Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 510 (HP)

Bakshi v. Nazar Beg

2014-04-30

TARLOK SINGH CHAUHAN

body2014
Judgment : Tarlok Singh Chauhan, Judge (Oral). The plaintiffs are the appellants, who have preferred this Regular Second Appeal against the judgment and decree dated 26.07.2012 passed by the learned District Judge, Chamba, in Civil Appeal No.4/2011 whereby he upheld the judgment and decree dated 15.01.2011 passed by the learned Civil Judge (Senior Division), Chamba, in Civil Suit No.215/10/03. 2. The brief facts may be noticed thus: the plaintiffs had filed a suit against the respondents/defendants seeking declaration on the plea that they are owners in possession of the property comprised in Khata Khatauni No.64/85, Khasra No.564, measuring 03-00-00 bighas, situated in mauza Nanori, Pargana Bhadnota, Tehsil Churah, District Chamba, H.P. (hereinafter referred to as the suit land) which is in the shape of “Gair Mumkin Makan”. It was averred that the defendant had approached the plaintiffs and requested them to allow her to stay in the suit property since she had no house to live or means to construct a house for herself and her family and taking pity on the defendant, the plaintiffs accepted the request and allowed the defendant to stay in the suit property without any rent till she would not be in a position to construct the house. It was further averred that the defendant proved to be a clever lady since in connivance with the revenue officials, she got herself entered in the column of cultivation as ‘DAVEDAR BAI’ behind their back and without the knowledge of the plaintiffs which is wrong and illegal. 3. It was also averred that the def endant Sardar Bibi also tried to get the ownership of the suit property by getting mutation No.46 in her favour in connivance with Halqua Patwari on the basis of alleged oral sale which fact was found incorrect after inquiry by the Field Kanungo, who recommended the cancellation of the mutation. The plaintiffs came to know about the wrong entry recently when the defendant had shown intention of reconstruction of a new house after demolition of old one. It was further pleaded that in the month of May, 2003, when the defendant was asked to vacate the suit property, she refused to do so and the defendant is threatening the plaintiffs to demolish the suit property and construct a new house. The defendant has no right, title or interest over the suit property. It was further pleaded that in the month of May, 2003, when the defendant was asked to vacate the suit property, she refused to do so and the defendant is threatening the plaintiffs to demolish the suit property and construct a new house. The defendant has no right, title or interest over the suit property. The plaintiffs have sought declaration that the defendant is in permissible possession of the suit property and also have sought relief for possession of the suit property and to restrain the defendants by way of injunction. 4. The defendants contested and resisted the suit filed by the plaintiffs by filing written statement wherein the defendants raised preliminary objections regarding maintainability, estoppel and the suit being not properly valued for the purpose of Court fee and jurisdiction. On merits, it was averred that there are two houses in Khasra No.564 which are in existence for the last 40 and 20 years respectively. It was further averred that the long standing entries in the revenue papers go to show that she (defendant) is owner in possession of the suit property as the plaintiffs were fully aware of the revenue entries but they have not challenged those entries and the rest of the contents of the plaint were denied in toto. However, it was admitted that the mutation in favour of the defendant was cancelled. 5. The plaintiffs filed replication denying the averments made in the written statement and reiterated and reaffirmed the averments made in the plaint. 6. From the pleadings of the parties, the following issues were framed by the trial Court on 30.04.2004 and additional issue No.3(A) was framed on 01.01.2011:- 1. Whether the plaintiffs are owners in possession of the suit property? OPP. 2. Whether the plaintiffs are entitled to the decree of declaration that the possession of defendant of suit property as ‘Davedar bai’ as shown in the jamabandi is wrong, illegal, incorrect and void as alleged? OPP. 3. If issue No.1 and 2 decided in favour of plaintiffs, whether the plaintiffs are entitled to the relief of possession and permanent prohibitory injunction restraining the defendant from changing the nature of the suit property? OPP. 3(A). Whether oral sale stood cancelled vide order in mutation No.46 passed by A.C. 1st Grade, Churah? OPP. 4. Whether the suit of the plaintiffs is not maintainable in the present form? OPD. 5. OPP. 3(A). Whether oral sale stood cancelled vide order in mutation No.46 passed by A.C. 1st Grade, Churah? OPP. 4. Whether the suit of the plaintiffs is not maintainable in the present form? OPD. 5. Whether the plaintiffs are estopped by their own act and conduct to file the present suit? OPD. 6. Whether the suit of the plaintiffs is not properly valued for the purpose of court fee and jurisdiction? OPD. 7. Relief. 7. The learned trial Court after recording and evaluating the evidence on record dismissed the suit filed by the plaintiffs and the appeal preferred by the plaintiffs before the learned lower appellate Court also met with the same fate as before the learned trial Court. The plaintiffs still aggrieved are before this Court by way of the present appeal. On 03.01.2014, this Court admitted the appeal on the following substantial questions of law:- 1. Whether the findings recorded by the learned lower Courts below are perverse and based on misreading and misconstruction of the pleadings as also oral and documentary evidence? 2. Whether the long standing entries in the revenue record in respect of ownership, without any nexus as to how these entries have been made in the revenue records can pass any title of property in favour of defendants? 8. I have heard Shri Nimish Gupta, Advocate, for the appellants and Ms.Vidushi Sharma, Advocate, for respondent No.1 and gone through the records of the case. 9. The learned Courts below have concurrently relied upon the long standing revenue entries in favour of the defendant starting from the years 1964-65 till 2003-04 which are exhibited on record as Ex.DB to Ex.DJ showing the defendant as “DAVEDAR BAI” (the claim being based on sale). Not only this, there is also on record (Nakal copy) of “Roznamcha Waqaiti” dated 11.08.1961(Ex.DA) showing that the suit property had been sold by way of oral sale by one Dayalu son of Fajla to Ashraf Beg son of Hasan Beg for a sale consideration of Rs.60/-and the property had been handed over to him. It may be observed here that the said Ashraf Beg is none other than the predecessor-in-interest of the defendants No.1 to 3. 10. No doubt, there is an extract of ‘Intkal’ (mutation No.46) Ex.PX in which it is stated that the aforesaid mutation has been rejected by the Assistant Collector 1st Grade, Churah, on 04.06.1963. It may be observed here that the said Ashraf Beg is none other than the predecessor-in-interest of the defendants No.1 to 3. 10. No doubt, there is an extract of ‘Intkal’ (mutation No.46) Ex.PX in which it is stated that the aforesaid mutation has been rejected by the Assistant Collector 1st Grade, Churah, on 04.06.1963. However, the learned Courts below despite this order have held that the mutation entered on 04.06.1963 was found to be unnecessarily entered by the Revenue Officer and, therefore, the learned Courts below held that even if the mutation was cancelled even then there was nothing on the record to suggest that the oral sale was cancelled. The learned Courts below have further concurrently held that the Assistant Collector 1st Grade, Churah, had not conducted any inquiry before ordering the cancellation of the mutation. Further, the learned Courts below held that even if it is assumed that this mutation was cancelled, even then, it would have no bearing on the right, title or interest of the defendant because mutation in itself does not create or extinguish the title. 11. Shri Nimish Gupta, learned counsel for the appellants has strenuously argued that the defendant has not been able to prove her ownership over the land in dispute. Suffice it to say, that it is the plaintiffs, who were required to prove their pleaded case by leading cogent, reliable and convincing evidence and cannot be permitted to rely upon the weaknesses of the case set up by the opposite party. 12. This Court in Karam Chand and others versus Paras Ram and another , RSA No.243 of 2002, decided on 28.04.2014, held as under:- “14. It is settled law that the plaintiffs have to stand their own legs. Any defect or lacuna in the defence case cannot support the plaintiffs leg to stand, rather the plaintiffs must prove the case to the satisfaction of the Court for getting a decree in their favour. The plaintiffs cannot be permitted to take advantage of the weakness in the defence.” 13. Even otherwise, the plaintiffs were required to prove how the long standing entries in the revenue record were wrong or illegal because presumption of truth is attached to the said entries in terms of Section 45 of the H.P. Land Revenue Act which reads thus:- “45. Even otherwise, the plaintiffs were required to prove how the long standing entries in the revenue record were wrong or illegal because presumption of truth is attached to the said entries in terms of Section 45 of the H.P. Land Revenue Act which reads thus:- “45. Presumption in favour of entries in records-of-rights and [periodical) records.- An entry made in a record of rights in accordance with the law for the time being in force, or [a periodical] record in accordance with the provisions of this Chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor: Provided that notwithstanding anything contained in this section any entry made, [in the areas comprised in Himachal Pradesh immediately before 1st November, 1966] [during the period between the first day of April, 1948 and the first day of April, 1956] in record of rights or in [ a periodical] record whereby the land is shown as under self cultivation shall not be presumed to be true: [Provided further that the record-of-rights and periodical record, prepared by means of computerization in the prescribed manner shall be presumed to be true and shall be deemed to have been prepared under this chapter.]” Unfortunately, the plaintiffs again have not led any reliable, cogent and convincing evidence to this effect. The findings recorded by the learned Courts below are pure findings of fact which cannot be interfered with by this Court in exercise of its power under Section 100 of the Code of Civil Procedure. Both the substantial questions of law, as framed, are accordingly answered. 14. Resultantly, the appeal is dismissed, so also the pending application, if any, leaving the parties to bear their own costs.