectuated or entered inter se them, as such, besides when while affirming, such findings, the learned first Appellate Court had concluded that it necessitates affirmation on the score of the defendants/appellant not having assailed it before the learned first Appellate Court, hence, imbuing it with finality, which manner of affirmation by the learned trial Court has been contended to be untenbale. Assuming that there may be purported untenability foisted to the factum of affirmation afforded by the learned first Appellate Court to the aforesaid findings recorded by the learned trial Court, nonetheless, the effect thereof fades in the face of the learned first appellate Court having dwelt ad nauseam and exhaustively qua the validity and sustainability of such findings, by an advertence to the compatible proof thereto, in sequel to which exercise it concluded the exchange as set up by the defendants/appellant to foist tenability to the entries in the jamabandis subsequent to the one recorded in Ex.DB, acquire no tenability or legality. Consequently, when the entire issue has been thrashed out at ad nauseam by the learned first Appellate, it estops the learned counsel appearing for the appellant/defendant to contend that the effect thereof has been dealt with in a slip shod and cryptic manner, besides without application of mind by the learned trial Court rather the said fact when has been dealt with in a thorough as well as in an elaborative manner and besides on a circumspect analysis of the evidence on record, hence, the contention of the learned counsel appearing for the appellant is rejected. Consequently, the findings of the learned first Appellate Court are based upon a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. Accordingly, the substantial questions of law No. 1 to 3 are answered against the defendants/appellant and in favour of the plaintiff/respondent. 11. The result of the above discussion is that the appeal preferred by the defendants/appellant is dismissed and the judgment and decree rendered by the learned first Appellate Court is affirmed and maintained. Record of the learned Courts below be sent back forthwith. All pending applications, if any, are also disposed of. No costs.