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2015 DIGILAW 1621 (HP)

Ujjagar Singh v. Mohinder Singh

2015-11-03

RAJIV SHARMA

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JUDGMENT : RAJIV SHARMA, J. 1. This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge, Sirmaur, District at Nahan, H.P. dated 27.2.2004, passed in Civil Appeal No. 43-N/13 of 2001/2000. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs) have filed a suit for declaration against the appellant-defendant No. 1 and proforma defendants No. 5 & 6 (hereinafter referred to as the defendants) to the effect that they are owners-in-possession of land comprised in Kh. No. 129/19, measuring 4-10 bighas, Khewat No. 9, Khatauni No. 13, as entered in copy of jamabandi for the year 1990-91, situated at village Nihal Garh, Tehsil Paonta Sahib (hereinafter referred to as the suit land) and the entries in favour of the defendants to the contrary are illegal and void. In the alternative, the plaintiffs also sought a decree for possession. The suit land was a part of Kh. No. 19 measuring 24 bighas 19 biswas as entered in the jamabandi for the year 1970-71. However, when the plaintiffs tried to cultivate a part of the land in Kh. No. 19, they were obstructed and defendant No. 1, namely, Ujjagar Singh declared that the plaintiffs were not the owners. They obtained the revenue record. The plaintiffs discovered that defendant No. 1 has got himself recorded over the suit land which entry was void. They also discovered that defendant No.1 in connivance with the revenue staff had got sanctioned mutation of exchange on 15.7.1975 No. 334 based upon some imaginary transaction in lieu of some land at Village Amarkot. The mutation was sanctioned behind the back of the plaintiffs. However, the plaintiffs had no land at Village Amarkot on 15.7.1975 and land in Khewat No. 18, Khatauni No. 47, Kh. No. 152/31 measuring 4-10 bighas as entered in jamabandi for the year 1991-92 at Amarkot was not in their ownership and possession and as such the entries have been manipulated by defendant No. 1. 3. The suit was contested by defendant No. 1. According to the averments made in the written statement, the plaintiffs were not in possession of the suit land. The plaintiffs were well aware of the entries in the record made in the year 1975. They were in possession of the land measuring 4-10 bighas at Village Amarkot comprised in Kh. 3. The suit was contested by defendant No. 1. According to the averments made in the written statement, the plaintiffs were not in possession of the suit land. The plaintiffs were well aware of the entries in the record made in the year 1975. They were in possession of the land measuring 4-10 bighas at Village Amarkot comprised in Kh. No. 31, which now is the land comprised in Kh. No. 152/31 which was given to them by him in exchange vide mutation No. 200 dated 28.7.1975 in lieu of suit land comprised in Kh. No. 129/19 given to him by the plaintiffs vide mutation No. 334 dated 28.7.1975. Both the mutations No. 334 and 200 were attested by the revenue officer Sh. C.M. Rewal, in presence of parties and thus the suit was barred by limitation. They have also become owners of the suit land by way of adverse possession. The defendant No. 2 filed separate written statement. According to the averments made in the written statement, the suit land in the name of defendant No. 1 was illegal and void which was not binding on the plaintiffs or upon him. 4. The replication was filed by the plaintiffs to the written statements of defendants No.1 & 2. The learned Sub Judge Ist Class, (2), Paonta Sahib, Distt. Sirmaur, H.P. framed the issues. The suit was partly allowed vide judgment dated 24.3.2000. The plaintiff Mohinder Singh, feeling aggrieved, preferred an appeal against the judgment and decree dated 24.3.2000. The learned Addl. District Judge, Sirmaur at Nahan, dismissed the same on 27.2.2004. Hence, this regular second appeal. 5. The regular second appeal was admitted on the following substantial questions of law on 4.8.2004: “1. Whether defect, if any, while attesting Mutation No. 334 Ext. AX and Mutation No. 200 Ext. D-10 for exchange of lands, would nullify the actual exchange of two sets of lands including the suit land in favour of defendant No. 1? 2. Whether pursuant to exchange of lands covered in Mutation No. 334 Ex. AX and Mutation No. 200 Ext. D-10, the parties acted thereon and, therefore, the plaintiffs are estopped from filing the suit?” 6. Mr. 2. Whether pursuant to exchange of lands covered in Mutation No. 334 Ex. AX and Mutation No. 200 Ext. D-10, the parties acted thereon and, therefore, the plaintiffs are estopped from filing the suit?” 6. Mr. Karan Singh Kanwar, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that both the Courts below have not correctly appreciated the documentary as well as the oral evidence, more particularly mutations No. 200 Ext. D-10 and No. 334 Ext. AX. He has also raised the plea of estoppel. On the other hand, Mr. K.D.Sood, Sr. Advocate, has supported the judgments and decrees passed by both the Courts below. 7. Since all the substantial questions of law are inter-connected, hence are taken up together for discussion to avoid repetition of evidence. 8. I have heard learned counsel for both the sides have also gone through the judgments and records of the case carefully. 9. PW-1 Mohinder Singh deposed that the total area measuring 24 bighas of land comprised in Kh. No. 19 was in their possession, they being the owners. He never exchanged any land nor he has land at Amarkot. He never gave any land from the disputed khasra number to the defendants nor did they took any land in return. He lives at village Nihal Garh. He specifically denied that the land measuring 4-10 bighas was given to defendants in exchange and mutation thereof was attested in their presence and that he was identified by his father and Numberdar. He also denied that 4-10 bighas of land was given to him at Amarkot. He denied that they are owners in possession of land measuring 4-10 bighas at Amarkot. 10. PW-2 Kewal Singh also stated that the defendants never came in possession of the suit land. In his cross-examination, he denied that the land measuring 4 ½ bighas at Amarkot was owned by the plaintiffs. He also denied that the plaintiffs had exchanged the land with the defendants. 11. DW-1 Ujjagar Singh deposed that the exchange was effected by Didar Singh and again improved it by saying that these were the plaintiffs who had given the land in exchange to him and he had given his land measuring 4 ½ bighas at Amarkot to them. These exchanges were effected in the year 1975 by the Revenue Officer. 12. 11. DW-1 Ujjagar Singh deposed that the exchange was effected by Didar Singh and again improved it by saying that these were the plaintiffs who had given the land in exchange to him and he had given his land measuring 4 ½ bighas at Amarkot to them. These exchanges were effected in the year 1975 by the Revenue Officer. 12. DW-2 Sarwan Singh deposed in examination-in-chief that exchange was effected between the plaintiffs and defendant No. 1 qua land at Nihalgarh and Amarkot. But, in his cross-examination, he simply deposed that such exchanges were not effected in his presence nor he knew the khasra numbers of the exchanged land. 13. The dispute, primarily revolves around mutation No. 200 Ext. D-10 and mutation No. 334 Ext. AX. There is a detailed procedure, as noticed by the learned first Appellate Court, for preparation of revenue record, as laid down in Sections 35 to 46 of the H.P. Land Revenue Act, 1954. The learned first Appellate Court has also referred to clause “b” sub para (4) of para 8 of the Himachal Pradesh Land Records Manual. It is evident from column No. 15 of the mutation No. 200 Ext. D-10 that the plaintiffs have not approached the Patwari with regard to acquisition by them of title by way of exchange. The parties allegedly, who exchanged their lands, are shown to be Rattan Singh, Ujjagar Singh (defendant No. 1) and Charan Singh on the one hand and Didar Singh, father of the plaintiffs, on the other. There is no evidence, as discussed hereinabove, to prove that the plaintiffs have approached Patwari qua exchange of land. In column No. 15, the Patwari did not note the date of making entries therein nor did he get the entries attested from the Lambardar concerned or Pradhan or Up-Pradhan of the concerned Gram Panchayat. In column No. 10 of mutation No. 200 Ext. D-10, the authors of the exchange, Rattan Singh, Ujjagar Singh (defendant No. 1) and Charan Singh are shown to have exchanged their land with that of Didar Singh. The names of plaintiffs, Mohinder Singh, Partap Singh and Darshan Singh were written alongside the cutting. Neither the cuttings nor the incorporation of the names of the plaintiffs has been attested by the Patwari or the Kanungo or the Revenue Officer, who has attested the mutation. The names of plaintiffs, Mohinder Singh, Partap Singh and Darshan Singh were written alongside the cutting. Neither the cuttings nor the incorporation of the names of the plaintiffs has been attested by the Patwari or the Kanungo or the Revenue Officer, who has attested the mutation. It is also evident from order dated 15.7.1975 that plaintiffs were not present at the time of making of the order. The order is purportedly made at Paonta Sahib and not at village Amarkot. 14. The plaintiffs' case throughout was that they have never appeared before the Revenue Officer at Paonta Sahib. The Patwari could not overlook the cuttings made in the revenue record while attesting the mutation. The defendants have not produced the mutation No. 334 before the trial Court but it was adduced in evidence at appellate stage vide Ext. AX, dated 28.7.1975. This mutation pertains to the exchange of suit land in Nihal Garh village with land of defendant No.1 in Amarkot village. In column No. 15, the parties who allegedly exchanged their land are plaintiff Mohinder Singh on the one hand and Ujjagar Singh (defendant No. 1) on the other. The entries in column No. 4 have not been attested by the Lumbardar or Pradhan or Up-Pradhan of the concerned Gram Panchayat. There are also cuttings in the Patwari's report and the name of defendant No.1 appears to have been incorporated alongside the cuttings. In column No. 9 of mutation No. 334, Ext. AX, the names originally written were Rattan Singh, Ujjagar Singh and Gurcharan Singh. The names of Rattan Singh and Gurcharan Singh were scored out. Didar Singh, who in column No. 15 of the mutation No. 200 is stated to have exchanged his land, is not shown to have given the suit land in exchange to defendant No. 1 in mutation No. 334. The persons, who are alleged to have given the suit land in exchange, are stated to be two of the plaintiffs, Partap Singh and Darshan Singh, vide mutation order dated 28.7.1975 Ext. AX. In the proceedings that allegedly took place on a previous date, i.e. 15.7.1975, only Amrik Singh and defendant Ujjagar Singh are stated to have admitted the exchange. They were allegedly identified by one Dasonda Singh, who has not been examined by the contesting defendant. AX. In the proceedings that allegedly took place on a previous date, i.e. 15.7.1975, only Amrik Singh and defendant Ujjagar Singh are stated to have admitted the exchange. They were allegedly identified by one Dasonda Singh, who has not been examined by the contesting defendant. The plaintiff has categorically stated in his statement while appearing as PW-1 that he has never exchanged any land. He was resident of Nihal Garh. There was o occasion for him to exchange the land at Amarkot without any justification. 15. The mutation Nos. 200 Ext. D-10 and 334 Ext. AX are not in conformity with law. Mutation does not confer any title. 16. Now, as far as the plea of adverse possession is concerned, the defendants have failed to prove the sine-qua-non of the same. The defendant No. 1 was required to prove that he was in possession of the suit property openly and to the knowledge of the plaintiffs. It cannot be gathered from the statement of DW-1 that he has acquired the title by way of adverse possession. It is evident from the evidence discussed hereinabove, that the plaintiffs cannot be estopped to file the present lis by act and conduct. The defendant No. 1 has failed to prove that he has exchanged his land at Amarkot with that of the plaintiffs at Nihal Garh. The independent witness DW-2 Sarwan Singh, in his crossexamination, has stated that the exchanges were not effected in his presence nor he knew the khasra numbers of the land involved in mutation Nos. 200 and 334. The substantial questions of law are answered accordingly. 17. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application (s), if any.