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2015 DIGILAW 412 (HP)

Govind v. Jiwan Singh

2015-04-28

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge Mandi, H.P. dated 12.1.2005, passed in Civil Appeal No.48 of 2003. 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 against the appellant defendants (hereinafter referred to as the defendants). According to the plaintiff, the land comprised in Khewat Khatauni No. 201 min/187 min, 239 min comprising Kh. No. 148 measuring 0-5-7 bighas situated in Mohal Daundhi/217, as shown in the land recorded in the ownership and possession of the defendants (referred to as the suit land). The entries of the suit land in the revenue record were incorrect because this land is owned and possessed by the plaintiff after its purchase on 2.3.1964 from grand father of the defendant, namely Himmat Ram on payment of Rs. 800/- towards the sale consideration. The revenue entries were made and plaintiff was shown as owner-in-possession over the land comprised in Kh. No. 147 min whereas he has purchased the suit land and is in possession of the same. Previously, the plaintiff had filed a suit for the land comprised in Kh. No. 147 min but during the pendency of the suit, it transpired that the land in possession of the plaintiff is the suit land and the entries showing the defendants in possession of this land are wrong and illegal. The plaintiff has constructed a commercial complex on this land. He was in possession of this land peacefully, continuously, uninterruptedly and in a manner hostile to the title of the true owner since 2.3.1964. The possession was to the knowledge of the defendants including their predecessor-in-interest. 3. The suit was contested by the defendants. According to the defendants, the entries were correct and their predecessor-in-interest had constructed a house over the suit land and the plaintiff was employed as an employee for running the machines installed in the suit land. The plaintiff started paying the electricity bills qua this building on behalf of the predecessor-in-interest of the defendants. 4. The replication was filed by the plaintiff to the written statement filed by the defendants. The learned Sub Judge Ist Class (III), Mandi, Distt. Mandi, H.P., framed the issues and dismissed the suit on 31.3.2003. The plaintiff started paying the electricity bills qua this building on behalf of the predecessor-in-interest of the defendants. 4. The replication was filed by the plaintiff to the written statement filed by the defendants. The learned Sub Judge Ist Class (III), Mandi, Distt. Mandi, H.P., framed the issues and dismissed the suit on 31.3.2003. The plaintiff filed an appeal against the judgment and decree dated 31.3.2003. The learned District Judge, Mandi, allowed the appeal on 12.1.2005. Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial question of law on 23.4.2007: ?1. Whether the learned first appellate Court was right in giving its findings that the sale of immovable property worth Rs. 100 or more can be effected without cause of registered sale deed in the absence of any issue in this regard? 2. Whether the learned first appellate Court has given its findings in regard to Issue No. 2 in regard to adverse possession rightly or no?? 6. Mr. R.L.Chaudhary, Advocate, for the appellant has supported the judgment and decree passed by the learned trial Court. He then contended that the plaintiff has failed to prove the adverse possession. He further contended that the sale of immovable property worth Rs. 100/- or more was required to be registered. On the other hand, Mr. Sanjeev Kuthiala, Advocate, has supported the judgment and decree passed by the learned first appellate Court. 7. I have heard the learned Advocates for the parties and gone through the records of the case carefully. 8. The case of the plaintiff, precisely, is that he has purchased the land on 2.3.1964 from the grandfather of the defendants, namely, Sh. Himmat Ram for a consideration of Rs. 800/-. 9. Sh. Mast Ram, PW-1 testified that the plaintiff has moved an application for electricity connection for his industry and his house and connection was sanctioned on 18.11.1965 in his favour. The separate connection for the house of the plaintiff was sanctioned on 25.4.1966. He had seen the industry and house of the plaintiff. The house of defendant Govind Ram was separate and separate meter was sanctioned for the house of Govind Ram. 10. PW-2 Satish Kumar deposed that as per the record, licence was issued to thewan Singh on 7.11.1976 for running the industry. According to the record Jeewan Singh was owner of the industry. 11. The house of defendant Govind Ram was separate and separate meter was sanctioned for the house of Govind Ram. 10. PW-2 Satish Kumar deposed that as per the record, licence was issued to thewan Singh on 7.11.1976 for running the industry. According to the record Jeewan Singh was owner of the industry. 11. PW-3 Mann Singh deposed that he was Kanungo of Circle Pedi and Daundhi Muhal. He had seen Kh. No. 147 and 148. According to him, on some portion of the suit land comprised in Kh. No. 148, machines of Jeewan Singh have been installed and house of the plaintiff is also situated over the suit land. However, the revenue entries in this regard have not been effected qua the suit land. He has visited the spot on 30.10.1998 and on inquiry, he came to know that plaintiff is in possession of the suit land comprised in Kh. No. 148. He prepared the report to this effect and sent the same to the Tehsildar. 12. PW-4 Dagu Ram and PW-5 Shobha Ram, deposed that the plaintiff has constructed house and has also installed thrashing machine over the suit land. He purchased the same for a consideration of Rs. 800/- from the predecessor-in-interest of the defendants. 13. The plaintiff has appeared as PW-6. According to him, he has purchased the land from Himmat for a consideration of Rs. 800/- on 2.3.1964. He has constructed the house over the suit land. He was put in possession in the year 1964. The electricity connection as well as licence of the industry was obtained by him in his name. 14. PW-7 Shamsher Singh deposed that in the year 1966-67, he was posted as Patwari in patwar circle Dhaundhi. He had seen the house of the plaintiff. The plaintiff has installed machines over the suit land. 15. PW-8 Biri Singh, deposed that the house of the plaintiff is situated over the suit land and he has also set up industry over the suit land. 16. PW-9 Jagdish deposed that the house number of plaintiff is 264. The house number of the defendants is not entered in the register. 17. The defendant No. 1 Govind has appeared as DW-1. According to him, the suit land was never sold by the predecessor-in-interest to the plaintiff. His father Nanku has kept plaintiff as servant for running the industry. His father was illiterate. The house number of the defendants is not entered in the register. 17. The defendant No. 1 Govind has appeared as DW-1. According to him, the suit land was never sold by the predecessor-in-interest to the plaintiff. His father Nanku has kept plaintiff as servant for running the industry. His father was illiterate. The plaintiff has taken advantage of his illiteracy. The plaintiff has no right over the suit land. 18. Smt. Jeewani, has appeared as DW-2. According to her, the plaintiff was running machine and he was kept for running the machine by Nanku. 19. What emerges from the statements of the witnesses is that the land has been purchased by the plaintiff on 2.3.1964. He has constructed the house over the suit land. The house was allotted the house number. He has also set up the industry on the suit land. He has obtained the licence from the concerned department. The electricity connections were sanctioned separately for the house as well as for running the industry on 18.11.1965 and 25.4.1966, respectively. This fact has been proved by PW-1 Mast Ram. PW-2 Satish Kumar, has proved the issuance of licence. 20. The plaintiff is coming in possession of the suit land since 2.3.1964. PW-3 Mann Singh, has also visited the spot. He has noticed the possession of the plaintiff over the suit land on 30.10.1968. He has sent the report to the Tehsildar. PW-7 Shamsher Singh, Patwari in Patwar Circle Dhaundhi has deposed that the plaintiff has installed the machinery over the suit land. The learned first appellate Court has rightly come to the conclusion that since the Transfer of Property Act was not applicable in the year 1964, the sale was not required to be registered. 21. Sub-para (2) of para-8.1 of HP Land Records Manual, Revised Edition 1992, reads as under: “ (2) The provisions of sections 54, 107 and 123 of the Transfer of Property Act were made applicable in H.P. vide Deputy Secretary (Rev.) to the Govt. of H.P. letter No. 17-13/66 Rev. I, dated 6.1.1971 whereby registration of sale (S.54) lease (S.107) and gift (S. 123) have been made compulsory. In the case of acquisition of rights of such nature, the Patwari will enter mutation on the basis of registration memorandum or registered deed.” 22. The Division Bench of this Court in the case of Dasaundhi Ram and another vrs. I, dated 6.1.1971 whereby registration of sale (S.54) lease (S.107) and gift (S. 123) have been made compulsory. In the case of acquisition of rights of such nature, the Patwari will enter mutation on the basis of registration memorandum or registered deed.” 22. The Division Bench of this Court in the case of Dasaundhi Ram and another vrs. Hans Raj, reported in 1985, S.L.J. 293, has held that the provisions of Transfer of Property Act, were not applicable at the time when oral sale was made. It has been held as follows: ?7. Adverting to the second contention that the plaintiffs were bonafide purchasers of the land in dispute, it may be pointed out that at the relevant time the Transfer of Property Act was not applicable and an oral sale by mutation was permissible. An entry in the =Roznamcha-vakiaty' regarding the oral sale was reflected at the instance of the land owners on June 18, 1967. A mutation of sale was also attested in favour of the defendant in a general meeting. Simply because the subsequent sale in favour of the plaintiffs was made by a registered deed does not give a preferential right to the plaintiffs. 8. Under the circumstances, while agreeing with the view taken by the first appellate court as also by the learned Single Judge, there is no reason to doubt that the possession of the land in dispute had already been delivered to the defendant before the report =Roznamcha-vakiaty' was made on June 18, 1967 pursuant to the oral sale. It was in the month o February, 1968, that the sale deed was executed in favour of the plaintiffs after the possession had been already delivered to the defendant pursuant to the oral sale. As such the plaintiffs are supposed to have the knowledge of the oral sale. As pointed out earlier above, at the relevant time, it was not necessary to get a deed of sale executed and registered but an oral sale was also permissible. As such, the subsequent sale deed executed and registered in favour of the plaintiffs does not confer better rights on the plaintiffs. A sequence of events reveals that the plaintiffs were aware about the oral sale already made in favour of the defendant. The plaintiffs are also presumed to have the knowledge that the previous owners were not in possession of the land in dispute. A sequence of events reveals that the plaintiffs were aware about the oral sale already made in favour of the defendant. The plaintiffs are also presumed to have the knowledge that the previous owners were not in possession of the land in dispute. At any rate, it was required for the plaintiffs to find out the factual position. Any deliberate omission on their part does not entitle them to any benefit.? 23. The plaintiff has proved the ingredients of adverse possession by leading cogent and reliable evidence which has not been rebutted by the defendants. Rather, the defendant No. 1 Govind has stated that the plaintiff was engaged as servant to run the machinery. This cannot be believed in view of the overwhelming evidence led by the plaintiff that he has set up his house and running the industry on the suit land. The cause of action has arisen to the plaintiff when the defendants have tried to oust him from his possession. The substantial questions of law are answered accordingly. 24. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application (s), if any. The judgment and decree passed by the learned first appellate Court is affirmed.