Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1950 (HP)

Jarmej Singh S/o. Shri Rasila Singh v. Hazauro S/o. Shri Mangtu

2014-12-19

P.S.RANA

body2014
JUDGMENT : P.S. Rana, J. Present Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure by the appellants against the judgment and decree dated 5.8.2002 passed by learned Additional District Judge–I Kangra at Dharamshala in Civil Appeal No. 23-N/2000 titled Jarmej Singh vs. Hazauro whereby learned Additional District Judge-I Kangra at Dharamshala had affirmed the judgment and decree passed by learned trial Court i.e. Civil Judge Court No. II Nurpur District Kangra in Civil Suit No. 61 of 1995 titled Jarmet Singh and others vs. Hazauro. 2. Brief facts of the case as pleaded are that Jarmej Singh and other plaintiffs filed a suit for possession of land comprised in Khata No. 85, Khatauni No. 274 min Khasra No. 18, 25 plots 2 measuring 0-34-99 HM situated in Tikka mauja Thapkaur Tehsil Nurpur District Kangra. It is pleaded that plaintiffs are co-sharers along with other co-sharers and defendant is stranger to the suit land. It is further pleaded that defendant is also trespasser of suit land and defendant has no right title or interest over the suit land. It is also pleaded that neither the defendant is tenant over the suit land nor defendant was inducted as tenant over the suit land by the plaintiffs. It is pleaded that plaintiffs have asked the defendant to admit the claim of the plaintiffs but defendant refused to do so. Decree for possession in favour of plaintiffs and against defendant sought 3. Per contra written statement filed on behalf of defendant pleaded therein that suit is not maintainable in present form and suit is bad for non-joinder of necessary parties. It is also pleaded that plaintiffs are estopped by their act and conduct from filing the present suit and plaintiffs have no cause of action to file the present suit. It is further pleaded that plaintiffs have no locus standi to file the present suit and plaintiffs have also not come to Court with clean hands. It is denied that suit land is Shamlat deh and it is also denied that plaintiffs are co-owners over the suit land. Title of plaintiffs over the suit land is also denied. It is pleaded that other co-owners are necessary parties. It is denied that suit land is Shamlat deh and it is also denied that plaintiffs are co-owners over the suit land. Title of plaintiffs over the suit land is also denied. It is pleaded that other co-owners are necessary parties. It is pleaded that suit land has been allotted to the defendant by H.P. Government under the H.P. Village Common Land and Utilization Scheme 1975 and plaintiffs have no right title or interest over the suit land as same was allotted to the defendant. It is pleaded that mutation of suit land was illegally rejected by Settlement Collector. In alternative, defendant also pleaded right of adverse possession over the suit land. It is pleaded that plaintiffs have no cause of action and prayer for dismissal of suit is sought. 4. As per the pleadings of parties learned trial Court framed following issues on dated 9.9.1996:- 1. Whether the plaintiffs are entitled for the possession of the suit land? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is bad for non-joinder of necessary parties if so who is necessary party? OPD 4. Whether the plaintiffs are estopped by their act and conduct to file this suit? OPD 5. Whether the plaintiffs have no locus standi to file the present suit? OPD 6. Whether the plaintiffs have got no enforceable cause of action against the defendant? OPD 7. Whether the suit land had been allotted to the defendant by the H.P. Government under H.P. Village Common Land Vesting and Utilization Scheme 1975 if so its effect? OPD 8. Whether the defendant in the alternative has become owner of the suit land by way of adverse possession? OPD 9. Relief. 5. Parties examined following oral witnesses in supported of their case:- Sr. No. Name of witness PW1 Dhian Singh Patwari PW2 Angrez Singh DW1 Hazauro Singh DW2 Gian Singh 6. Parties produced following documentary evidence in support of their case:- Sr. OPD 9. Relief. 5. Parties examined following oral witnesses in supported of their case:- Sr. No. Name of witness PW1 Dhian Singh Patwari PW2 Angrez Singh DW1 Hazauro Singh DW2 Gian Singh 6. Parties produced following documentary evidence in support of their case:- Sr. No. Description Ext.P1 List of owners of suit property Ext.P2 Misal Hakiyat for the year 1983-84 Ext.P3 Jamabandi for the year 1978-79 Ext.P4 Jamabandi for the year 1978-79 Ext.D1 Jamabandi for the year 1990-91 Ext.D2 Jamabandi for the year 1983-84 Ext.D3 Jamabandi for the year 1972-73 Ext.D4 Jamabandi for the year 1978-79 Ext.D5 Copy of mutation No. 322 Ext.D6 Copy of allotment certificate of land in favour of defendant by Collector Nurpur District Kangra HP 7. Findings of learned trial Court on issues Nos. 1 to 6 were in negative and learned trial Court held that issue No. 7 became redundant. Learned trial Court decided issue No. 8 in favour of defendant and held that defendant has become owner of suit land by way of right of adverse possession. Learned trial Court dismissed the suit filed by the plaintiffs. 8. Feeling aggrieved against the judgment and decree passed by learned trial Court appellants filed first appeal before learned Ad ditional District Judge Kangra at Dharamshala which was registered as Civil Appeal No. 23-N of 2000 titled Jarmej Singh and others vs. Hazauro. Learned first Appellate Court held that respondent could not be said to have become owner of suit land by way of adverse possession. Learned first Appellate Court despite holding that defendant did not acquire right of adverse possession in para No. 14 of judgment did not set aside findings of issue No. 8 and affirmed the impugned judgment and decree passed by learned trial Court dated 26.11.1999. Learned Additional District Judge-1 Kangra at Dharamshala H.P. dismissed appeal filed by appellants. 9. Thereafter feeling aggrieved by judgments and decrees passed by learned trial Court and affirmed by learned first Appellate Court appellants have filed present Regular Second Appeal No. 117 of 2003 titled Jarmej Singh and others vs. Hazauro. Learned Additional District Judge-1 Kangra at Dharamshala H.P. dismissed appeal filed by appellants. 9. Thereafter feeling aggrieved by judgments and decrees passed by learned trial Court and affirmed by learned first Appellate Court appellants have filed present Regular Second Appeal No. 117 of 2003 titled Jarmej Singh and others vs. Hazauro. Hon’ble High Court admitted the present appeal on the following substantial question of law on dated 31.3.2003: Whether first appellate Court has wrongly read and inferred the oral and documentary evidence on record to come to the conclusion that the plaintiffs-appellants have no locus standi to file their suit in individual capacity as the land in dispute is recorded in the ownership of SHAMLAT DEH HASAB RASAD MALGUZARI? 10. Court heard learned Advocates appearing on behalf of the parties and also perused the entire record carefully. Oral Evidence adduced by parties 10.1 PW1 Dhian Singh Patwari has stated that he has brought the summoned record. He has stated that he has also brought list of proprietors of suit land Ext.P1. He has stated that he is posted as Patwari since 13 years. He has denied suggestion that he has prepared list of proprietors of suit land contrary to record. 10.2 PW2 Angrej Singh has stated that plaintiffs are owners of suit land and further stated that there are 15 co-sharers of suit land. He has stated that he is also owner of other immovable property in village and he used to pay the land revenue. He has stated that defendant did not own any immovable property in the village. He has stated that possession of defendant is illegal. He has further stated that defendant did not accept the request of plaintiffs to vacate the suit land. He has denied suggestion that defendant is in settled possession since 1975. He has denied suggestion that defendant is owner in possession of suit land. He has denied suggestion that he has no title in suit property. 10.3 DW1 Hazauro has stated that suit land is 10 kanals and 11 marlas and he is in possession since 1975. He has stated that suit land was allotted to him as a landless person. He has stated that possession was also delivered to him. He has stated that plaintiff has no title in suit property. He has denied suggestion that he has no right title or interest in suit property i.e. Shamlat deh land. He has stated that suit land was allotted to him as a landless person. He has stated that possession was also delivered to him. He has stated that plaintiff has no title in suit property. He has denied suggestion that he has no right title or interest in suit property i.e. Shamlat deh land. 10.4 DW2 Gian Chand has stated that parties are known to him and further stated that suit land is 10 kanals and 11 marlas. He has stated that suit land was allotted to defendant in the year 1975 by way of allotment order. He has stated that initially suit land was barren and grassy land. He has stated that plaintiff has no interest in suit property. He has denied suggestion that defendant is in illegal possession of suit property. Findings upon Substantial Question of law framed by Hon’ble High Court:- 11. Court has also perused documentary evidence placed on record. As per document Ext.P2 suit land comprised in Khata No 85/59 Khatauni No. 274 is in ownership of Shamlat Deh Hasab Rasad Malguzari (All owners of village are proprietors of suit land as per payment of land revenue). In the possession column name of defendant has been recorded. Old Khasra number has been mentioned as 1 min and new Khasra number have been mentioned as 18 and 25. Area of Khasra No. 18 is mentioned as 0-25-97 Kuhli Awal (Irrigated land) and area of Khasra No. 25 has been shown as 0-09-02 barren land. As per document Ext.P1 which is Fehrist Malkan (List of proprietors of village) 155 persons have been shown as owners of suit land in the capacity of Shamlat Deh Hasab Rasad Malguzari (All owners of village are proprietors of suit land as per payment of land revenue). As per jamabandi Ext.P3 for the year 1978-79 old khasra number of land has been shown as 1 and area of suit land has been shown as 137 kanals and nature of suit land has been shown as Gair Mumkin Khud (River) and in ownership column name of Shamlat Deh Hasab Rasad land revenue mentioned. As per jamabandi Ext.P4 for the year 1978-79 in the ownership column Shamlat Deh Hasab Rasad Malguzari mentioned and area shown as 137 Kanals. Nature mentioned as river. As per jamabandi Ext.P4 for the year 1978-79 in the ownership column Shamlat Deh Hasab Rasad Malguzari mentioned and area shown as 137 Kanals. Nature mentioned as river. In jamabandi Ext.D3 jamabandi for the year 1972-73 old Khasra number of suit land mentioned as 1 and area mentioned as 137 Kanals. Nature mentioned as river. In the remarks column it has been specifically mentioned that on dated 4.11.1973 ownership of land was transferred from Gram Panchayat Deh to Shamlat Deh Hasab Rasad Malguzari (All owners of village are proprietors of suit land as per payment of land revenue). There is further recital in remarks column that vide mutation No. 316 ownership of land was transferred in the name of H.P. Government and mutation was sanctioned on dated 9.6.1978. There is further recital in remarks column that thereafter mutation was reviewed and ownership of suit land was again recorded in the name of Shamlat Deh Hasab Rasad Malguzari (All owners of village are proprietors of suit land as per payment of land revenue) and mutation of suit land in the name of H.P. Government was cancelled. There is further recital in remarks column that vide mutation No. 322 suit land measuring 10 Kanals and 12 marlas was allotted in favour of defendant and mutation was sanctioned on dated 27.3.1981. There is further recital in remarks column that thereafter mutation of suit land in favour of defendant was also reviewed by Settlement Collector and mutation in favour of defendant was cancelled. 12. It is proved on record that vide document Ext.D6 land measuring 10 Kanals 12 Marlas of land was allotted to defendant in Khasra No. 1/3 in mauja Thapkaur Tehsil Nurpur District Kanga. It is proved on record that old Khasra number of suit land was 1 and entire area of Khasra No. 1 was 137 Kanals. It is also proved on record that out of total land i.e. 137 Kanals land measuring 10 Kanals and 12 Marlas was allotted to the defendant and Khasra No. 1/3 was mentioned. It is also proved on record that Khasra No. 1/3 is a part of old Khasra No. 1 and suit land i.e. Khasra Nos. It is also proved on record that out of total land i.e. 137 Kanals land measuring 10 Kanals and 12 Marlas was allotted to the defendant and Khasra No. 1/3 was mentioned. It is also proved on record that Khasra No. 1/3 is a part of old Khasra No. 1 and suit land i.e. Khasra Nos. 18 and 25 are also part of old Khasra No.1 and thereafter min numbers were allotted to the suit land and old Khasra number was mentioned as 1 min and new Khasra Number has been shown as Khasra Nos. 18 and 25. Plaintiffs and defendant did not place on record Tatima (Field map) to show the location of land measuring 10 Kanals and 12 Marlas which was allotted to defendant by way of allotment measuring 10 Kanals 12 Marlas. It is well settled law that immovable property is located only through Khata Khatauni number, Khasra number and Tatima (Field map). It is well settled law that mutation did not confer or extinguish any title in suit property. It was held in case reported in AIR 1994 SC 227 titled Guru Amarjeet Singh vs. Rattan Chand and others that mutation does not confer or extinguish any title in immovable property. (Also see 1996(4) SLJ 2982 titled Mohammad Iqbal vs. Government of Indian and others) It is proved on record that 10 Kanals 12 Malras of land was allotted to the defendant from Khasra No. 1/3 situated in mauja Thapkaur Tehsil Nurpur District Kangra by the Collector Nurpur. Certificate of allotment of land to defendant who is landless person is substantive piece of evidence. There is no documentary evidence on record in order to prove that Collector has reviewed the allotment order in favour of defendant qua 10 Kanals 12 Marlas of land. Even as per Section 10 of H.P. Village Common Lands Vesting and Utilization Act 1974 order of allotment by the Collector could not be challenged before the Civil Court but could be challenged by way of appeal as mentioned in Section 9 of H.P. Village Common Lands Vesting and Utilization Act 1974. 13. Even as per Section 10 of H.P. Village Common Lands Vesting and Utilization Act 1974 order of allotment by the Collector could not be challenged before the Civil Court but could be challenged by way of appeal as mentioned in Section 9 of H.P. Village Common Lands Vesting and Utilization Act 1974. 13. Submission of learned Advocate appearing on behalf of appellants that learned trial Court had granted right of adverse possession to defendant in issue No. 8 over the suit property and learned first Appellate Court has held in positive manner in para 14 of judgment announced in Civil Appeal No. 23-N/2000 titled Jarmej Singh and others vs. Hazauro that defendant could not be said to have become owner of suit land by way of adverse possession due to non-impleadment of other co-owners and right of adverse possession could not be granted to the defendant in the suit property but despite above stated findings learned first Appellate Court affirmed entire judgment and decree of learned trial Court in toto contrary to its own findings is accepted for the reasons hereinafter mentioned. It is proved on record that right of adverse possession could not be granted in favour of defendant unless all co-owners of immovable property are not impleaded as co-party in civil suit. In present case it is proved on record as per document Ext.P1 that there are more than 150 owners of suit property because nature of suit land is shown as Shamlat Deh Hasab Rasad Malguzari (All owners of village are proprietors of suit land as per payment of land revenue) and it is well settled law that right of adverse possession could not be granted to the defendant unless all other co-owners of suit property are not impleaded as co-party in Shamlat Deh Hasab Rasad Malgujari land. It was held in case reported in 1994)6 SCC 591 titled Thakur Kishan Singh (dead) vs. Arvind Kumar that long possession does not prove adverse possession and it was further held that even permissive possession could not be adverse. (See: (2007)6 SCC 59 titled P.T. Munichikkanna Reddy and others vs. Revamma and others (2014)1 SCC 669 titled Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another). It was held in case reported in 2011(10) SCC 404 State of Haryana vs. Mukesh Kumar and others that person claiming adverse possession has no equities in his favour. (See: (2007)6 SCC 59 titled P.T. Munichikkanna Reddy and others vs. Revamma and others (2014)1 SCC 669 titled Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another). It was held in case reported in 2011(10) SCC 404 State of Haryana vs. Mukesh Kumar and others that person claiming adverse possession has no equities in his favour. (See: (2009) 13 SCC 229 titled L.N. Aswathama and another vs. P.Prakash, Latest HLJ 2014 HP 1261 titled Babu Ram vs. Ganpat Ram and others.) Therefore it is held that learned first Appellate Court was under legal obligation to set aside the findings of adverse possession which were granted by learned trial Court in favour of the defendant. In para 14 of judgment learned first Appellate Court itself held that no right of adverse possession accrued in favour of defendant over the suit property. But despite holding by learned first Appellate Court that no right of adverse possession accrued in favour of the defendant over suit property learned first Appellate Court affirmed the entire judgment and decree passed by learned trial Court in toto wherein learned trial Court had granted right of adverse possession to defendant over suit land. It is held that judgment and decree of learned first Appellate Court are itself prima facie contradictory in nature keeping in view the findings in para Nos. 14 and 15 of judgment. It is well settled law that contradictory findings of same Court should not be allowed to sustain as per law. Even it is proved on record that present suit has been filed by plaintiffs in the individual capacity qua suit property owned by other co-sharers of village. Plaintiffs have themselves pleaded in para No. 1 of plaint that present suit is filed for benefit of all co-sharers. Plaintiffs did not seek the leave of Court to file the present suit in representative capacity as required under Order 1 Rule 8 of Code of Civil Procedure 1908. Suit property is in ownership of Shamlat Deh Hasab Rasad Malguzari (All owners of village are proprietors of suit land as per payment of land revenue). In view of above stated facts it is held that plaintiffs were under legal obligation to obtain leave of Court under Order 1 Rule 8 of CPC for institution of suit. Suit property is in ownership of Shamlat Deh Hasab Rasad Malguzari (All owners of village are proprietors of suit land as per payment of land revenue). In view of above stated facts it is held that plaintiffs were under legal obligation to obtain leave of Court under Order 1 Rule 8 of CPC for institution of suit. Suit property is owned by public at large who are residents of village and who use to pay the land revenue. Court has carefully perused the entire order sheets of learned trial Court and it is proved on record that plaintiffs did not seek leave of Court as required under Order 1 Rule 8 of Code of Civil Procedure 1908. As per Order 1 Rule 8 of CPC whenever any civil suit is filed for the benefit of other co-owners then prior permission of Court is essential to file the suit in representative capacity. Hence it is held that no relief could be granted in favour of plaintiffs in view of provision of Order 1 Rule 8 of CPC. Even it is proved on record that present suit has been filed by plaintiffs in personal capacity but personal names of plaintiffs did not record in ownership column of suit property. On the contrary in the ownership column it is recorded that suit land is owned by all proprietors of village who use to pay land revenue i.e. Shamlat Deh Hasab Rasad Malgujari. Jamabandis entries have been prepared by public official in discharge of their official duties and are relevant facts under Section 35 of Indian Evidence Act 1872. In view of above stated facts substantial question of law framed by Hon’ble High Court is decided accordingly. 14. In view of above findings appeal is partly allowed. Findings of learned trial Court qua issue No. 8 relating to findings of title of adverse possession in favour of defendant over suit land and affirmation of findings of learned first Appellate Court qua issue No. 8 relating to right of adverse possession in favour of defendant are set aside and it is held that defendant did not acquire any right of adverse possession over suit property. Issue No. 8 framed by learned trial Court is decided against defendant. Other findings of learned trial Court upon other issues No. 1 to 6 are affirmed. Issue No. 7 is decided in favour of defendant. Issue No. 8 framed by learned trial Court is decided against defendant. Other findings of learned trial Court upon other issues No. 1 to 6 are affirmed. Issue No. 7 is decided in favour of defendant. It is held that land measuring 10 Kanals 12 Marlas situated in village Thapkaur Mauja Thapkaur Tehsil Nurpur District Kangra (HP) comprised in Khasra No. 1/3 allotted to defendant as per H.P. Village Common Lands Vesting and Utilization Scheme 1975. Certificate of allotment Ext.D6 placed on record will form part and parcel of decree sheet. Judgment and decree passed by learned trial Court and judgment and decree passed by learned first Appellate Court are modified to this extent only. Parties are left to bear their own costs. Decree sheet be prepared as mentioned under Section 100 of CPC forthwith. File of learned trial Court and learned first Appellate Court along with certified copy of this judgment and decree passed under Section 100 CPC 1908 be transmitted forthwith. Pending applications if any also disposed of. Appeal stands disposed of.