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2015 DIGILAW 1744 (HP)

Shyam Lal v. Mohan Lal

2015-11-30

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Solan, H.P., dated 25.7.2005, passed in Civil Appeal No. 87/S-13 of 2004. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff), has instituted suit for declaration and permanent injunction against the appellants-defendants (hereinafter referred to as the defendants). According to the plaintiff, late Sh. Ramdiya, son of Angru, son of Sh. Nagahia, had three sons, namely, Sh. Kahanu, Sanwalia and Surtia. Sanwalia and Surtia died issueless and had no legal heirs. Kahnu had three sons, namely, Sh. Ratia, Mushu and Daulu. Sh. Ratia and Mushu had no legal heirs. Sh. Daulu had one son i.e. the plaintiff. According to the plaintiff, he was the only legal heir of Mushu and Ratia as they died issueless. The defendants have got wrongly entered and attested mutation No. 501 dated 16.12.1992 in their favour claiming themselves to be the legal heirs of Sh. Mushu son of Kahanu son of Sh. Ram Diya and have got mutation attested, qua the suit land, as detailed in the plaint. The defendants and their mother fraudulently represented themselves to be the sons of Mushu son of Kahanu son of Ramdiya and mutation No. 501 of inheritance dated 16.12.1992 was vitiated by fraud and misrepresentation. The defendants and their predecessor-in-interest never resided in Mauja Sua, Tehsil, Kasauli, Distt. Solan, H.P. 3. The suit was contested by the defendants. It is admitted that Sh. Sanwalia and Sh. Surtia died issueless and they had no legal heirs. They also admitted that Kahanu had three sons, namely, Ratia, Mushu and Daulu. It was denied that Ratia and Mushu had no legal heirs. Infact, Ratia was married to Smt. Zafara and a son Dila Ram was born along with three daughters, namely, Sewati, Bala Devi and Kamla Devi. Mushu was married to Smt. Niyakoo and had two sons, namely, Kali Ram and Shyam Lal, the present defendants. The allegations regarding the mutation being fraud and illegal were denied. According to the defendants, mutation No. 501 dated 16.12.1992 was correctly attested. Sh. Mushu and Kahnu had left the village Sua to Village Basheel. 4. The learned Civil Judge (Jr. Divn.), Kasauli, Distt. Solan, framed the issues on 5.7.1994. The suit was dismissed vide judgment dated 13.9.2004. The allegations regarding the mutation being fraud and illegal were denied. According to the defendants, mutation No. 501 dated 16.12.1992 was correctly attested. Sh. Mushu and Kahnu had left the village Sua to Village Basheel. 4. The learned Civil Judge (Jr. Divn.), Kasauli, Distt. Solan, framed the issues on 5.7.1994. The suit was dismissed vide judgment dated 13.9.2004. The plaintiff, feeling aggrieved, preferred an appeal against the judgment and decree dated 13.9.2004. The learned District Judge, Solan, allowed the same on 25.7.2005. Hence, this regular second appeal. 5. The regular second appeal was admitted on 7.11.2005 by making observation that various substantial questions of law, as detailed in the grounds of appeal, arose for determination. 6. Mr. Rajnish K. Lall, Advocate, appearing on behalf of the appellants, on the basis of the substantial questions of law framed, has vehemently argued that the first appellate Court has misread Ext. PW-1/A and revenue record. According to him, the defendants were sons of Mushu. He has supported the judgment and decree of the trial Court dated 13.9.2004. On the other hand, Mr. Bhupinder Gupta, Sr. Advocate, for the respondent has supported the judgment and decree of the learned first appellate Court dated 25.7.2005. 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 the learned Advocates and have also gone through the judgments and records of the case carefully. 9. PW-1 Mohan Lal deposed that the suit land was in his possession since his forefathers. The defendants have no right over the suit land. He has produced copy of jamabandi of suit land Mark-A and of Village Basheel as Mark-B. He also proved copies of Shajra Nasab Ext. PW-1/A and PW-1/B. He has produced copy of jamabandi Ext. PW-1/C. He has denied in the cross-examination that the name of the wife of Ratia was Zafaria. PW-2 Prabhu Dayal deposed that the name of the father of plaintiff was Dulu Ram. Ratia and Mushu died issueless. PW-3 Ram Krishan deposed that the name of the father of plaintiff was Dulu. They were three brothers. The names of other two brothers were Ratia and Mushu. PW-4 Budh Ram deposed that the land was owned by the plaintiff. PW-5 Durga Dutt Attri has deposed that he has prepared the Shajra Nasab Ext. P-1. It was correct as per the record. They were three brothers. The names of other two brothers were Ratia and Mushu. PW-4 Budh Ram deposed that the land was owned by the plaintiff. PW-5 Durga Dutt Attri has deposed that he has prepared the Shajra Nasab Ext. P-1. It was correct as per the record. He has proved the copy of translation Ext. PW-1/A. PW-6 (Patwari) Jagdish has produced the record. According to him, the jamabandi for the year 1975-76 was prepared with black ink but the name of Ramdia was written with blue ink. He has admitted that tampering does not find mention in “Parat Padtal” i.e. Ext. P-2/A. 10. DW-1 Kali Ram deposed that Kahnu had three sons, namely, Dulu, Ratia and Mushu. The eldest son was Dulu. The marriage of his father was solemnized with Naiku. Mushu was born in Sua. Thereafter, they went to village Basheel. Kahnu was called Sadhu due to his simplicity in village Basheel. This fact was told to him by the villagers. His father died in the year 1975. DW-2 Dhani Ram deposed that he did not know Kahnu. He knew Ratia, Mushu and Dulu. DW-3 Ram Saran deposed that Kahnu was also known as Sadhu. DW-4 Dila Ram, in his cross-examination, has admitted that the name of Kahnu alias Sadhu was never recorded in any revenue record. He was not aware as to how many families were residing in village Sua. 11. The copy of Shajra Nasab of Mauja Basheel is Ext. PW-1/A and Ext. PW-1/B is the Shajra Nasab of Mauja Sua. In Ext. PW-1/B, Naghia is shown to have one son Angrhu. Anghru had five sons, namely, Ramdia, Gurmukh, Khaman, Pariman and Nathu. Ramdia had three sons, namely, Kahnu, Sanwalia and Surtia. Kahnu had three sons, namely, Ratia, Mushu and Dulu. The plaintiff is the son of Dulu. In Ext. PW-1/A, copy of pedigree table of Mauza Basheel, Ravindu has been shown as first male descendent of the plaintiff. Ravindu had one son, namely, Sadhu. Sadhu had three sons, namely, Budh Ram, Mushu and Ratia. In the pedigree table of Village Sua i.e. Ext. PW-1/B, the ancestor of Ratia, Dulu and Mushu is shown as Kahnu whereas Kahnu’s father is shown as Ramdia. However, in the pedigree table Ext. PW-1/A, the name of the father of Ratia and Mushu has been recorded as Sadhu. Sadhu’s father has been shown as Ravindu. In the pedigree table of Village Sua i.e. Ext. PW-1/B, the ancestor of Ratia, Dulu and Mushu is shown as Kahnu whereas Kahnu’s father is shown as Ramdia. However, in the pedigree table Ext. PW-1/A, the name of the father of Ratia and Mushu has been recorded as Sadhu. Sadhu’s father has been shown as Ravindu. It is not believable that the name of Kahnu was changed to Sadhu. The only explanation put forth by DW-1 Kali Ram is that since Kahnu was of simple habits, he was called Sadhu. 12. DW-4 Dila Ram, in his cross-examination, has admitted that the name of Kahnu alias Sadhu was not shown in any revenue record. He was also not aware as to how many families were residing in village Sua. It is evident from the perusal of mutation attested in favour of the defendants that no enquiry was made at the time of attestation. The detailed enquiry was required to be made on the basis of the pedigree table. In Ext. P-2 the name of Ramdia has been written with blue ink whereas rest of the contents of the jamabandi were written in black ink. In the subsequent jamabandis also, the name of Ramdia does not find mention. The learned trial Court has wrongly relied upon the certificate issued by the Gram Panchayat, without examining the Panchayat Officials. The learned first appellate Court has correctly appreciated the oral as well as documentary evidence available on record. The defendants have failed to prove that Kahnu was also known as Sadhu in village Basheel. The substantial questions of law are answered accordingly. 13. Accordingly, there is no merit in this appeal and the same is dismissed. No costs.