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2015 DIGILAW 1870 (HP)

ROOP SINGH v. DILA RAM

2015-12-11

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. 1. This Regular Second Appeal is directed against the judgment and decree dated 13.7.2015 rendered by the District Judge, Mandi in Civil Appeal No. 33/2014. 2. "Key facts" necessary for the adjudication of this appeal are that appellant-plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) filed a suit against the respondents-defendants (hereinafter referred to as the 'defendants' for convenience sake). According to the averments contained in the plaint, land comprised in Khewat No. 456, Khatauni No. 527, Khasra No. 1151 measuring 00-09-07 bighas situated in Muhal Nagchalla Hadbast No. 219, Illaqua Balh, Tehsil Sadar, District Mandi, H.P. was shown in the ownership and possession of late Sh. Durga. Out of the suit land, Khasra No. 1151/1 measuring 00-05-00 bighas was shown to be alienated in favour of defendant No. 7. Previously, Khasra number of suit land was 1270 and was recorded in the joint ownership of Sh. Gurdayal and Smt. Dassi etc. and was in possession of Mithnu, father of the plaintiff. The possession of Mithnu was recorded in the revenue record as "Bila Lagaan Ba Wazah Shinazori". Smt. Dassi, one of the co-owners, out of her th share in the joint land measuring 5-01-19 bighas, sold land measuring 00-09-07 bighas to Durga, predecessor-in-interest of defendants No. 1 to 6, vide registered sale deed dated 20.4.1977. She was not competent to alienate or transfer the suit land in favour of Durga, predecessor-in-interest of defendants No. 1 to 6. The mutation was attested in favour of Durga on 22.4.1993. An appeal was preferred against the mutation before the Sub Divisional Collector, Mandi. He dismissed the same on 8.1.2007. The plaintiff preferred an appeal before the Divisional Commissioner, Mandi. He dismissed the same on 23.8.2010. According to the plaintiff, Mithnu was encroacher of the suit land since 1.1.1950 and has become owner of the suit land by way of adverse possession since his possession was open, continuous, peaceful, uninterrupted and hostile to the knowledge of owners. 3. Suit was contested by defendant Nos. 1 to 6 by filing separate written statement. According to them, the entries in the Jamabandi showing Mithnu as "Bila Lagaan Ba Wazah Shinazori" are wrong, incorrect and illegal. Smt. Dassi sold her th share in favour of Sh. Durga vide registered sale deed. The possession was handed over to Durga. 3. Suit was contested by defendant Nos. 1 to 6 by filing separate written statement. According to them, the entries in the Jamabandi showing Mithnu as "Bila Lagaan Ba Wazah Shinazori" are wrong, incorrect and illegal. Smt. Dassi sold her th share in favour of Sh. Durga vide registered sale deed. The possession was handed over to Durga. It is denied that Mithnu was in possession as encroacher over the suit land since 1.1.1950. 4. Defendant No. 7 has filed separate written statement. According to him, he has purchased land measuring 00-05-00 bighas in Khasra No. 1151/1 vide registered sale deed dated 17.8.2009 after verifying the revenue record. 5. The plaintiff filed two separate replications. Issues were framed by the trial court. The trial court dismissed the suit on 12.8.2014. The plaintiff preferred an appeal before the District Judge, Mandi against the judgment and decree dated 12.8.2014. He dismissed the same on 13.7.2015. Hence, the present appeal. 6. Mr. H.S. Rangra, learned counsel for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below have misread and misconstrued the oral as well as documentary evidence. He has also submitted that defendant No.7 was not the bona fide purchaser of the suit land. 7. Mr. G.R. Palsra has supported the judgments and decrees passed by both the courts below. 8. I have heard the learned counsel for the parties and have gone through the judgments of both the courts below. 9. Since all the substantial questions of law are interconnected and interlinked the same are taken up together for determination to avoid repetition of discussion of evidence. 10. The plaintiff has appeared as PW-1. He has led his evidence by way of affidavit Ex.PW-1/A. He has placed on record copy of Jamabandi Ex.PW-1/B, copy of Missal Haquiat Istemal Ex.PW-1/C, copies of Jamabandi Ex.PW- 1/D, Ex.PW-1/E and Ex.PW-1/F. He has also placed on record copy of mutation Ex.PW-1/G, copy of sale deed Ex.PW-1/H, copy of order of Divisional Commissioner Ex.PW-1/J and copy of order of Sub Divisional Collector Ex.PW-1/K. He has admitted in his cross-examination that Smt. Dassi was his mother. She has sold land in favour of Durga, predecessor-in-interest of defendant Nos. 1 to 6. He has categorically admitted that Mithnu has not filed any suit against Smt. Dassi or Sh. Durga. 11. Defendant No. 1 has appeared as DW-1. She has sold land in favour of Durga, predecessor-in-interest of defendant Nos. 1 to 6. He has categorically admitted that Mithnu has not filed any suit against Smt. Dassi or Sh. Durga. 11. Defendant No. 1 has appeared as DW-1. According to him, land measuring 00-09-07 bighas comprising Khasra No. 1151 was purchased by his father Durga from the mother of plaintiff on 20.4.1977. The land was purchased in the presence of plaintiff's father. Out of this land, land measuring 00-05-00 bighas has been sold to defendant No. 7 by the defendants through registered sale deed. He was also put into possession. Sh. Mithnu and Smt. Dassi have never challenged the sale deed and possession of Durga on the suit land during their life time. 12. Defendant No. 7 has appeared as DW-2. He has led his evidence by filing affidavit Ex.DW-2/A. He has deposed that he has purchased land measuring 00-05-00 bighas from Shanti Devi, who was power of attorney of Durga, vide registered sale deed dated 17.8.2009. He was bona fide purchaser. He came in possession of the suit land. He has raised the boundary wall on the suit land. 13. DW-3 Chamaru Ram has deposed that Sh. Durga, father of defendant Nos. 1 to 6, has purchased the suit land from the mother of plaintiff. After the purchase of the land, Sh. Durga was put in possession. His legal heirs were in possession of the suit land. Out of total land, measuring 00-05-00 bighas was sold by defendants in favour of defendant No. 7. He was put in possession of the same. 14. The plaintiff has also taken the plea of adverse possession, but the ingredients were lacking. In order to prove adverse possession, it was necessary for the plaintiff to prove nature of the possession, whether the form of title was known to other party and whether the possession was continuous. He was also required to prove that his possession was open, peaceful, uninterrupted and hostile to the party against whom he was claiming adverse possession. 15. According to Jamabandi Ex.PW-1/P, predecessor-in-interest of defendant Nos. 1 to 6 Sh. Durga was owner in possession of the suit land. In the remarks column, there is a specific entry of sale deed in favour of Avinash. The same position was reiterated in the Jamabandi for the year 1997-98 Ex.PW-1/C. Presumption of truth is attached to the Jamabandi. 15. According to Jamabandi Ex.PW-1/P, predecessor-in-interest of defendant Nos. 1 to 6 Sh. Durga was owner in possession of the suit land. In the remarks column, there is a specific entry of sale deed in favour of Avinash. The same position was reiterated in the Jamabandi for the year 1997-98 Ex.PW-1/C. Presumption of truth is attached to the Jamabandi. The plaintiff has not placed on record any material to rebut the entry of Jamabandi whereby the predecessor-in-interest of defendant Nos. 1 to 6 has been shown as owner in possession of the suit land on the basis of sale deed. The sale deed was valid and so was the mutation. The plaintiff was heard by the revenue authorities. According to Jamabandi Ex.PW-1/B, the sale deed was executed by Sh. Durga in favour of defendant No. 7 on the basis of registered sale deed. Sale deeds dated 20.4.1977 and 17.8.2009 are genuine. The court has already taken notice of the latest Jamabandi, i.e. Ex.PW-1/B and Ex.PW-1/C whereby the predecessor-in-interest of defendant Nos. 1 to 6 has been shown as owner in possession and the land was sold to defendant No. 7 by Sh. Durga. Moreover, the plaintiff has not produced any witness to prove his possession over the suit land. 16. Their Lordships of the Hon'ble Supreme Court in Gurdwara Sahib v. Gram Panchayat Village Sirthala and another, (2014) 1 SCC 669 have held as under: "8. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence." 17. The courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments and decrees passed by both the courts below. 18. The substantial questions of law are answered accordingly. 19. In view of the analysis and discussion made herein above, there is no merit in the present appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.