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2015 DIGILAW 376 (HP)

Randev Singh v. Rai Singh

2015-04-20

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. - Challenge herein is to the judgment and decree dated 1.8.2003 passed in Civil Appeal No. 94-N/2000, whereby learned lower appellate Court on reversal of the judgment and decree dated 25.5.2000, passed by Sub Judge 1st Class (II), Nurpur in Civil Suit No. 383 of 1995 has dismissed the suit being time barred. 2. It is the plaintiffs, who are in second appeal before this Court. The complaint is that learned lower appellate Court has reversed a well reasoned judgment passed by learned trial Court while misreading and mis-appreciating the pleadings and also oral as well as documentary evidence, available on record. It is contended that the defendant did not set-up any right title and interest over the suit property nor raised the issue of limitation, however, learned lower appellate Court in utter disregard to the pleadings has dismissed the suit. The entries showing the defendant as `kabiz' appeared for the first time in the jamabandi for the year 1984-85 Ex.P-2. Therefore, the simple case of the plaintiff is that they were dispossessed from the suit land in the year 1985. The suit as such was within the period of limitation; however, this aspect has not been appreciated in its right perspective. 3. The appeal has been admitted on the following substantial question of law:- "1. Whether it was open to the learned first Appellate Court to have gone into the question of limitation without there being any foundation in the pleadings of the defendant." 4. Mr. G.D. Verma, learned Senior Advocate assisted by Mr. B.C. Verma, Advocate, while arguing this matter on behalf of the appellants-plaintiffs has strenuously contended that the present is a suit based upon title and no limitation is prescribed under the Limitation Act for filing a suit of this nature. Also that the plaintiffs claim could have only been defeated, had there been the plea of adverse possession raised by the defendant. 5. On the other hand, Mr. K.D. Sood, learned Senior Advocate assisted by Mr. Rajnish K. Lal, Advocate has strenuously contended that the respondent-defendant remained owner-in-possession of the land measuring 1 kanal 13 marlas throughout. No portion of the suit land is in his possession. Mr. 5. On the other hand, Mr. K.D. Sood, learned Senior Advocate assisted by Mr. Rajnish K. Lal, Advocate has strenuously contended that the respondent-defendant remained owner-in-possession of the land measuring 1 kanal 13 marlas throughout. No portion of the suit land is in his possession. Mr. Sood has very fairly contended that the entries in the Revenue record showing the defendant as `kabiz' of the suit land are wrong and occurred in the revenue record during the consolidation of holdings having taken place in the area. He, however, submits that the plaintiffs are at liberty to get the entries corrected. No arguments, however, has been addressed on the point of limitation. 6. On analyzing the rival submissions viz-a-viz the facts of this case as well as the evidence available on record, irrespective of the plea of limitation was never the defence of the defendant, learned lower appellate Court has dismissed the suit being time barred. The present is a case where the issue of limitation neither involved nor lower appellate Court had any occasion to take up such issue that too sue moto for the reason that it is the plaintiffs, who, as per the entries in the copy of Misal Hakiat Bandobast Jadid for the year 1982-83 Ex.P-3, were owners-in-possession of the suit land measuring 2 kanal 17 marlas, (old khasra No. 37) and during settlement changed into new khasra No. 71. In the copy of Misal Hakiat Bandobast Jadid for the year 1984-85 Ex.P-2, the old khasra Number 71 of the suit land was changed into 83. While it is the plaintiffs, who have been shown to be the owners thereof, the defendant came to be entered as `kabiz' (in possession) thereof. It is only the entries that too for the first time under the column of possession underwent change in Ex.P-2 in the year 1984- 85. In what capacity the defendant came to occupy the suit land does not even explained from such entries also. The present is a suit filed for possession of the suit land on the basis of title. Therefore, Mr. Verma, is absolutely right in claiming that no limitation is prescribed for filing a suit of this nature. 7. Otherwise also, had there been any plea of adverse possession etc. The present is a suit filed for possession of the suit land on the basis of title. Therefore, Mr. Verma, is absolutely right in claiming that no limitation is prescribed for filing a suit of this nature. 7. Otherwise also, had there been any plea of adverse possession etc. raised by the respondent-defendant in that event also the entries `Kabiz' for the first time occurred in the revenue record during the year 1984- 85, whereas the suit filed on 2.5.1995, was well within the period of limitation i.e. 12 years and that too from the date of such entries. The plaintiffs' claim that the defendant except for the entries in the copy of Misal Hakiat Bandobast Jadid 1984-85 Ex.P-2 and in the jambandi for the year 1990- 91 Ex.P-1 is not in possession of the suit land is correct because no cogent and plausible evidence is forth coming to show that it is the defendant, in actual possession of the suit land. 8. If coming to the defendant's case as pleaded in the written statement, it is categorically stated that he is owner of 1 kanal 13 marlas of land and its category is Bagicha Nehari whereas Khasra number was 55/1, which during consolidation has been converted into khasra No. 38. According to him, he is not party to mutation No. 123 qua change of his land measuring 1 kanal 13 marlas, Khasra No. 55/1 to khasra No. 84 measuring 0-04-55 HM as recorded with red ink in the remarks column of Misal Hakiat Bandobast Jadid for the year 1982-83. Therefore, as per his stand in the written statement, the ownership and possession of land measuring 0-04-55 HM bearing Khasra No. 84 has been wrongly changed in his name. 9. It is categorically stated by the defendant that the plaintiffs were owners-in-possession of the land bearing khasra No. 71 measuring 2 Kanal 17 marlas, Bagicha Nehari Abal, however, during consolidation of holdings the mistake occurred and in the settlement record prepared during the year 1984-85 the area measuring 1 kanal 4 marlas out of the same came to be wrongly shown in his possession. Therefore, as per his version, the mistake, if any, occurred is on the part of the settlement or consolidation staff, who have reduced the area of the plaintiffs from 2 kanal 13 Marlas and had shown an area 0-03-94 HM in his possession. Therefore, as per his version, the mistake, if any, occurred is on the part of the settlement or consolidation staff, who have reduced the area of the plaintiffs from 2 kanal 13 Marlas and had shown an area 0-03-94 HM in his possession. Even while in the witness-box as DW-1, the defendant tells us that the land belonging to him is in his ownership and possession right from the very beginning. According to him, the land of the parties was joint and stands separated during the consolidation having taken place in the area, however, the land in their shares remained in their respective possession as it is as was right from the very beginning. He never possessed any other land except for the land about 2 kanals in his possession. 10. Plaintiff Randev Singh, while in the witness box, no doubt tells us that the defendant has taken over the possession of the suit land, however, in his cross-examination; he also admitted that the defendant is owner-in-possession of land measuring 1 kanal 13 marlas over which he raised orchard. The defendant's claim is also that he is owner-in-possession of the land measuring 1 kanal 13 marlas. He has denied any land of the plaintiff having been encroached upon or in his possession. Meaning thereby that he is in possession of 1 kanal 13 marlas of land bearing khasra No. 55/1 whereas the plaintiff that of the suit land measuring 2 kanal 17 marlas bearing old khasra No. 37 and new khasra No. 71 and presently 83. The mistake, if any, is in the revenue entries. 11. The plaintiff is at liberty to approach the competent revenue authority for correction of the entries. When the plaintiff has failed to prove that the suit land in fact is in possession of the defendant, no executable decree could have been passed in the suit. Therefore, while quashing the judgment and decree under challenge in this appeal, the suit is dismissed with the observations that the plaintiffs are owners-in-possession of the suit land measuring 2 kanal 17 marlas, whereas the defendant is also owner-in-possession of the land measuring 1 kanal 13 merlas. The plaintiffs, if so advised, may approach the competent revenue authority for seeking the order qua correction of entries pertaining to the suit land in the revenue record. The appeal stands accordingly disposed of. The plaintiffs, if so advised, may approach the competent revenue authority for seeking the order qua correction of entries pertaining to the suit land in the revenue record. The appeal stands accordingly disposed of. Pending applications, if any, shall also stand disposed of. No order so as to costs.