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2014 DIGILAW 1909 (HP)

Rajender Sharma v. Roop Ram

2014-12-15

DHARAM CHAND CHAUDHARY

body2014
JUDGMENT : Dharam Chand Chaudhary, J. Challenge herein is to the judgment and decree dated 18.12.2002, passed by learned District Judge, Solan, in Civil Appeal No. 20-S/13 of 2001, affirming thereby the judgment and decree dated 15.11.2000 passed by learned Senior Sub Judge, Solan, in Civil Suit No. 298/1 of 1991 and dismissed the appeal. 2. The bone of contention in the present lis is land measuring 5-10-0 Bighas, bearing Khasra No.111/60/1 situated in village Sharanoo, Pargana Bharoli Khurd, Tehsil and District Solan. The nature of the suit land is Ghasni. Original owners thereof were DW-5 Satinder Singh Kaur etc. Shri Kirpa Ram, the predecessor-in-interest of the plaintiffs was allegedly in possession of the entire suit land. The plaintiffs, on his death, claim to have inherited the same. Mutation was sanctioned and attested in their favour. 3. Respondent No.1-defendant Roop Ram allegedly started interference over a portion of suit land bearing Khasra No.111/60/1 on the basis of wrong entries in the revenue record. He managed the attestation of the mutation of the suit land in his name on 14.6.1990. The Assistant Collector, 2nd Grade, who has attested the mutation, was not competent to do so. Therefore, the plaintiffs sought declaration to the effect that entries in the revenue record, showing respondent No.1-defendant in possession of the suit land bearing Khasra No.111/60/1 measuring 5-10-0 Bighas are wrong, illegal and void, hence not binding upon the plaintiffs. As a consequential relief, decree for possession was also sought to be passed. 4. Respondent No.1-defendant has contested the suit, on the grounds, inter-alia that the suit land throughout remained in his possession in the capacity of tenant and thereafter he has become owner thereof under the provisions of Land Reforms Act. On the basis of an admission made by the plaintiffs themselves, the entries qua the suit land in the revenue record were corrected in his favour and the claim, as now laid, is stated to be wrong. 5. Learned trial Court has framed the following issues and put the parties on trial: 1. Whether the plaintiffs and the proforma defendant are owners of the suit land, as alleged? OPP. 2. Whether there is a validly executed Will in favour of the plaintiffs and proforma defendant regarding the land? OPP 3. Whether the revenue entries regarding the suit land in the name of defendant Roop Ram are wrong and illegal, as alleged? OPP. 4. Whether the plaintiffs and the proforma defendant are owners of the suit land, as alleged? OPP. 2. Whether there is a validly executed Will in favour of the plaintiffs and proforma defendant regarding the land? OPP 3. Whether the revenue entries regarding the suit land in the name of defendant Roop Ram are wrong and illegal, as alleged? OPP. 4. Whether the plaintiffs are entitled to the possession of the suit land as alleged? OPP. 5. Whether defendant No.1 Roop Ram has been a tenant on the suit land and has now become owner thereof by operation of law? OPD-1. 6. Relief. 6. On appreciation of the oral as well as documentary evidence produced on both sides, the suit was dismissed vide judgment and decree passed on 15.11.2000. The plaintiffs preferred an appeal against the judgment and decree passed by learned trial Court in the Court of learned District Judge, Solan, inter alia, on the grounds of misreading and mis-appreciation of the evidence available on record and also that the judgment and decree passed by learned trial Curt was not legally sustainable. According to them, after rejection of Mutation No.22, mutation of the suit land could have not been attested subsequently in favour of the defendant. Besides, they preferred two separate applications, one under Order 41, Rule 25 , whereas another under Order 41, Rule 27 CPC, with a prayer to frame additional issues and seeking permission to produce additional evidence in the lower appellate Court. Learned Lower Appellate Court on appreciation of the evidence and also the pleadings on record has not only dismissed the applications so filed, but also the main appeal and affirmed the judgment and decree passed by learned trial Court. 7. The legality and validity of the judgment and decree under challenge has been questioned more or less on the similar grounds as were raised before learned lower appellate Court with further addition that learned lower Appellate Court has erroneously dismissed the applications for settlement of additional issues and allowing the appellants-plaintiffs to produce additional evidence, without appreciating that the settlement of additional issues and production of additional evidence was required for just decision of the case. The objection that the Assistant Collector, 2nd Grade was not competent to attest the mutation of the suit land in favour of the defendant and as such the same being without any authority or jurisdiction has also not been appreciated in its right perspective. Also that undue weightage has been given to the factum of an application having been filed by one Shri Negi Ram for correction of the revenue entries in the capacity of general attorney of the plaintiffs without there being any evidence available on record in support thereof. It is pointed out that proprietary rights in respect of the suit land had been acquired by deceased Kirpa Ram and on his death the suit land devolved upon the plaintiffs by way of Will, he had executed in their favour. The same has not been taken into consideration and on the other hand, both Courts below have erred while holding that the defendant was in possession of the suit land in the capacity of tenant. The factum of earlier application filed by the defendant for correction of revenue entries qua the suit land having been dismissed and as such there was no occasion to the Assistant Collector, 2nd Grade, to have passed an order for correction of such entries in a subsequent application, is also stated to be not taken into consideration. 8. Order of admission passed in this appeal on 18.8.2004 reads as follows: "After hearing the learned counsel and perusing the record, in my opinion, various substantial questions of law detailed in the grounds of appeal arise for determination in this appeal. Appeal admitted." 9. It is seen that the substantial questions of law, arising in this appeal, were not specifically framed. The appeal was, therefore, heard afresh on 28.8.2012 for the purpose of admission and admitted on the following substantial questions of law: 1. Whether mutation Ext.)P-5 regarding the conferment of proprietary rights is illegal, without jurisdiction, null and void as A.C. 2nd Grade had no jurisdiction to attest the same? 2. Whether both the Courts have recorded erroneous and perverse findings by relying on inadmissible evidence i.e. Ext.DW-2/B, previous statement of Shri Nagi Ram DW-3, made before revenue officer which was hit by the provisions of Section 145 of the Evidence Act? 3. 2. Whether both the Courts have recorded erroneous and perverse findings by relying on inadmissible evidence i.e. Ext.DW-2/B, previous statement of Shri Nagi Ram DW-3, made before revenue officer which was hit by the provisions of Section 145 of the Evidence Act? 3. Whether both the courts have committed grave illegality in holding the defendant-respondent to be tenant especially when the defendants were not admitting the plaintiff-appellant to be owner and staked the claim of tenancy under original owners, without proving the contract of tenancy and payment of rent etc. which is sine qua non to prove tenancy." 10. On behalf of the appellants-plaintiffs, Shri Bhupender Gupta, learned senior Advocate has emphasised that the Assistant Collector, 2nd Grade was not competent to attest the mutation Ext. P5 of the suit land in favour of the defendant, as it is only the Assistant Collector 1st Grade, who alone could have attested the mutation qua the conferment of proprietary rights. It has also been pointed out that under whom the defendant was tenant is not at all proved. There is no evidence qua creation of tenancy of the suit land in his favour. The statement Ext.DW2/B of Shri Negi Ram is hit by Section 145 of the Evidence Act. The suit land was entered in the name of deceased Kirpa Ram and inherited by the plaintiffs after his death and as such, the entries showing the defendant having come on record for the first time in the Jamabandi for the year 1991-92 being based on mutation. Ext.P5, are not legally sustainable. According to learned counsel, both Courts below have failed to appreciate the evidence available on record in its right perspective and as such the judgment and decree under challenge has been sought to be quashed and set aside. 11. On the other hand, Shri Rajnish K. Lall, learned counsel while repelling the submissions made on behalf of the appellant-plaintiff has urged that no case is made out from the record that the Assistant Collector, 2nd Grade was not competent to attest the mutation, as no issue in this regard was sought to be framed and, therefore, the defendant can not be taken in surprise. The appellant has no locus-standi to file the appeal, because plaintiffs No.2 to 4 and proforma-defendant No.2 who are sons, widow and daughter of deceased Kirpa Ram, have not opted for agitating the matter any other and further by filing an appeal against the judgment and decree passed by learned District Judge in this Court and as regards the appellant-plaintiff and his predecessor-in-interest, i.e. deceased plaintiff No.1 Beli Ram, they belong to some other place and not related to deceased Kirpa Ram. 12. Now, if coming to the substantial questions of law as formulated in this appeal, the legality and validity of Mutation Ext. P5 has been hotly contested by the parties on both sides. On behalf of the appellant-plaintiff, it is canvassed that a Revenue Officer in the rank of Assistant Collector, 2nd Grade, was not competent to sanction and attest the mutation of the suit land in the name of respondent No.1-defendant. I find no force in the arguments so addressed for the reason that there is no provision under the H.P. Tenancy and Land Reforms Act and also the Rules framed thereunder, providing for attestation of mutation qua conferment of proprietary rights upon a tenant in respect of the land in his possession by an Officer in the rank of Assistant Collector, 1st Grade. Sub-section (6) of Section 104 of the Act provides that order qua conferment of proprietary rights is to be passed by the Land Reforms Officer. There is, however, requirement under Rule 28 of the Rules framed under the Act that mutation should be attested by the Land Reforms Officer in the presence of the parties. It is in the event of there being any dispute within the meaning of sub-section (4) of Section 104 of the Act, such dispute as per Rule 29 can only be decided by the Land Reforms Officer in his capacity as Assistant Collector, 1st Grade, in accordance with the relevant provisions of Punjab Land Revenue Act or H.P. Land Revenue Act, as the case may be, by conducting inquiries summarily. Section 21 of the Act provides that the summons issued by a Revenue Officer, if practicable, be served personally upon the person against whom issued, failing which his recognised agent or in the case of refusal, by affixation on the last known address or sending the same by registered post or proclamation etc. etc. 13. Section 21 of the Act provides that the summons issued by a Revenue Officer, if practicable, be served personally upon the person against whom issued, failing which his recognised agent or in the case of refusal, by affixation on the last known address or sending the same by registered post or proclamation etc. etc. 13. The only requirement under the Rules, therefore, is that every possible effort should be made to serve the opposite party before attestation of the mutation qua conferment of proprietary rights. 14. If coming to the order of mutation Ext. P5, dated 14.6.1990, the presence of one of the owners Shri Mohan Lal has been recorded. This order further takes note of various dates for which the remaining owners, viz., the appellant-plaintiff and proforma respondents-plaintiffs were duly served, however, failed to put in appearance. As regards Shri Mohan Lal, one of the owners present on the day of attestation of mutation, he has pleaded no objection and it is thereafter, the Land Reforms Officer (Assistant Collector, 2nd Grade), passed the order qua attestation of mutation of the suit land in favour of respondent No.1-defendant. The present, therefore, is not a case where all concerned, i.e. the owners were not summoned or served before attestation of mutation. The present is also not a case where the owners raised dispute with regard to the suit land in possession of respondent No.1-defendant in the capacity of tenant within the meaning of sub-section (4) of Section 104 of the Act, which was required to be adjudicated upon by the Land Reforms Officer in the rank of Assistant Collector, 1st Grade. 15. The present rather is a case where one of the owners present before the Land Reforms Officer did not raise any objection qua the attestation and sanction of mutation of the suit land in favour of respondent No.1- defendant. There being no allegation of fraud, misrepresentation or extraneous consideration or connivance between the Land Reforms Officer and respondent No.1-defendant, order Ext.P5 cannot be said to be illegal and in valid and its authenticity cannot be doubted in any manner whatsoever. 16. The present is even a case where the owners i.e. plaintiff Beli Ram through his attorney DW3 Negi Ram and proforma respondent-plaintiff Smt. Gulabi Devi, during the course of correction proceedings, initiated vide application Ext. 16. The present is even a case where the owners i.e. plaintiff Beli Ram through his attorney DW3 Negi Ram and proforma respondent-plaintiff Smt. Gulabi Devi, during the course of correction proceedings, initiated vide application Ext. DW2/A, filed by none-else, but the appellant-plaintiff and proforma respondent-plaintiff through DW-3 Negi Ram, their attorney, have made statements Exts.DW2/B and DW2/C that out of land measuring 19-5-0 Bighas, bearing Khasra No.60, respondent No.1-defendant was in possession of 5-10-0 bighas of land bearing Khasra No.60/1. They further stated that there is no objection in case this much area of land in question is entered in the name of respondent No.1-defendant. On the basis of statements so made, the Assistant Collector, 2nd Grade, Solan, passed order on 16.9.1978 that the suit land be entered in the name of respondent No.1-defendant. 17. Not only this, but the previous owner of the suit land DW-5 Satinder Singh Kaur also tells us that besides the cultivable land, the land Ghasni in nature was also given by them to the tenants in which, with Kirpa Ram, the predecessor-in-interest of the plaintiffs, Shri Roop Ram, respondent-defendant was also in possession of land about 6 bighas and it is he who used to cut grass therefrom. Although in order to discard the testimony of this witness, his version in cross-examination has been highlighted during the course of arguments, however, unsuccessfully, because during his cross-examination also he has deposed about the possession of respondent defendant Roop Ram in the Ghasni along with deceased Kirpa Ram. The present, therefore, is a case where no dispute can be said to be there qua the possession of the respondent No.1-defendant over the land measuring 5- 10-0 Bighas, Ghasni in nature, bearing Khasra No.111/60/1. 18. Be it stated that the file qua sanction of mutation of the suit land was previously ordered to be closed by the Land Reforms Officer as is apparent from the perusal of the order Ext.P3, however, not on merits or on any other ground qua his tenancy rights thereon, but simply on the ground that he failed to produce the proof qua attaining the age of majority. Therefore, there is no force in the contention that when the case qua attestation and mutation of the suit land in favour of respondent-defendant was ordered to be closed, the same should have not been re-opened and the mutation attested in his favour, vide order Ext.P5. 19. The ratio of judgment in Besru v. Shibu, 1999 (1) Shim. L.C. 343, is not at all attracted in the case in hand for the reasons that seriously disputed questions of facts qua the land in dispute in possession of the defendants in the capacity of tenant were raised by the owners in that case. Therefore, in my considered opinion, mutation Ext.P5, has rightly been attested and the same cannot be said to be illegal, null or void by any stretch of imagination. Both Courts below have not committed any illegality or irregularity in placing reliance thereon. 20. True it is that the previously recorded statements like Ext. DW2/B, DW2/D and for that matter Ext. DW2/C can be used for the purpose of contradictions, however, the same in this case are not hit by Section 145 of the Evidence Act, as argued on behalf of the appellant-plaintiff for the reason that author of statement Ext.DW2/B, Shri Negi Ram and that of DW2/D, the respondent-defendant, both have stepped into the witness box as DW-3 and DW-1 during the course of trial in the suit. Respondent-defendant (DW1) is not at all confronted with his previously recorded statement Ext.DW2/D. Shri Negi Ram while in the witness box as DW- 3 has stated that his statement Ext. DW2/B is absolutely correct. He also admits himself to be the attorney of the plaintiffs. He has also not been confronted with the application Ext.DW2/A, he moved on behalf of the plaintiffs for correction of the revenue entries and his statement Ext. DW2/B recorded during the course of proceedings in that application. Therefore, it lies ill in the mouth of the appellant-plaintiff to claim that no reliance could have been placed on the previously recorded statement of DW3 Shri Negi Ram and respondent-defendant Roop Ram. 21. The author of statement Ext.DW2/C was Smt. Gulabi Devi, one of the plaintiffs. He, however, did not step into the witness box. Had her previously recorded statement been not correct, she would have stepped into the witness box and stated so on oath. 21. The author of statement Ext.DW2/C was Smt. Gulabi Devi, one of the plaintiffs. He, however, did not step into the witness box. Had her previously recorded statement been not correct, she would have stepped into the witness box and stated so on oath. In that event, the respondent-defendant would also have an opportunity to cross-examine her. 22. I, therefore, find nothing illegal in placing reliance on the previously recorded statements of DW3 Negi Ram, respondent-defendant Roop Ram and Smt. Gulabi Devi, recoded during the course of correction of entries qua the entire land, including the suit land on an application Ext. DW2/A, filed by the plaintiffs themselves through their attorney DW-3 Negi Ram. 23. Respondent-defendant was not inducted as tenant by Shri Kirpa Ram, the predecessor-in-interest of the plaintiffs and rather said Shri Kirpa Ram was also a tenant over the land measuring 19-5-0 Bighas along with respondent-defendant. It is proved so from the statements of one of the previous owners DW-5 Satinder Singh Kaur, because he has specifically stated that in Ghasni land measuring 20 Bighas, the possession of the respondent-defendant was over 6 Bighas approximately, as it is he who used to cut grass therefrom. Therefore, it is doubtful that the respondent-defendant was tenant under the plaintiffs or their predecessor-in-interest Shri Kirpa Ram. He rather seems to be tenant under the previous owner DW-5 Satinder Kaur etc. As a matter of fact, Shri Kirpa Ram, the predecessor-in-interest of the plaintiffs was also a tenant qua the land bearing Khasra No.111/60 under the same owners. Be it stated that the tenancy is a creation of agreement, may be oral or in writing. In the case in hand, the previous owners haave admitted the respondent-defendant to be their tenant over the suit land. Even the plaintiffs had also admitted him to be in possession of the suit land. Therefore, when there is no dispute with respect to the possession of the respondent-defendant over the suit land as a tenant, the agreement with regard to the creation of tenancy in his favour and the payment of rent is not required to be proved. 24. Even the plaintiffs had also admitted him to be in possession of the suit land. Therefore, when there is no dispute with respect to the possession of the respondent-defendant over the suit land as a tenant, the agreement with regard to the creation of tenancy in his favour and the payment of rent is not required to be proved. 24. True it is that in Jamabandi for the year 1985- 86, Ext.P1/PX, appellant-plaintiff and proforma respondent-plaintiff have been shown owners in possession of the part of land bearing Khasra No.111/60, measuring 13-10-0 Bighas, whereas the suit land measuring 5-10-0 Bighas has been shown in possession of the respondent-defendant in the capacity of non-occupancy tenant, the fact, however, remains that in view of the statement of DW-5 Satinder Kaur, the defendant-respondent was in possession of the suit land right from the time of the previous owners of the suit land. Otherwise also, In view of the discussion herein above, the plaintiffs have themselves admitted the possession of the respondent-defendant over the suit land in the capacity of tenant during the correction proceedings initiated at their instance. In the order Ext.P3 no doubt it has come that plaintiff Beli Ram and Gulabi Devi have disowned their previously recorded statements being wrong, but only to the extent that area measuring 5-10-0 Bighas is not in possession of the defendant. Though according to them, the respondent-defendant is in possession of the land, however, how much is the area in his possession, is not known to them. Therefore, such recitals in the order Ext. P3 are also of no help to the plaintiffs' case for the reason that Beli Ram and Smt. Gulabi Devi did not deny the possession of the respondent-defendant over the land in question, though it is not known to them as to how much area of the land is in the possession of the respondent-defendant. 25. Therefore, the evidence reveals that the plaintiffs had also admitted the respondent-defendant to be in possession of the suit land, may be it is for this reason, the plaintiffs, except for the appellant-plaintiff Rajender Sharma, who is the legal heir of deceased plaintiff Beli Ram, have not opted for filing any appeal in this Court against the judgment and decree passed by learned lower appellate Court. The appellant-plaintiff is working in Prosecution Department as Attorney-cum-Public Prosecutor as is apparent from the order dated 5.7.1999 passed by learned trial Court in an application under Order 22, Rule 3 CPC. He, therefore, taking benefit of technicalities and flaws minor in nature, has filed this appeal for quashing the impugned judgment and decree, however, unsuccessfully. 26. In view of what has been stated herein above, no question of law, much less substantial question of law, as formulated in this appeal, is involved for determination under Section 100 of the Code of Civil Procedure by this Court. The impugned judgment and decree being legally sustainable, therefore, call for no interference by this Court. 27. For all the above reasons, the appeal fails and the same is accordingly dismissed. Parties to bear their own costs. Appeal dismissed.