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2014 DIGILAW 989 (HP)

Chand @ Chaman Lal v. Amku

2014-07-28

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge. The appellants are the plaintiffs and have filed the present appeal against the judgement and decree dated 6.5.2002 passed by the learned District Judge, Mandi in Civil Appeal No. 22 of 1999. 2. The brief facts, as necessary for the disposal of the present appeal, are that plaintiffs filed a suit for declaration and injunction as consequential relief as against the defendants. The suit was originally filed by Rothal, predecessor-in-interest of the plaintiffs, hereinafter also referred to as plaintiff. It was alleged by the plaintiff that land in suit comprised in khasra numbers 202, 203, 210 and 210/1 measuring 14-14-16 bighas situated in village Patha was exclusively owned and possessed by the plaintiff and the entries to the contrary showing defendants as joint co-sharers in possession with the plaintiff of this land are wrong and illegal. It was alleged by the plaintiff that land in suit was part and parcel of the total land measuring 87-12-18 bighas and plaintiff was exclusive occupancy tenant in possession of 1/6th share out of the total land i.e. suit land. It was further alleged that plaintiff purchased right, title and interest of the land owners in the suit land for which mutation No.2 dated 28.9.1964 was duly attested by A.C. IInd Grade and plaintiff became exclusive owner in possession of the suit land. 3. It was further alleged that after attestation of the mutation it is not known to the plaintiff how name of the defendants appeared in the revenue record showing possession of defendants over the suit land jointly with the plaintiff which entry is wrong and illegal. It was also pleaded that vide mutation No. 56 proprietary rights were conferred wrongly by A.C. IInd Grade on 25.7.1975 without notice to the parties which are wrong and illegal and not binding upon the plaintiff. It was pleaded that plaintiff is in exclusive possession of the suit land since 1964 and on the basis of wrong entries, the consolidation officials have made allotment of suit land in favour of the plaintiffs and others as detailed in the plaint. Thus it was submitted that said allotment made in favour of the defendants is wrong and defendants are threatening to take possession of the suit land on that basis, hence suit was filed by the plaintiff. 4. The defendants resisted and contested the suit. Thus it was submitted that said allotment made in favour of the defendants is wrong and defendants are threatening to take possession of the suit land on that basis, hence suit was filed by the plaintiff. 4. The defendants resisted and contested the suit. They took up preliminary objections in regard to maintainability and limitation etc. On merits, they denied that plaintiff was in exclusive possession of the suit land as owner. They admitted that suit land was part and parcel of total land measuring 87-112-18 bigha but it was denied that the plaintiff was exclusive occupancy tenant in possession of 1/6th share out of the total land. Defendants pleaded that plaintiff and defendants were joint occupancy tenants in possession of 1/6th share out of the total land till acquisition of proprietary rights. The plaintiff had only purchased ownership rights 9but not occupancy rights which remained with the plaintiff and defendants. Mutation No. 2 dated 28.9.1964 was attested concerning ownership rights without disturbing the status of the plaintiff and defendants as joint occupancy tenants in possession. Thus it was pleaded that since defendants were continuing in joint possession and proprietary rights also conferred upon the parties and land has been allotted illegally by the consolidation staff. The plaintiff is not entitled to the relief claimed by him. 5. The learned trial court framed the following issues:- 1. Whether the plaintiff is entitled for the relief of injunction? OPP. 2. Whether the plaintiff is owner in possession of the suit land? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the suit is within limitation? OPP 5. Whether the defendant is entitled to the special costs as prayed for? OPD 6. Relief. 6. After recording the evidence and evaluating the same, the learned trial court decreed the suit, against which defendants pre3ferred an appeal and the learned lower appellate court vide its judgment and decree dated 6.5.2002 allowed the appeal and set-aside the judgment and decree passed by the learned trial court, which has given rise to the present appeal. 7. The appeal came up for consideration on 20.8.2002, on which date it was admitted on the following substantial question of law:- Whether the impugned judgment and decree in appeal passed by learned first appellate court is sustainable in the eyes of law? 8. 7. The appeal came up for consideration on 20.8.2002, on which date it was admitted on the following substantial question of law:- Whether the impugned judgment and decree in appeal passed by learned first appellate court is sustainable in the eyes of law? 8. I have heard learned counsel for the parties and have carefully and meticulously examined the records of the case. At the outset, it may be pointed out that the plaintiff has not placed on record any document prior to 1964 whereby it could be established that he alone was the occupancy tenant in possession of 1/6th share and for non-production of the said document an adverse inference under section 114(g) is required to be drawn against the appellant- plaintiff. This is so because the specific case of the plaintiff is that he purchased the proprietary rights of the land owner on the basis of which mutation No.2 dated 28.9.1964 had been attested in his favour, but then the fact remains that if the plaintiffs were already occupancy tenants over this land, it could not have any effect over their right to remain in possession. Because at best the tenancy rights of the plaintiff had merged in ownership rights. 9. The plaintiffs have placed on record the order passed by the Director of Consolidation on 25.10.1994 wherein directions were issued to maintain status quo till the question of title is decided by the Civil Court. Ex. P-2 is the copy of jamabandi for the year 1977-78, which does not refer to the khasra number in dispute, but the area of the land tallies with the suit land and it refers to the ownership and possession of both the parties over the suit land. The other revenue record placed on record vide Ex. P-3 to Ex. P-6 are of no avail as the same also refers to the similar entries. Ex. P-7 is the copy of mutation attested in 1964 regarding purchase of ownership rights by the plaintiff. While Ex. P-8 is the copy of mutation dated 25.7.1995, vide which proprietary rights were conferred upon the parties. 10. The defendants on the other hand have also placed on record a number of documents. Ex. DW 1/A is the copy of jamabandi of settlement wherein an entry is made showing the plaintiffs and defendants in possession of the suit land as tenants over land measuring 14-14-16 bighas. Ex. 10. The defendants on the other hand have also placed on record a number of documents. Ex. DW 1/A is the copy of jamabandi of settlement wherein an entry is made showing the plaintiffs and defendants in possession of the suit land as tenants over land measuring 14-14-16 bighas. Ex. DW 1/B which is copy of jamabandi for the year 1966-67 also shows similar entries in regard to the suit land. Ex. DW 1/C shows the plaintiffs and defendants as owners of the suit land. Ex. DW 1/D, which is copy of jamabandi for the year 1982-83 reflects similar entries, while Ex. DW 1/E and Ex. DW 1/F refer to the land allotted to the defendants out of the suit land. It is clear from the documents as also the evidence led by the parties that both the parties were entered in possession as joint tenants which right would not be effected even if one of the tenants amongst joint tenants purchased the property in dispute, because it is settled proposition that “once a tenant always a tenant”. 11. There is nothing on record to even remotely suggests that tenancy rights of the defendants stood extinguished. If creation of tenancy is a bilateral agreement, which ought to be in writing then even the extinction of such right in the given facts and circumstances would be required to be by way of a written agreement. The plaintiff has failed to prove that he alone was the tenant over the suit land prior to its purchase and that the name of his brothers (co-tenants) had been wrongly incorporated in the revenue record. Needless to say that presumption of truth is attached to the entries in the revenue record in accordance with the provisions of section 45 of Land Revenue Act, 1954 (for short, the Act), which provides as under:- 45. Needless to say that presumption of truth is attached to the entries in the revenue record in accordance with the provisions of section 45 of Land Revenue Act, 1954 (for short, the Act), which provides as under:- 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 Ist 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. 12. The learned counsel for the respondents is right in his submission when he submits that the suit of the plaintiffs itself was not maintainable because admittedly the proprietary rights were conferred in the year 1975-76. While the suit came to be filed only on 24.11.1992. The plaintiff was required to approach the court within the prescribed period of limitation and in any event within a reasonable time. There is no explanation worth the name as to why the suit was not filed immediately when the proprietary rights were conferred. The only ground taken in the suit is that since the defendants had threatened to take forcible possession of the suit land on 15.11.1992, therefore, the present suit was filed. 13. As already discussed above, there is no iota of evidence to show and prove that plaintiff alone was in possession of the suit land and there was no question of his being dispossessed much- less on the date as given in the plaint. 14. The findings recorded by the learned courts below are pure findings of fact and therefore, cannot be interfered with by this court in exercise of powers under section 100 CPC. 14. The findings recorded by the learned courts below are pure findings of fact and therefore, cannot be interfered with by this court in exercise of powers under section 100 CPC. The Hon’ble Supreme Court in Hero Vinoth (minor) vs. Seshammal (2006) 5 SCC 545 has laid down the following principles relating to Section 100 CPC :- (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where- (a) the courts below have ignored material evidence or acted on no evidence; (b) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (c) the courts have wrongly cast the burden of proof. But it is not an absolute rule. Some of the well recognized exceptions are where- (a) the courts below have ignored material evidence or acted on no evidence; (b) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (c) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 15. The case does not fall in any of the exceptions aforesaid. The substantial question of law as formulated above is accordingly answered. 16. In view of my aforesaid discussion, I find no merit in this appeal, which is dismissed, however, leaving the parties to bear their own costs.