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2015 DIGILAW 1170 (HP)

Atma Ram v. Surji

2015-08-26

RAJIV SHARMA

body2015
Judgment : Justice Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned Additional District Judge (I), Mandi, H.P. dated 29.6.2013, passed in Civil Appeal No.93/12/11. 2. Key facts, necessary for the adjudication of this regular second appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs), have instituted a suit for declaration and injunction with a prayer for consequential relief for permanent prohibitory injunction against the appellants defendants(hereinafter referred to as the defendants). According to the plaintiffs, the proprietary rights were conferred on Masadi and Basantu during their life time and after their death the suit land was inherited by the legal representatives of Basantu having half share. The plaintiffs alongwith their brother Bhagat Ram and defendant No. 4 Smt. Thopali each had ¼ share in the half of the suit land. The defendant No. 4 sold her share and the LRs of Masadi also sold their share to other defendants recorded as owner-in-possession of the suit land in excess to their entitlement, thus, decreasing the share of the plaintiffs, without their knowledge. The plaintiffs have never sold their share to any of the defendants nor created any tenancy to any of the defendants. Sh. Bhagat Ram, brother of the plaintiffs died during the pendency of the suit. He was deaf and dumb. He was living in the care and custody of his sister i.e. plaintiff No.1. Defendant No. 2 in connivance with defendant No. 1 and his mother Kununu manipulated wrong and illegal General Power of Attorney from Bhagat Ram. No such General Power of Attorney was ever executed by Bhagat Ram. The mutation Nos. 493 and 494 were attested on the basis of the sale made to father of defendant No. 8, in an illegal manner. The defendant No. 1 Atma Ram had moved an application for correction of revenue entries against Bhagat Ram in connivance with defendant No. 2 and obtained order of Tehsildar on 16.6.1994. The entries regarding Kh. Nos. 1253, 1227 and 1254 were wrongly recorded. No General Power of Attorney was ever given by the mother of Bhagat Ram i.e. Smt. Purni Devi to compromise the suit. Mutation No. 208 dated 28.4.1974 was illegal. The defendants started interfering with the suit land in the month of November, 2003. The matter was reported to the Deputy Commissioner, Mandi, vide letter dated 17.4.2004. No General Power of Attorney was ever given by the mother of Bhagat Ram i.e. Smt. Purni Devi to compromise the suit. Mutation No. 208 dated 28.4.1974 was illegal. The defendants started interfering with the suit land in the month of November, 2003. The matter was reported to the Deputy Commissioner, Mandi, vide letter dated 17.4.2004. The cause of action has arisen in their favour in the month of November, 2003. The defendants were asked by the plaintiffs to get the entries corrected, however, they refused to do so in the month of March, 2005. The suit was instituted praying for declaration to the effect that plaintiffs, deceased Bhagat Ram and defendant No. 4 have equal shares in the suit land. The share of Bhagat Ram after his death has been inherited by plaintiffs and defendant No. 4 i.e. 1/3rd share each in the half of the suit land. The entries in the revenue record reducing the share of the plaintiffs, the alleged General Power of Attorney of Bhagat Ram, order dated 16.6.1994 passed by Tehsildar regarding the correction of revenue entries have been prayed to be declared as illegal, wrong, null and void. The alleged sale made by defendant No. 7 in favour of defendant No. 6 was illegal, null and void. 3. The suit was contested by the defendants. According to the written statement filed by defendants No. 2 & 4, Bhagat Ram was of sound disposing mind. He has executed the general power of attorney and mutation Nos. 493 and 494 were properly attested. The defendants No. 1 & 3 have stated in their written statement that the revenue entries have not been changed and previous possession of Masadi and Basantu have been admitted. Smt. Kununu has been conferred the proprietary rights in the suit land. It was also denied that plaintiffs alongwith Bhagat Ram and defendant No. 4 have ¼ share in the half of the suit land. Defendant No. 8 has stated in the written statement that she has purchased the part of the suit land in the year 1983, being a bonafide purchaser. Defendant No. 6 stated in his written statement that the land comprised in Khewat No. 179, Khatauni No. 315, Kh. No. 1228, measuring 2-0-16 bighas situated in village Kota Dhar is exclusively owned and possessed by him. Defendant No. 6 stated in his written statement that the land comprised in Khewat No. 179, Khatauni No. 315, Kh. No. 1228, measuring 2-0-16 bighas situated in village Kota Dhar is exclusively owned and possessed by him. Earlier Purnu, Kunanu and Bhagat Ram filed a suit against defendant No. 6 and in that suit Pune Ram, General Power of Attorney holder of plaintiff compromised the same on 18.8.1986 with defendant No. 6 and that defendant No. 6 gave Rs. 800/- and consequently the appeal filed by the plaintiffs was dismissed. 4. The replication was filed by the plaintiffs. The learned trial Court framed the issues on 14.9.2009. The suit was decreed vide judgment dated 24.8.2011. Defendants Atma Ram and Smt. Maltu, preferred an appeal against the judgment and decree dated 24.8.2011. Smt. Indira Devi also filed an appeal against the judgment and decree dated 24.8.2011 bearing Civil Appeal No. 117 of 2011. Both the appeals were dismissed by the learned Additional District Judge(I), Mandi, on 29.6.2013. Hence, this regular second appeal by Atma Ram. 5. Mr. R.L.Chaudhary Advocate, for the appellants, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below have misread the documentary as well as the oral evidence placed on record. The General Power of Attorney Ext. DW-1/A was duly executed. He also contended that the suit was barred by limitation. He then contended that the Civil Court had no jurisdiction to declare order dated 16.6.1994 as illegal. On the other hand, Mr. G.R.Palsra and Mr. Vikrant Chandel, Advocates for the respective respondents have supported the judgments and decrees passed by the Courts below. 6. I have heard the learned Advocates for the parties and gone through the records of the case carefully. 7. Since all the substantial questions of law are inter-connected, hence are taken up together to avoid repetition of discussion of evidence. 8. Plaintiff Surji Devi has appeared as PW-1. According to her statement-affidavit, previously Masadi and Basantu were marusi tenants over the suit land and proprietary rights were granted to them. The legal representatives of Basantu were having half share and the legal representatives of Masadi became entitled for the half share in the suit land. PW-2 Shanti Lal Patwari and PW-3 Farman Singh have corroborated the statement of PW-1 Surji Devi. The legal representatives of Basantu were having half share and the legal representatives of Masadi became entitled for the half share in the suit land. PW-2 Shanti Lal Patwari and PW-3 Farman Singh have corroborated the statement of PW-1 Surji Devi. PW-4 Gulab Singh has also stated that half share in the suit land went to the legal representatives of Bansatu. DW-6 Atma Ram has categorically admitted that the suit land was earlier owned by Masadi, Basantu and Gaddi. On the death of Gaddi, Basantu and Masadi were cultivating the suit land as non-occupancy tenants. Bhagat Ram, Surji, Thopali and Mahajanu received the share of Basantu and only the share of Masadi went to Atma Ram. The defendants have admitted the joint nature of the suit land. The plaintiffs have conclusively proved that the suit land was originally owned and possessed by the legal representatives of Basantu, namely, Bhagat Ram, Surji Devi, Thopali and Mahajanu. 9. Now, the Court will advert to the question as to whether the General Power of Attorney Ext. DW-1/A, was executed in accordance with law. Bhagat Ram was deaf and dumb. He was feeble minded. The General Power of Attorney is dated 1.11.1983. The judgment of the Civil Court Ext. P- 1, dated 9.11.1981 describes Bhagat Ram son of Basantu son of Dhaniya as deaf and dumb. He was sued through next friend i.e. his mother Smt. Purnu. PW-3 Farman Singh testified that Bhagat Ram was mentally feeble and was deaf and dumb. PW-4 Gulab Singh has corroborated the statement of PW-3 Farman Singh. According to the defendants, Bhagat Ram had put his thumb impression on the General Power of Attorney after understanding the contents of the same to be true and correct. Ext. DW-1/A was scribed by DW-1 Dina Nath Sharma. However, he has admitted that he was not personally known to him. DW-2 Yog Raj was the witness of DW-1/A. He has stated that Bhagat Ram was not deaf and dumb. He was confronted with Mark “Y”, whereby Bhagat Ram was shown to be represented through next friend. DW-2 Yog Raj had no knowledge as to whether Bhagat Ram was married or not. The statement of DW-3 Bhagwan Dass does not support the case of the defendants. The other witness of General Power of Attorney is Atma Ram. He is none other than defendant No. 1. According to the judgment Ext. DW-2 Yog Raj had no knowledge as to whether Bhagat Ram was married or not. The statement of DW-3 Bhagwan Dass does not support the case of the defendants. The other witness of General Power of Attorney is Atma Ram. He is none other than defendant No. 1. According to the judgment Ext. PA, Bhagat Ram son of Basantu has been shown as deaf and dumb. He was sued through next friend i.e. mother. 10. The plaintiffs have led overwhelming evidence to prove that Bhagat Ram was deaf and dumb and he was of feeble mind. Thus, the General Power of Attorney executed vide Ext. DW-1/A was not legal. Sh. Pune Ram had sold the land in share of Bhagat Ram vide sale deed Ext. PW- 7/A on the basis of Ext. DW-1/A. Since the General Power of Attorney has been declared to be null and void, the sale executed by Pune Ram vide sale deed Ext. PW-7/A is also illegal. The Tehsildar has summoned Thopali, Mahajanu and Surji on 5.4.1994 to appear before him on 16.6.1994. They were proceeded ex-parte. The copies of the summons are marked as D, E and F, respectively. The service was effected by way of affixation, however, there was no order whereby the affixation was to be made for effecting service on Thopali, Mahajanu and Surji. It is not the case of the defendants that Thopali, Mahajanu and Surji were avoiding service. Thus, the order dated 16.6.1994 was also illegal and in violation of principles of natural justice. Similarly, any sale effected on the basis of the General Power of Attorney was illegal and void. 11. Mr. R.L.Chaudhary, Advocate, has also argued that the defendants have acquired title by way of adverse possession. However, no evidence was led to this effect by the defendants. It was necessary for the defendants to prove continuous, hostile and peaceful possession to the knowledge of the owners. 12. The cause of action has arisen to the plaintiffs in the month of November, 2003 and also on 7.3.2005. The defendants started interfering with the possession of the plaintiffs in the month of November, 2003. The defendants have refused to admit the claim of the plaintiffs on 7.3.2005. The revenue entries came to the knowledge of the plaintiffs in the month of November, 2003 after that written letter was addressed to the Deputy Commissioner, Mandi for correction of entries. The defendants started interfering with the possession of the plaintiffs in the month of November, 2003. The defendants have refused to admit the claim of the plaintiffs on 7.3.2005. The revenue entries came to the knowledge of the plaintiffs in the month of November, 2003 after that written letter was addressed to the Deputy Commissioner, Mandi for correction of entries. The letter dated 17.4.2004 has also been proved on record. These averments were not controverted by the defendants. Thus, it cannot be said that the suit was barred by limitation. Since the order dated 16.6.1994 has been passed in violation of principles of natural justice, the Civil Court had the necessary jurisdiction to decide the same. 13. Now, as far as the compromise dated 28.8.2006 is concerned, it has not come on record that compromise was for the benefit of Bhagat Ram who was being sued through next friend. Bhagat Ram was deaf and dumb. The learned trial Court has though declared sale made in favour of defendant No. 8 as void, but she has been held to be bonafide purchaser. Thus, defendant No. 1 was ordered to compensate defendant No. 8 for the loss caused to her while deciding issue No. 14. The Courts below have correctly appreciated the oral as well as documentary evidence on record. The General Power of Attorney Ext. DW-1/A was not legal and valid. The plea of adverse possession has neither been pleaded specifically nor any evidence has been led by the defendants to prove the same. 14. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any. The judgments and decrees passed by both the Courts below are affirmed.