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2015 DIGILAW 1309 (HP)

Taj Ali v. Charag Deen

2015-09-18

SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. This is the plaintiff’s Regular Second Appeal filed under Section 100 of the Code of Civil Procedure. 2. Plaintiff’s Civil Suit No. 130/1 of 91, titled as Shri Taj Ali vs. Shri Rashid Ali & others, stands decreed by the learned Sub Judge, Theog, District Shimla, H.P., in terms of judgment and decree dated 23.9.1998. Aggrieved thereof, defendants namely Charag Din, Hanif, Mahboob, Rasida, Gulab Singh, Mastana, Multana, Nurjhan and Munni filed an appeal which stands allowed in terms of judgment and decree dated 13.9.2001, passed by the learned District Judge, Shimla, H.P., in Civil Appeal No. 217-S/13 of 1998, titled as Shri Charag Din & others vs. Shri Taj Ali & others. 3. Barkat Ali had two sons namely Sher Ali and Abdulla @ Dulla. Sher Ali was married to Sahabi and Abdulla was married to Kresha. Through the loins of Sher Ali, Sahabi gave birth to Taj Ali (plaintiff) and Rashid Ali (defendant No. 1). Through the loins of Abdulla, Kresha gave birth to Bhadar Ali (defendant No. 3), Nazir Ali (predecessor in interest of defendants No. 4 to 15), Shaffi (predecessor in interest of defendants No. 16 to 20) and Taj Deen (predecessor in interest of defendants No. 21 to 25). After death of Abdulla, Sher Ali married Kresha and through her gave birth to Saraju Din and Punni. 4. Vide mutation No. 58, dated 9.11.49 estate of Sher Ali stood mutated in the names of Taj Din, Rashid Ali and Saraju Din. Revenue record reflected Taj Ali to be son of Abdulla and Taj Din to be son of Sher Ali. According to the plaintiff, such entries reflecting parentage are factually incorrect. Resultantly plaintiff filed a suit praying for the following relief: “It is thus prayed that it be kindly be declared that plaintiff is son of shri Sher Ali and not son of Abdulla and shri Taaj Din deceased was son of Abdulla and not son of shri Sher Ali and thus entry in the column of ownership in the jamabandi of Taj Din s/o Sher Ali be kindly held to be wrong and contrary to facts. Decree of Declaration to that effect may kindly be passed in favour of the plaintiff and against the defendants. Decree of Declaration to that effect may kindly be passed in favour of the plaintiff and against the defendants. The defendants be further be restrained by decree of perpetual Injunction from making the wrong Revenue entries as the basis of any right or title. The costs of the suit be awarded to the plaintiff. Such other relief as the court may deem fit be granted to the plaintiff.” 5. Contesting defendants No. 3, 21 and 24 filed a joint written statement, admitting parentage of Taj Ali, born to Sahabi through Sher Ali. However, Taj Din also pleaded to be born through Sher Ali and not Abdulla. 6. Based on the respective pleadings of the parties, trial Court framed the following issues: “1. Whether Taj Deen is son of Abdula @ Dulla, as alleged, if so its effect? OPP 2. Whether the suit is not maintainable as alleged? OPD 3. Whether the plaintiff is estopped to file the suit as alleged OPD 4. Whether the suit is time barred as alleged? OPD 5. Relief.” 7. Based on the evidence led by the parties, trial Court decided issued No. 1, holding plaintiff Taj Ali to be born through Sher Ali and Taj Deen to be born through Abdulla. Issues No. 2 and 3 were decided against the contesting defendants for want to evidence. Similarly Issue No. 4 was also decided for the reason that (i) entries of mutation were not effected in the presence of the plaintiff (ii) having learnt about the same, prompt action was taken. Hence suit was filed within the period of limitation. Thus decree was passed in the following terms:- “16. In view of my findings and observations given under aforementioned issued, the suit of the plaintiff is decreed. It is declared that deceased Sh. Taj Din was the son of Sh. Abdula and not the son of Sh. Sher Ali and accordingly, revenue entries showing Sh. Taj Din as the son of Sher Ali in the land comprised in khata No. 35 Khatauni No. 50 Kitas 16 measuring 44 bighas and 9 biswas situated in chak Hulli Pargna Chagaon, Tehsil Kotkhai Distt. Shimla are declared wrong, illegal and void. Similarly, mutation Ext. DB attested in Sambat 25.1.88 showing Sh. Taj Ali as the son of Sh. Abdula and mutation Ext. PH1 dated 13.10.49 regarding Taj-Ul- Din as the son of Sh. Shimla are declared wrong, illegal and void. Similarly, mutation Ext. DB attested in Sambat 25.1.88 showing Sh. Taj Ali as the son of Sh. Abdula and mutation Ext. PH1 dated 13.10.49 regarding Taj-Ul- Din as the son of Sh. Shar Ali are also declared wrong and illegal. Decree sheet be prepared accordingly. The file after completion be consigned to the record room.” 8. In terms of the impugned judgment, while reversing such findings, judgment and decree, the lower appellate Court dismissed the suit holding that: (i) There is presumption of correctness attached to the order of mutation (Ext. PH/1), pertaining to the estate of Sher Ali; (ii) such presumption stood unrebutted; and (iii) Since in para – 9 of the plaint challenge to the order of attestation of mutation, so effected on 9.11.1949 was laid only in the year 1990, suit was hopelessly barred by limitation. 9. Hence the present appeal, filed by plaintiff Taj Ali stands admitted on the following substantial questions of law:- “1. Whether the findings, as recorded by the learned District Judge are vitiated, on account of misreading or mis-appreciation of the pleadings of the parties and material on record. 2. Whether the ld. District Judge has mis-construed and mis-interpreted and has failed to appreciate oral, as well as, documentary evidence on record, especially the service record of late Taj Deen Ex. PW-5/A to Ex. PW- 5/C, Pariwar Register Ex. PA and copies of the Voter Lists Ex. PD to Ex. PH-1, wherein the deceased, Taj Deen is shown as son of Abdulla alias Dulla. 3. Whether in view of the admissions, as contained on behalf of Taj Deen in his affidavit Ex. PW-6/A, joining report of Taj Deen son of Abdulla, Ex. PW-5/B and medical report Ex. PW-5/C, the deceased has admitted that he was son of late Sh. Abdulla. 4. Whether the voter Lists Ex. PD, Ex. PE, Ex. PI and Ext. PG, being public documents and Pariwar Register Ex. PA have wrongly been ignored from consideration by the learned District Judge below. 5. PW-5/B and medical report Ex. PW-5/C, the deceased has admitted that he was son of late Sh. Abdulla. 4. Whether the voter Lists Ex. PD, Ex. PE, Ex. PI and Ext. PG, being public documents and Pariwar Register Ex. PA have wrongly been ignored from consideration by the learned District Judge below. 5. Whether the suit having been found within limitation by the trial court and in the absence of any challenge in the grounds of appeal, the suit could not have been held to be barred by the limitation by the Lower Appellate Court and the conclusions, as drawn by the Lower Appellate Court about the claim of the appellant are vitiated on account of wrong approach. 6. Whether the presumption of truth attached to the revenue entries in the revenue record, as relied upon by the Lower Appellate Court are amply rebutted on the basis of the oral, as well as, documentary evidence on record, as produced by the appellant.” Substantial Questions of Law No. 1 to 4 and 6: 10. Substantial questions of law No. 1 to 4 and 6 essentially pertain to the paternity of Taj Ali and Taj Deen and as such are being considered and decided accordingly. 11. Record reveals that in the order of mutation, Taj Deen is shown as son of Sher Ali and Taj Ali is shown as son of Abdulla. In the written statement, contesting defendants themselves admit Taj Ali to have been born through Sher Ali. In this view of the matter, the lower appellate Court erred in holding that there was presumption of correctness of entries of mutation. That apart, perusal of the impugned judgment reveals that even though it noticed self serving documents revealing paternity of Taj Deen, relied upon by the trial Court, yet, it ignored to consider the same. 12. It cannot be disputed that Taj Deen was employed with the Government, at least w.e.f. 1980. His letter of appointment (Ext. PW-5/A) indicates name of his father to be Abdulla. Not only that, in his joining report (Ext. PW-5/B), he himself stated such fact. Crucially he also filed an affidavit (Ext. PW-6/A) to this effect. Now all this evidence stands ignored by the lower appellate Court. Also there is no discussion as to why reasoning adopted by the trial Court was illegal, erroneous or findings returned not borne out from the record. PW-5/B), he himself stated such fact. Crucially he also filed an affidavit (Ext. PW-6/A) to this effect. Now all this evidence stands ignored by the lower appellate Court. Also there is no discussion as to why reasoning adopted by the trial Court was illegal, erroneous or findings returned not borne out from the record. Presumption of long standing revenue entries is rebuttable, which in the given facts and circumstances, stood rebutted by the plaintiff. 13. It is a settled position of law that entries of mutation in the revenue record do not confer any title to the property. It is only an entry for collection of land revenue from the person in possession. The title to the property has to be on the basis of the title with regard to the acquisition of land and not by mutation entries. Unless contrary is established, entries of mutation are taken to be correct. [See: Durga Das vs. Collector & others, (1996) 5 SCC 618 {relied upon in Suman Verma vs. Union of India & others, (2004) 12 SCC 58 }; Balwant Singh & another vs. Daulat Singh (Dead) by LRs & others, (1997) 7 SCC 137 ; Mahila Bajrangi (dead) through LRs & others vs. Badribai w/o Jagannath & another, (2003) 2 SCC 464 ] 14. In this view of the matter findings returned by the lower appellate Court cannot be said to borne out from the record and as such are reversed and that of the trial Court affirmed. Substantial questions of law are answered accordingly. Substantial Question of Law No. 5: 15. While deciding the issue of limitation, the lower appellate Court heavily relied upon para-9 of the plaint which reads as under:- “9. That the cause of action has arisen to the plaintiff on 22-10-90 when the Assistant Collector 2nd Grade dismissed the application of the plaintiff for correction and directed the parties to file civil suit to get the entry corrected and also on such dates when the wrong entry in favour of Taaj Din as son of Shri Sher Ali has been incorporated.” 16. Significantly the appellate Court ignored para-8 of the plaint which reads as under:- “8. Significantly the appellate Court ignored para-8 of the plaint which reads as under:- “8. The plaintiff came to know of this wrong entry in 1986 and then filed an application under section 37 of H.P. Land Revenue Act before the Assistant Collector, 2nd Grade, Kot-Khai on 26-6-1986 and the said application was dismissed and decided by the Assistant Collector 2nd Grade Kot-Khai on 22-10-90 on the ground that party aggrieved by the wrong entry should seek redress in the civil court under section 46 of the H.P. Land Revenue Act, hence this suit.” 17. It cannot be disputed that the entry of mutation dated 9.11.1949 was assailed for the first time only in the year 1986. But then plaintiff has explained of having learnt about the same, immediately prior to initiation of action under the provisions of the H.P. Land Revenue Act. While rejecting such application, liberty was reserved, enabling the plaintiff to institute appropriate proceedings before a Civil Court. It was for this reason that in the year 1991 suit came to be filed. 18. This Court in Shiam Singh & others vs. Chaman Lal & others, 2011 (2) Shim. LC 1, has held that for a suit for declaration, limitation would begin to run not from the date of the entry affecting the right of the person concerned, but from the date when he feels aggrieved by the entry and it is the satisfaction of such person as to when does he feel aggrieved. Defendant cannot be heard to say that the plaintiff would have felt aggrieved by the entry at some earlier point of time or when it was actually made. The Court further held that:- “15. Learned counsel for the appellants submitted that the plaintiffs-respondents were out of possession of the suit land and, hence, their suit was not covered by the provision of Section 46 of H.P. Land Revenue Act. Submission is misconceived. Section 46 does not speak of physical possession of the subject matter or the land with respect to the entry of which a person is aggrieved, but the right of the plaintiff. The person should be in possession of the right and not the land, with respect to the entry of which he is aggrieved.……” “16. It is well settled proposition of law that possession of a co-sharer is the possession of all. The person should be in possession of the right and not the land, with respect to the entry of which he is aggrieved.……” “16. It is well settled proposition of law that possession of a co-sharer is the possession of all. A cosharer in exclusive possession holds the property for himself and also on behalf of the co-sharers not in physical possession. Such a co-sharer is an agent of other co-sharers, who are out of possession, in regard to their shares in the joint property. In view of this legal position, plaintiffs are to be presumed to be co-sharers with the defendants. This is especially so when the defendants-appellants have not taken the plea of ouster of the plaintiffs-respondents. Question is answered accordingly.” 19. In Daya Singh & another vs. Gurdev Singh (Dead) by LRs & others, (2010) 2 SCC 194 , Hon’ble the Supreme Court of India had the occasion to deal with a case where challenge to the entries reflected in the revenue record was laid after a period of 18 years. Upholding such action initiated by the aggrieved party, the Court framed a question to itself as to whether mere existence of an adverse entry in the revenue records would give rise to cause of action, as contemplated under Article 58 or would accrue when such right stood infringed or threatened to be infringed. Answering the same, relying upon Bolo vs. Koklan, (1929-30) 57 IA 325: AIR 1930 PC 270 and C. Mohammad Yunus vs. Syed Unnissa, AIR 1961 SC 808 the Court held that cause of action, would accrue only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. The Court further held that mere existence of an adverse entry in the revenue records would not give rise to cause of action. 20. The view stands reiterated in Board of Trustees of Port of Kandla vs. Hargovind Jasraj & another, (2013) 3 SCC 182 . 21. Now in the instant case also, plaintiff categorically pleaded and proved through his testimony of having acquired knowledge of incorrect entries, immediately prior to initiating action in the year 1986. In this view of the matter, the lower appellate Court erred in holding the plaintiff’s suit to be barred by limitation. As such, findings are reversed. 21. Now in the instant case also, plaintiff categorically pleaded and proved through his testimony of having acquired knowledge of incorrect entries, immediately prior to initiating action in the year 1986. In this view of the matter, the lower appellate Court erred in holding the plaintiff’s suit to be barred by limitation. As such, findings are reversed. Suit filed by the plaintiff cannot be said to be barred by limitation. Substantial question of law is answered accordingly. 22. Consequently the appeal is allowed and the findings of the trial Court are affirmed. Appeal stands disposed of accordingly, so also pending application(s), if any.