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2015 DIGILAW 50 (HP)

Gulaba Ram v. Haminder Singh

2015-01-09

RAJIV SHARMA

body2015
Judgment This Regular Second Appeal has been instituted against judgment and decree dated 17.9.2014 rendered by learned District Judge, Kullu, District Kullu, Himachal Pradesh in Civil Appeal No. 29 of 2014(0000042/14) 2. “Key facts" necessary for the adjudication of the present appeal are that appellant-plaintiff (herein after referred to as ‘plaintiff’ for convenience sake), instituted a suit for declaration with consequential relief of injunction against respondents-defendants (hereinafter referred to as 'defendants ' for convenience sake). According to the plaintiff, land comprised in Khasra No. 286 Khata Khatauni No. 62/133 measuring 1-0-0 Bigha situate in Phati Shamsi, Kothi Khokhan Tehsil & District Kullu was previously entered as owner in possession of Dharam Singh and in possession of Dhani Ram, predecessor-in-interest of the plaintiff, as non occupancy tenant on payment of rent to the land owner. Tenancy rights were inherited by plaintiff being his son. Plaintiff became owner of the suit land by operation of HP Tenancy & Land Reforms Act. It is also alleged that Shyam Kala, predecessor-in-interest of defendant No.1 in connivance with the revenue staff got herself recorded in possession of the suit land vide Rapat No. 820 dated 26.7.1979. Defendant No. 1 on the basis of wrong revenue entries sold the suit land to defendants No. 2 and 3 vide sale deeds No. 2292 and 2293 dated 5.12.2007. Mutations No. 7006 and 7007 were sanctioned on 15.2.2008 were wrong. Defendants have threatened to dispossess the plaintiff from the suit land. 3. The suit was contested by the defendants No. 1 to 3 by filing separate written statements. According to defendant No. 1, Dhani Ram was never inducted as tenant by Dharam Singh. Revenue entries showing him as tenant on the basis of Jamabandi for the year 1951-52 were wrong and contrary to the factual position. He never remained in possession of the suit property. It is denied that after the death of Dhani Ram, tenancy rights were succeeded by plaintiff. Plaintiff has never become owner of the suit land by operation of HP Tenancy & Land Reforms Act. It was denied that the predecessor-in-interest of defendant No. 1 has connived with the revenue staff. And Rapat No. 820 dated 26.7.1979 was wrong. Attestation of Mutation No. 2277 dated 7.8.1979 was justified. 4. According to defendant No. 2 and 3, they have purchased the land after due verification of title. It was denied that the predecessor-in-interest of defendant No. 1 has connived with the revenue staff. And Rapat No. 820 dated 26.7.1979 was wrong. Attestation of Mutation No. 2277 dated 7.8.1979 was justified. 4. According to defendant No. 2 and 3, they have purchased the land after due verification of title. They have purchased suit land vide sale deeds No. 2292 and 2293 dated 5.5.2007 and mutation was attested. Plaintiff filed replication. 5. Learned Civil Judge (Senior Division) framed issues on 7.8.2010 and dismissed the suit on 9.7.2013. Plaintiff filed an appeal before the learned District Judge, which was also dismissed on 17.9.2014. Hence, this Regular Second Appeal. 6. Mr. Tara Singh Chauhan has vehemently argued on the basis of substantial question of law framed that the learned Courts below have not correctly appreciated Ext. P-1, P-4/A and P-15. 7. I have heard the learned counsel for the appellant and also gone through the record carefully. 8. Since both the substantial questions of law are interconnected as such are taken up together for discussion. 9. Plaintiff has appeared as PW-1. He has led his evidence by filing affidavit Ext. PA. In his cross-examination he deposed that his father died five years ago. He admitted that his father never objected to Rapat No.820 dated 26.6.1979. 10. Evidence of PW-2 Balmukand is formal in nature. 11. PW-3 Madan Singh has given a general statement that suit land was in possession of plaintiff Gulaba and defendants were not in possession. 12. PW-4 has proved Rapat No. 820 dated 26.7.1979, Ext. PW4/A. 13. DW-2 and DW-3 namely Neel Chand and Duni Chand have led their evidence by filing affidavit by way of Ext. DW1/A and DW2/A. They have denied the suggestion that they were not in possession of suit land and that the plaintiff cultivates the same. They have denied that sale was without consideration. 14. Defendant No.1 has appeared as DW-3. He has led his evidence by tendering affidavit Ext. DW3/A. According to him, no tenant was ever inducted in the suit land. He sold a part of suit land and rest of in his possession. He denied that maternal grand mother Shyam Kala got changed the revenue entries in connivance with the revenue staff. 15. According to the Jamabandi for the year 1951-52, 1959-60 and 1963-64 i.e. Ext. P1, Ext P2 and Ext. He sold a part of suit land and rest of in his possession. He denied that maternal grand mother Shyam Kala got changed the revenue entries in connivance with the revenue staff. 15. According to the Jamabandi for the year 1951-52, 1959-60 and 1963-64 i.e. Ext. P1, Ext P2 and Ext. P3, suit land was owned by Dharam Singh, Durga Singh, Shyam Kala etc. Plaintiff has not at all pleaded that who inducted Dhani Ram, his predecessor-in-interest, as tenant. He has not placed on record any rapat made by the Patwari that Dhani Ram was inducted as tenant over the suit land. There is no contemporaneous record to establish how stray entries in Jamabandi qua tenancy were made in the year 1951-52 in the name of Dhani Ram. Entries in jamabandi can only be changed after specific orders passed by a competent revenue office. Though there presumption of truth attached to Jamabandi but the same is rebuttable. No objection was raised by the father of the plaintiff when mutation No. 2277 Ext. P4 was attested. According to Rapat, Moti was found in possession of Khasra No. 286 measuring 1-0-0 bighas and it was on the basis of this report that mutation No. 2277 (Ext. P15) was attested on 6.8.1979. Ext. PW-4/A is Rapat No. 820. In case, Dhani Ram, predecessor-in-interest of the plaintiff was inducted as tenant in the suit land, his name would have certainly been reflected in the record and subsequent mutation, Ext. P15. Even at the time of Rapat No. 820 dated 26.7.1979 Shyam Kala was coming in possession of suit land as owner since 1969, as per Jamabandi for the year 1969-70 and 1994-95. 16. Learned courts below have correctly appreciated Ext. P1, P4/A and P15. Defendant No. 1 has sold land to defendants No. 2 and 3 on the basis of sale deeds No. 2292 and 2293 dated 5.12.2007. Mutations No. 7006 and 7007 were duly attested on 15.2.2008. The substantial question of law is answered accordingly. 17. In view of the discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stand disposed of. No costs.