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2014 DIGILAW 688 (HP)

Bhagat Ram v. Jeet Ram

2014-05-31

DHARAM CHAND CHAUDHARY

body2014
JUDGMENT : Dharam Chand Chaudhary, J. Plaintiffs are in second appeal before this Court. They have been aggrieved by the judgment and decree dated 7.3.2003, passed by learned Additional District Judge, Bilaspur, in Civil appeal No. 72 of 1994, whereby judgment and decree passed by learned Sub Judge, 1st Class, Ghumarwin, District Bilaspur, in Civil Suit No. 167/1 of 1988, has been affirmed. 2. The subject matter of dispute in the present lis is a piece of land, measuring 2.1 bighas, comprised in Khewat No. 3/3, Khatauni No. 7, Khasra No. 6, situate in village Babeli, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur (hereinafter referred to as "the suit land"), as per entries in the Jamabandi for the year 1981-82. The plaintiffs claim that the suit land was mortgaged by the defendant on 1.9.1959 and mutation Ext. P4 in this behalf was duly sanctioned and attested on 14.12.1959. The mortgage money, according to them, was Rs. 350/- and the interest payable on the mortgaged money and the produce from the mortgaged land, was equal. It was agreed upon that the plaintiffs may redeem the mortgage on payment of the mortgage amount. The defendant allegedly received double of the mortgage amount, however, when asked to redeem the mortgaged land, he failed to do so, hence the suit for decree of possession of the suit land by way of redemption of the mortgage and in the alternative for possession thereof on the basis of title. 3. The defendant, besides raising objections preliminary in nature qua maintainability, valuation of the suit, estoppel, limitation and jurisdiction of the Civil Court to entertain and try the suit, has claimed that the suit land was never mortgaged by the plaintiffs with him or his father and rather it is his father Hira Ram, who purchased the same in consideration of Rs. 1300/-. He paid Rs. 700/- towards part payment of the sale consideration on 1 Chaitra, Sambat 2010 and receipt Ext. DX to this effect was reduced into writing. According to the defendant, when his father died, he was minor at that time and his elder step-brother Daya Ram allegedly purchased 2.19 Bighas of land out of total land measuring 5 bighas in his own name, leaving 2.1 Bighas, the suit land, which is now in his (defendant's) possession. It has, therefore, been submitted that there is no question of mortgage of the suit land. It has, therefore, been submitted that there is no question of mortgage of the suit land. In the alternative, it has been claimed that in case the defendant fails to prove the agreement to sell the suit land, executed by the plaintiff, in that event he has acquired title in the suit land by way of adverse possession being in open, continuous and hostile possession thereof with the knowledge of the plaintiff w.e.f. Chaitra 1, Sambat 2010. Since the application under Order 6 Rule 17 CPC filed by the defendant for amendment in the written statement was allowed vide order dated 18.1.1993, therefore, he has raised the following additional plea in his defence: "5A That in case the defendant fails to prove the sale of the suit land as alleged in para 7 of the preliminary objections or in case the plaintiff is proved to be mortgagee of the suit land, even the defendant was non-occupancy tenant over the suit land, prior to the alleged mortgage and paying the rent and after coming into operation of the H.P. Tenancy and Land Reforms Act, 1972, the defendant has become owner over the suit land and that status of the defendant will revive." 4. On the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the plaintiffs mortgaged the suit land with possession in favour of the defendant on 1.9.1959 for Rs. 350. If so, to what effect? OPP. 2. If issue No. 1 is not proved, whether the plaintiffs are entitled for a decree of possession of the suit land on the basis of title? OPP 3. Whether Hira Ram father of the defendant purchased the suit land for consideration of Rs. 1300/- from Sh. Nihala Ram, father of the plaintiff vide writing dated 1 Chaitra Sambat 2010, as alleged? OPD 4. Whether the defendant is ready and willing to perform the remaining part of the contract as per writing dated 1 Chaitra Sambat 2010? OPD 5. If issue No. 3 is not proved whether the defendant has acquired the title over the suit land by virtue of adverse possession? OPD 6. Whether the suit is not maintainable? OPD 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 8. Whether this Court has no jurisdiction to hear and decide the suit? OPD 9. OPD 6. Whether the suit is not maintainable? OPD 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 8. Whether this Court has no jurisdiction to hear and decide the suit? OPD 9. Whether the plaintiffs are estopped by his own acts, conducts, omissions and commissions to file the suit? OPD 10. Whether the plaintiffs have no locus standi to file the suit? OPD 11. Whether the suit is time barred? OPD 12. Relief. 5. Learned trial Court after having taken on record the oral as well as documentary evidence produced on both sides and on an appreciation thereof, has discarded the claim of the plaintiff qua mortgage of the suit land with the defendant on 1.9.1959 and that of the defendant that he acquired the same on payment of consideration as per the agreement to sell Ext. DX and also the claim he laid in the alternative that he acquired title in the suit land by way of adverse possession. The defendant, however, was found to be in possession of the suit land in the capacity of non-occupancy tenant on payment of rent well before 1.9.1959, the date of alleged mortgage and the mutation Ext. P4 qua mortgage of the suit land with the defendant was found to be managed by the plaintiffs in connivance with the revenue staff. Therefore, the plaintiffs were not found entitled to the possession of the suit land by way of redemption of the mortgage nor on the basis of their alleged title for the reason that on the conferment of proprietary rights in terms of H.P. Tenancy and Land Reforms Act, 1972 upon the defendant, he has been held to be absolute owner in possession thereof. The suit, therefore, has been dismissed. 6. The plaintiffs though assailed the judgment and decree passed by learned trial Court in the Court of learned District Judge, Bilaspur, however, unsuccessfully because vide judgment and decree under challenge in this appeal, learned lower appellate Court has dismissed the appeal and affirmed the judgment and decree passed by learned trial court. 7. The suit, therefore, has been dismissed. 6. The plaintiffs though assailed the judgment and decree passed by learned trial Court in the Court of learned District Judge, Bilaspur, however, unsuccessfully because vide judgment and decree under challenge in this appeal, learned lower appellate Court has dismissed the appeal and affirmed the judgment and decree passed by learned trial court. 7. The challenge to the impugned judgment and decree is on the grounds, inter alia, that in view of the admission qua mortgage of the suit land by the plaintiff with the defendant, as reflected in para 5 of the judgment passed by learned trial Court, the suit should have been decreed. When the trial Court has negated the plea of acquiring the suit land by the defendant from the plaintiffs by way of purchase and in the alternative acquiring title therein by way of adverse possession, the only alternative left with both the Courts below was to have decreed the suit. The impugned judgment and decree, therefore, is not based on the given facts and circumstances and also the evidence available on record and rather on surmises and conjectures. The same allegedly being perverse has been sought to be quashed and set aside. 8. The appeal has been admitted on the following substantial questions of law: 1. Whether in view of the admission of the transaction of mortgage by the mortgagee, could the mortgager be disentitled for a decree for possession by way of redemption when the plea of adverse possession/purchase stood negatived by the lower appellate Court? 2. Whether the lower appellate Court is justified in holding the defendant as a tenant over the suit land without such a plea being raised by the defendant? 9. Mr. Rakesh Chandel, learned counsel, representing the plaintiffs-appellants has urged that on account of misreading and misconstruing the given facts and circumstances and also the evidence available on record, the judgment and decree passed by both the Courts below have vitiated and not legally sustainable. It has, therefore, been urged that the substantial questions of law as formulated are fully substantiated from the record and as such, the impugned judgment and decree being not legally and factually sustainable, deserves to be quashed and set aside. 10. On the other hand, Mr. It has, therefore, been urged that the substantial questions of law as formulated are fully substantiated from the record and as such, the impugned judgment and decree being not legally and factually sustainable, deserves to be quashed and set aside. 10. On the other hand, Mr. Ashwani Sharma, learned counsel, representing the defendant-respondent, while drawing attention of this Court to the material available on record, has urged that the defendant nowhere admitted the plaintiffs having mortgaged the suit land with him for a sum of Rs. 350/-, as mortgage money. It has also been pointed out from the written statement that the plea of tenancy has duly been raised and as such, it lies ill to say that such a plea has not been raised by the defendant. Mr. Sharma has, therefore, urged that there is no question of law, which needs to be adjudicated upon in this appeal, what to speak of substantial question of law, so formulated nor the impugned judgment and decree is legally and factually unsustainable. 11. Examining the first substantial question of law hereinabove with the help of pleadings of the parties and the evidence available on record, it is worthwhile to mention here that the defendant has nowhere admitted in the written statement that the suit land was mortgaged by the plaintiffs with him for a sum of Rs. 350/-, as mortgage money. In the preliminary objections and also in the written statement on merits, he has categorically denied the mortgage of the suit land by the plaintiffs either with his father Nihala or with him. 12. On the other hand, reading of para 5 of the judgment passed by the trial Court amply demonstrates that learned trial Judge never intended to say that the defendant has admitted the mortgage of the suit land by the plaintiffs with him as one word "now" in second line of this para has been scored out, may be for re-writing the same by way of correction, as "not", however, seems to have omitted inadvertently to do so. When in the written statement the defendant has denied this part of the plaintiffs' case being wrong, due weightage is required to be given to such pleadings in the written statement. The present, therefore, is not a case of an admission qua mortgage of the suit land by the plaintiffs with the defendant. 13. When in the written statement the defendant has denied this part of the plaintiffs' case being wrong, due weightage is required to be given to such pleadings in the written statement. The present, therefore, is not a case of an admission qua mortgage of the suit land by the plaintiffs with the defendant. 13. No doubt, the plea of the defendant qua acquiring of suit land by him by way of sale and on the basis of title he allegedly acquired therein by way of adverse possession has been discarded by both the Courts below, however, the plea of tenancy, as set out by him in his defence being duly supported by the documentary evidence on record, has been accepted. Reference in this behalf can be made to the entries in the Jamabandi for the year 1954-55 Ext. D3, which show that the land, measuring 12-19 bighas of which the suit land is a part, was recorded in the name of the defendant and his brother Daya Ram as non-occupancy tenant, on payment of Rs. 5/- as rent "Saal Tamam". Learned trial Judge has, therefore, rightly dismissed the suit, as the plea of mortgage raised by the plaintiffs was not at all proved. The brother of the defendant seems to have purchased land measuring 4.01 bighas vide sale deed Ext. 1.7.1957, Ext. R-1 at such a stage when the defendant was minor. At the time of attestation of mutation Ext. P4 on the basis of so called mortgage, the defendant was minor. However, since he was recorded in possession of the suit land in the capacity of non-occupancy tenant and was minor, therefore, the mutation so attested and sanctioned being behind his back, is illegal having no binding force, particularly when the plaintiffs have failed to prove as to in whose presence the same was attested and what material was taken into consideration at that time. 14. 14. If coming to the second substantial question of law that without there being any pleadings on record the defendant could have not been held as tenant, again there is no substance for the reason that the defendant had raised a specific plea qua he having been inducted as tenant over the suit land on payment of rent and being in possession thereof in the capacity of non-occupancy tenant, has acquired title therein on conferment of proprietary rights and as such has become absolute owner thereof. Both the Courts below have properly examined the plea so raised vis--vis the documentary evidence, more particularly Jamabandi Ext. D4 for the year1953-54 available record and have rightly non-suited the plaintiffs being neither having any title in the suit land nor in possession thereof. 15. In view of what has been stated hereinabove, there is no question of law much less a substantial question of law, which needs adjudication in this appeal. On the other hand, both the Courts below, on proper appreciation of the evidence available on record in its right perspective have held that the defendant has acquired title in the suit land on conferment of proprietary rights under the provisions of H.P. Tenancy and Land Reforms Act. The present, therefore, is not a case where it can be said that the Courts below have misread or misconstrued the facts of this case and also the evidence available on record and on account of that the judgment and decree impugned in this appeal being perverse is nullity. The same rather suffers from no illegality or infirmity and as such deserves to be upheld. 16. For the foregoing reasons, this appeal fails and the same is accordingly dismissed, however, with no order as to costs.