Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 475 (HP)

Krishanu Ram v. Som Dutt

2014-04-26

SANJAY KAROL

body2014
JUDGMENT : - Sanjay Karol, Judge Appellant Krishanu Ram, one of the legal heirs of defendant No.1 Prabhi Devi, has filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 3.7.2003, passed by District Judge, Bilaspur, Himachal Pradesh, in Civil Appeal No.70 of 1995, titled as Tulsi Ram (now deceased) through his LRs v. Prabhi Devi (now deceased) through LRs and others, whereby judgment and decree dated 6.3.1995, passed by the Sub Judge 1st Class, Ghumarwin, District Bilaspur, Himachal Pradesh, in Civil Suit No. 33-1 of 1989, titled as Tulsi Ram v. Prabhi and others, stands reversed. In effect plaintiff’s suit stands decreed. 2. Briefly stated, it is the plaintiff’s (Shri Tulsi Ram) pleaded case that his father Santu was owner in possession of the suit land. After death of his mother, defendant No.1 Prabhi Devi (hereinafter referred to as the defendant) started residing with his father. In 1958, when Santu died, both plaintiff and his brother were brought up by the defendant. By succession, suit land was inherited, in equal share, by him, his brother and the defendant. However, by exercising fraud, after death of Santu, defendant got herself recorded as a tenant in the revenue record and subsequently by virtue of provisions of Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter referred to as the Act), got the entire land recorded, as owner, in her name. To this effect, order was passed by Compensation Officer on 24.12.1964/ 15.2.1965. 3. Defendant contested the suit, denying any illicit relationship with Shri Santu. Plea of tenancy was defended, as having been transferred to her by Shri Rirku, who undisputedly was erstwhile tenant of Shri Santu. Proprietary rights were conferred upon her only after compliance of due process. She categorically pleaded abuse of process of law, as the suit land, to the notice of plaintiff, stood transferred to defendants No.2 to 5 vide separate sale deeds. 4. Based on the pleadings of parties, trial Court framed the following issues: 1. Whether the plaintiff is entitled for declaration that the plaintiff is joint owner in possession with defendants over the suit land as alleged? OPP 2. 4. Based on the pleadings of parties, trial Court framed the following issues: 1. Whether the plaintiff is entitled for declaration that the plaintiff is joint owner in possession with defendants over the suit land as alleged? OPP 2. If issue No.1 is not proved whether plaintiff is come in possession of whole of the suit land and defendant No.1 is holding the suit land as trusty/licency and that the defendant No.1 has no right to sell any portion of the suit land to defendants No.3 to 6? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is barred by time? OPD 5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 5. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD 6. Whether this court has no jurisdiction to try the suit? OPD 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 8. Whether the defendant No.3 to 6 have purchased the suit land from defendant No.1 in good trust if so its effect? OPD 9. Relief. 5. Trial Court dismissed the suit, holding that order of conferment of proprietary rights was in accordance with law. Lower appellate Court reversed such findings, for the reason that revenue record, prior to conferment of proprietary rights, did not depict true position at the ground level and as such plaintiff was entitled for the relief prayed for in the suit. Record, showing the defendant as a tenant of Santu, after his death on 13.5.1958, was incorrect and as such, she could not have sold the suit land vide separate sale deeds on 11.9.1987. The operative portion of the decree reads as under: “In view of my findings on points nos.1 and 2 above, the appeal of the plaintiff against defendant no.1 Smt. prabhi Devi and her legal representative Shri Krishanu Ram is allowed with costs. The Judgment and decree under appeal is set aside. The plaintiff is granted decree for possession of land described in Khata/Khatoni No. 50/57min, Khasra Nos. The Judgment and decree under appeal is set aside. The plaintiff is granted decree for possession of land described in Khata/Khatoni No. 50/57min, Khasra Nos. 167 and 168 measuring 2-5 bighas and Khasra No. 165 measuring 1-3 bighas of revenue estate, Takrehra against Shri Krishanu Ram son of Shri Sant Ram, resident of village Takrehra, pargana Tiun, tehsil Ghumarwin, District Bilaspur, H.P. Sale deed dated 15.3.1989 vide No.149 page No.43, Book No.1/172 of Sub Registrar, Ghumarwin executed by defendant no.1 Smt. Prabhi Devi in favour of Shri Krishanu Ram is declared wrong, illegal, void and not binding upon the plaintiff. The suit of the plaintiff is accordingly decreed against defendant no.1/ legal representative of defendant no.1 Shri Krishanu Ram.” 6. The appeal was admitted on the following substantial questions of law: a. Whether the first appellate Court was right in granting the relief in the absence of the pleadings for such relief? b. Whether civil courts had no jurisdiction to try the suit? 7. It is a matter of record that plaintiff filed the suit, inter alia,praying for the following relief: “i) for declaration that the plaintiff is joint owner in possession of the land measuring 8-11 bighas comprised in Khasra No.135, 136, 165, 167, 168, 384/247 Khewat Khatoni No.50/57 situated in Village Takrera, Pargana Tiun, Tehsil Ghumarwin, Distt. Bilaspur (H.P.) and his share is 2/3. ii) In alternative possession as the plaintiff is owner of whole of the land and the defendant No.1 is holding it as Trusted licencee and he has no right to sell the same to the defendant No.3 to 6.” 10. Now significantly, order dated 26.12.1964 (Ex. P-19) passed by the Competent Authority, conferring proprietary rights, was given effect to, which fact is evident from subsequent revenue record (Ex.P-20 to Ex. P-26). Prior thereto, there is copy of Jamabandi {Ex. P-4 (1964-1975)}, pertaining to the year 1963-64, showing possession of the defendant as a non-occupancy tenant under the ownership of plaintiff and his brother. Much prior thereto is the revenue record (Ex. P-2), pertaining to the year 1957-58, reflecting Rirku as non-occupancy tenant under the ownership of Santu. Now, it is this tenancy which was transferred by Rirku in favour of defendant Prabhi Devi resulting into her name being entered as a non-occupancy tenant over the suit land. Revenue entry (Ex. P-3) is on record. 11. P-2), pertaining to the year 1957-58, reflecting Rirku as non-occupancy tenant under the ownership of Santu. Now, it is this tenancy which was transferred by Rirku in favour of defendant Prabhi Devi resulting into her name being entered as a non-occupancy tenant over the suit land. Revenue entry (Ex. P-3) is on record. 11. Undisputedly, land in question stands sold to defendant No.2 to 5, vide separate sale deeds executed on 11.9.1987 and the instant suit was filed only on 10.3.1989. Plaintiff has not challenged these sale deeds. Hence, in the absence of any specific challenge to the sale deeds or relief of possession, first appellate Court could not have decreed the suit, declaring the plaintiff to be owner in possession over the suit land. 12. It is the plaintiff’s own case that upon death, interest of Santu devolved upon him, his brother and the defendant. Thus, defendant was a legally wedded wife of Santu. It is argued that a mother cannot be a tenant. There is no statutory bar in this regard. Defendant categorically pleaded that Rirku transferred his tenancy rights in her favour to which there is no challenge. Be that as it may, the fact of the matter is that revenue record clearly reflects defendant Prabhi Devi as a non-occupancy tenant. Long standing entries in the revenue record, prima facie establish truth, depicting the position at the ground level. 13. It is argued that defendant exercised fraud in getting such entries reflected in her name. Record reveals that there is no iota of evidence to substantiate such plea. Furthermore, long standing entries, showing defendant Prabhi Devi to be tenant and owner in her own right stand unchallenged and unrebutted over a continuous period of time. Conferment of proprietary rights was in the year 1964. It is not the plaintiff’s case that he was legally handicapped from assailing such entries. Why is it that plaintiff, who was an adult, challenged such entries only after land was sold in favour of co-defendants in the year 1989. 14. Plaintiff was never in possession of the suit land. Surprisingly, lower appellate Court passed a decree, holding him to be in possession thereof. Court has thus committed grave illegality and error. Co-defendants are actually in possession of the suit land. Significantly plaintiff’s suit was not for possession either. Moreover, he had to affix prescribed Court fee which he failed to do. 15. Surprisingly, lower appellate Court passed a decree, holding him to be in possession thereof. Court has thus committed grave illegality and error. Co-defendants are actually in possession of the suit land. Significantly plaintiff’s suit was not for possession either. Moreover, he had to affix prescribed Court fee which he failed to do. 15. Question of limitation of challenging the revenue entries also arises in the instant case. As discussed supra, delay between the period 1964 till the year 1989 remains unexplained. Moreover, plaintiff has not been able to substantiate and establish his ignorance of deceipt/fraud. 16. Significantly, Dile Ram (PW-4), plaintiff’s own witness, has not supported him. Perusal of testimonies of all the witnesses would only establish ownership and possession of defendant Prabhi Devi over the suit land which subsequently stood transferred in favour of co defendants. 17. Mr. Verma, learned Senior Counsel, has emphatically argued that Misl Hakiat (Ex.P-20), for the year 1957-58 shows Rirku as a tenant. Since Santu died in the year 1958, therefore, Khasra Girdawari dated 31.3.1961 (Ex. P-21), reflecting Prabhi Devi as a tenant cannot be said to be a valid document. The contention only merits rejection, for the reason that Rirku transferred his tenancy in favour of the defendant, which fact was not disputed either by Santu or by his legal heirs. Also, Santu was a co-owner and transfer of tenancy was accepted by other owners. 18. It is further urged that defendant’s application (Ex. P-11) seeking conferment of proprietary rights, decided vide order (Ex. P-19), was without any application of mind, inasmuch as no evidence was recorded by the Competent Authority. The contention only merits rejection. Perusal of order shows that due process was followed. Notice was issued to all concerned and as none came forward to contest the same, ex-parte proceedings were conducted. No evidence was required to be led as revenue record was available. Order was made conditional, which was complied with by defendant Prabhi Devi. Amount of money stood accepted without any protest. In the year 1963-64, defendant had no reason to conspire and disinherit the plaintiff and his brother, whom she had undisputedly brought up as her own children. It has not come on record that Prabhi Devi had other children. Undisputedly, plaintiff started residing separately from the defendant. It appears that only after his hope of succession was lost, he filed the instant suit. 19. It has not come on record that Prabhi Devi had other children. Undisputedly, plaintiff started residing separately from the defendant. It appears that only after his hope of succession was lost, he filed the instant suit. 19. Learned counsel for the parties have invited my attention to the following decisions on various issues: 1. Vikram Singh Junior High School v. District Magistrate (Fin. & Rev.) and others, (2002) 9 SCC 509 ; 2. Raja Ram Kumar Bhargava (dead) by LRs. v. Union of India, AIR 1988 SC 752 ; 3. Dhulabhai etc. v. State of Madhya Pradesh and another, AIR 1969 SC 78 ; 4. Decision dated 7.3.2014, rendered by a Coordinate Bench of this Court in RSA No.509/2001, titled as Lekh Ram and others v. Roop Ram and others; 5. Chamko Devi and another v. Mohinder Singh and others,Latest HLJ 2011 (HP) 101; 6. Smt. Dano Devi & others v. Nanak Chand, 1998(1) SLJ 176; 7. Khajana Ram v. Ghungar,1997(2) SLJ 1283; 8. Chuhnia Devi v. Jindu Ram, 1991(1) Sim. L.C. 223; 9. Moti v. Ajudh Raj and another, 1991(1) Sim. L.C. 114; and 10. Sant Ram v. Faqiroo and another, 1984 Sim. L.C. 283. 20. The decisions rendered are based on a fact situation. They do not advance the case of parties, other than what has been discussed herein above. 21. Significantly, issue of jurisdiction was not pressed before the trial Court nor raised before the lower appellate Court. Be that as it may, the suit is maintainable, in view of the law laid down by the Full Bench of this Court in Chuhnia Devi (supra). 22. Hence, the appeal stands allowed. The lower appellate Court erred in upsetting the otherwise well reasoned judgment passed by the trial Court. Findings returned by the first appellate Court cannot be said to be based on complete and correct appreciation of the material so placed on record by the parties. Such erroneous findings have resulted into miscarriage of justice. Substantial questions of law are answered accordingly. 23. Findings returned by the first appellate Court cannot be said to be based on complete and correct appreciation of the material so placed on record by the parties. Such erroneous findings have resulted into miscarriage of justice. Substantial questions of law are answered accordingly. 23. As such, the appeal is allowed and the judgment and decree passed by the first appellate Court in Civil Appeal No.70 of 1995, titled as Tulsi Ram (now deceased) through his LRs v. Prabhi Devi (now deceased) through LRs and others is set aside and that of the trial Court in Civil Suit No.33-1 of 1989, titled as Tulsi Ram v. Prabhi and others is upheld. Appeal stands disposed of, so also pending application(s), if any.