Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1910 (HP)

Pawan Kumar v. Rajinder Lal

2014-12-15

SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. This appeal is directed against the impugned judgment and decree, rendered on 3.12.2002 by the learned Additional District Judge-II, Kangra at Dharamshala, H.P., in Civil Appeal No. 85-K/99 whereby, the learned District Judge allowed the appeal preferred by the respondent/plaintiff and reversed the judgment and decree of the learned trial Court rendered on 24.8.1999 in Civil Suit No. 278/91/98. 2. Briefly stated the facts of the case are that the plaintiff and defendants No.4 and 8 are the owners in possession of the land comprising in khata No.24 min, Khatoni No.37 min, khasra Nos. 505/189, 506/189 and 508/193, kita 3 measuring 0-01-08 hectares, situated in Mohal Ustehar, Mauza Kothi Jhikli, Tehsil and District Kangra (hereinafter referred to as the suit land) and are entitled to remain so in future as well, therefore, the order of Settlement Officer, Dharamshala, passed in file No.516/SO, dated 31.1.1976 and on its basis mutation No.22, dated 5.10.1976 attested in favour of defendants No.1 to 3 is wrong, null and void as well as without jurisdiction, therefore, is liable to be set aside. The plaintiff has prayed for the relief of permanent prohibitory injunction against defendants No.1 to 3 for restraining them from interfering in his possession over the suit land. In the alternative, the plaintiff has sought the relief of possession of the suit land, in case the defendants No.4 to 8 are found in possession of the suit land or defendants No.1 to 3 are found in possession or they succeed in taking possession of the suit land during the pendency of the suit. It has been averred that the suit land was in the recorded ownership and possession of Dina Nath, the predecessor-in-interest of plaintiff and defendants No.4 and 5 and Tulsi Ram, the predecessor-in-interest of defendants No.7 and 8 and One Mohan Lal, who sold his share to the plaintiff and defendant No.4. During the settlement took place in the year 1973-74, the suit land comprised in khasra No.189/1, measuring 0.00.55 hectares, khasra No.189/2 measuring 0-00-10 hectares and Khasra No. 192/1 measuring 0-00-43 hectares, total are measuring 0-01-08 hectares, was wrongly ordered to be included in the ownership of defendants No.1 to 3 vide mutation No.22 attested on 5.10.1976. During the settlement took place in the year 1973-74, the suit land comprised in khasra No.189/1, measuring 0.00.55 hectares, khasra No.189/2 measuring 0-00-10 hectares and Khasra No. 192/1 measuring 0-00-43 hectares, total are measuring 0-01-08 hectares, was wrongly ordered to be included in the ownership of defendants No.1 to 3 vide mutation No.22 attested on 5.10.1976. It has been further averred that this mutation was attested in pursuant to the order of the Settlement Officer dated 31.1.1976 which was rendered without hearing the plaintiff and defendants No.4 to 8, as such, the same is not binding upon them and the same deserves dismissal. The suit land is the Agwahra and Pichwarha of the plaintiff and defendant No.4 and the same is in their possession since long. 3. The defendants contested the suit and filed separate written statements. Defendant No.1 to 3 in their written statement have taken preliminary objections inter alia estoppel, maintainability, cause of action, non-joinder of parties etc. On merits, it has been pleaded that the suit land was the subject matter of consolidation. The predecessor-in-interest of the plaintiff and defendants No.4 and 5 and others, filed a revision before the State Government, as provided under the said Act and there, re-allotment of the land comprising in khasra No.221 and 222 was ordered vide order dated 13.1.1970. It has been further pleaded that the order dated 13.1.1970 of State Government was executed and implemented, therefore, the same is also binding upon the plaintiff. It has been further averred that in the meanwhile, the settlement also started in the area and Settlement Officer gave effect to the already existing order passed by the consolidation authorities and the mutation No.22, has been attested in pursuance of the order passed by the consolidation authorities. It has been averred that no new order has been passed by the Settlement Officer. Defendants No.1 to 3 have claimed possession over the suit land and have denied the right, interest and title of the plaintiff and defendants No.4 to 8 over the suit land. 4. Defendants No.4 and 5 by filing their joint separate written statement have admitted the case of the plaintiff as set out in the plaint and they have prayed that a decree be passed in his favour. 5. 4. Defendants No.4 and 5 by filing their joint separate written statement have admitted the case of the plaintiff as set out in the plaint and they have prayed that a decree be passed in his favour. 5. The plaintiff/respondent filed replication to the written statement of the defendants/appellants, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 6. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 12. Whether the land in suit is owned by the plaintiff and defendants No.4 to 8 and is possessed by plaintiff and defendant No.4, as alleged? OPP 13. Whether the mutation No.22 sanctioned on 5.10.1976 is wrong illegal and not binding on the plaintiff and defendants No.4 to 8, as alleged , if so its effect? OPP 14. Whether the order passed by Settlement Officer dated 31.1.1970 in file NO.516, is illegal as have been passed behind the back of the plaintiff and other interested parties, as alleged, if so, its effect? OPP 15. Whether the plaintiff is entitled to a relief of injunction, as claimed? OPP 16. In case the plaintiff is not found entitled to a relief as prayed for in prayer “A” whether the plaintiff is entitled to a decree for possession, as prayed for in prayer “B”? OPP 17. Whether the suit is within time? OPP 18. Whether the act and conduct of the plaintiff is a bar to the present suit? OPD 19. Whether the suit is not maintainable in the present form? OPD 20. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 21. Whether the suit is bad for non joinder of necessary and proper parties? OPD 22. Whether the suit has no jurisdiction to try and decide the present suit? OPD 23. Whether the suit is property valued for the purpose of court fee and jurisdiction? OPP 24. Whether the sale made by Mohan Lal to defendant No.4 is illegal, invalid and not binding as alleged? OPD 25. Whether the plaintiff, defendants No.4 to 8 and other have got no share in the suit land, as alleged? OPD 26. Whether the defendants No.1 to 3 are owners and in possession of the suit land? OPD 27. OPP 24. Whether the sale made by Mohan Lal to defendant No.4 is illegal, invalid and not binding as alleged? OPD 25. Whether the plaintiff, defendants No.4 to 8 and other have got no share in the suit land, as alleged? OPD 26. Whether the defendants No.1 to 3 are owners and in possession of the suit land? OPD 27. Whether the land in suit has been allotted to the defendants No.1 to 3 in consolidation (Prevention of Fragmentation of Holdings), if so, its effect? OPD 28. Relief. 7. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the respondent/plaintiff. In appeal, preferred by the respondent/plaintiff against the judgment and decree of the learned trial Court before the learned first Appellate Court, the learned first Appellate Court allowed the appeal and reversed the findings recorded by the learned trial Court. 8. Now the defendants/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 07.11.2003, this Court, admitted the appeal instituted by the defendants/appellants, against the judgment and decree, rendered by the learned first Appellate Court on the hereinafter extracted substantial question of law:- 4. Whether the judgment and decree of the first appellate Court is result of mis reading of the documentary and oral evidence which vitiated the findings? Substantial question of Law No.1: 9. Under Ex. D-9, the Deputy Commissioner, Bilaspur, who while exercising the powers of the State Government for the purpose of Section 42 of the Consolidation of Holding and Prevention of Fragmentation Act (hereinafter referred to as the Act) ordered the re-allotment of the land comprised in khasra Nos. 221 and 222. The order comprised in Ex.D-9 was rendered on 13.01.1970. Uncontrovertedly, the orders comprised in Ex.D-9 remained un-assailed at the instance of the aggrieved in the higher echelons of the hierarchy of revenue officers constituted under the Act aforesaid. Consequently, with the orders comprised in Ex.D-9 having remained un-assailed in the higher echelons of the hierarchy of revenue officers constituted under the Act aforesaid, they attained conclusiveness and finality. Uncontrovertedly, the orders comprised in Ex.D-9 remained un-assailed at the instance of the aggrieved in the higher echelons of the hierarchy of revenue officers constituted under the Act aforesaid. Consequently, with the orders comprised in Ex.D-9 having remained un-assailed in the higher echelons of the hierarchy of revenue officers constituted under the Act aforesaid, they attained conclusiveness and finality. The finality, hence, garnered by Ex.D-9 would seal the fate of the plaintiff to claim any right, title or interest over and upon the suit land, in case, it is also further established that the order comprised in EX.D-9 is qua khasra numbers analogous to the khasra numbers in the instant suit. In the face of revelation in Ex. D-9 of khasra numbers therein being not khasra numbers analogous to the khasra numbers comprising the suit land in the instant suit, obviously then the force and effect of Ex. D-9 in whittling down, abrogating or extinguishing the rights of the plaintiff qua the suit land stands dwindled. Rather a perusal of Ex. D-9 reveals that it was rendered qua khasra numbers 221, 222 and 223. The khasra numbers aforesaid comprised in Ex. D-9 manifestly are as apparent on a reading of khasra numbers comprising the suit land in the instant suit, not analogous khasra numbers. For reiteration, in face of incongruity of khasra numbers qua the suit land in the instant suit and of the khasra numbers comprised in Ex. D-9 rather leaves open room for an apt conclusion that, even if, Ex. D-9 , acquires a clinching force, finality as well as conclusiveness for lack of its being not assailed in the higher echelons of the hierarchy of revenue officers constituted under the Act aforesaid, the factum of its having acquired clinching force and finality as well as conclusiveness is only qua khasra numbers 221, 222 and 223 and not qua other khasra numbers which are the khasra numbers of the suit land in the instant suit. In after math, the ensuing, concomitant and invincible inference which is to be marshaled as well as mobilized by this Court is that the effect of Ex. D-9 is that it does not erode or dwindle or extinguish the rights of the plaintiff/respondent qua the suit land. 10. In after math, the ensuing, concomitant and invincible inference which is to be marshaled as well as mobilized by this Court is that the effect of Ex. D-9 is that it does not erode or dwindle or extinguish the rights of the plaintiff/respondent qua the suit land. 10. The plaintiff anvilled his claim on the score of an order rendered in File No.516/SO of 31.1.1976 and consequent mutation anchored thereupon comprised in mutation No.22 of 5.10.1976 acquiring no legal force so as to impinge upon the rights of the plaintiff/respondent herein over and upon the suit land, inasmuch as it having been rendered behind the back of the predecessor-in-interest of the plaintiff/respondent besides per se it garnering vitiation on the score of it in dire derogation of the openly proclaimed rights of the plaintiff in the suit land, having ordered the recording of defendants No.1 to 3 to be owners to the extent of 6 marlas of land, even when they were not entitled to the same. The claim of the plaintiff was dislodged by the learned trial Court on the score of non-adduction of the original file whose adduction would have propelled succor to the inference that the order of the Settlement Officer in file No. 516/SO of 31.1.1976 was vitiated on the score of it having infracted the principles of natural justice, inasmuch as it having come to be rendered even when the aggrieved/plaintiff in the suit were not heard prior to its rendition. However, the said reasoning as adopted by the learned trial Court to non-suit the plaintiff is per se perverse as non-adduction of file No. 516/SO of 31.1.1976 especially when it stood destroyed could not stand in the way of facilitating an inference in favour of the plaintiffs in the instant suit to claim a right over the suit land. More so, when its non-adduction was not within his reach. Even otherwise the deposition of PW-1 voices the factum of the order rendered by the Settlement Officer in file No. 516/SO of 31.1.1976 have been rendered behind his back, even if the said file came to be destroyed and, hence, its non-adduction may facilitate an inference that the Settlement Officer while rendering orders in the file aforesaid in favour of the defendants herein qua the suit land may have adhered to or complied with the principles of natural justice. However the said inference cannot be stretched ahead to abrogate or prejudice the rights of the plaintiffs in the instant suit qua the suit land especially when the plaintiff PW-1 has in his deposition on oath deposed that in the Settlement Officer rendering orders in favour of the defendants in file No. 516/SO of 31.1.1976 had condemned him unheard which factum deposed on oath does, hence, acquire tenacity. Consequently, the non suiting or dislodging of the claim of the plaintiff in the instant suit by the learned trial Court on the score of the plaintiff having omitted to adduce into evidence the orders rendered in file No. 516/SO of 31.1.1976 for under scoring the factum of it while displaying the fact that in its rendition it was not preceded by a notice served upon the plaintiff in the suit, hence, was in infraction of the principles of natural justice appears to have been done by the learned trial Court in a slip shod manner in open conflict to the deposition of PW-1 who on oath deposed that preceding its rendition, the Settlement Officer had not either issued or served notice upon them. As such, when obviously, the plaintiff in the proceedings preceding its rendition did not participate therein, the orders rendered in file No. 516/SO of 31.1.1976 were in conflict with and were rendered in infraction of the principles of natural justice, naturally they acquire the taint of illegality and are void ab initio necessitating their reversal. Moreover, a reading of mutation comprised in Ex. Moreover, a reading of mutation comprised in Ex. D-2 attested on strength thereof does also per se prove that title qua six marlas of land comprised in the suit land stood vested in favour of defendants No.1 to 3, who as apparent on a reading of the oral as well as documentary evidence on record as aptly concluded by the learned first Appellate Court were not entitled to the said area of land mutated in their favour as owners, rather when evidence has come on record that the plaintiff has a right to the said area of six marlas of land, hence, also it appears that the orders rendered in file No. 516/SO of 31.1.1976 were rendered behind the back of the plaintiff in the instant suit, for in case he was heard, the factum of it having beyond the entitlement of defendants No.1 to 3 in the suit land held them so would not have occurred. Concomitantly, the findings of the learned first Appellate Court do not suffer from any perversity or absurdity and do not warrant any interference from this Court. The substantial question of law is answered in favour of the plaintiff/respondent and against the defendants/appellants. 11. The result of the above discussion is that the appeal, preferred by the defendants/appellants 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.