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2015 DIGILAW 509 (HP)

Jagdish Chand v. Mehar Chand

2015-05-11

DHARAM CHAND CHAUDHARY

body2015
JUDGMENT : Dharam Chand Chaudhary, J. - Defendant Jagdish Chand is in second appeal before this Court. He is aggrieved by the judgment and decree dated 26.04.2003 passed by learned Additional District Judge, Una in Civil Appeal No. 46/2000/99 dismissing thereby the appeal and affirming the judgment and decree passed by learned Sub Judge, (II), Una in Civil Suit No. 68 of 1994. 2. The subject matter of dispute in the present lis is the land entered in Khatoni No. 109 min, Khewat No. 86 min, Khasra No. 122 measuring 0-9-89 hectares as per entries in the Misal Hakiyat Bandobast for the year 1992-93 of village Doh Tappa Teerah, Tehsil Bangana, District Una. The plaintiff claims himself to be in possession of the suit land. The defendant without any right, title or interest therein started causing interference in his possession. He is threatening to dig the suit land for raising construction thereon. Therefore, the suit for the decree of permanent prohibitory injunction and in the alternative for possession by way of demolition of the construction, if any, raised during the pendency of the suit. 3. The defendant when entered appearance has contested the suit. In preliminary objections qua maintainability of the suit, there exist no cause of action nor any locus-standi in favour of the plaintiff to file the suit have been raised. On merits, it is denied that the plaintiff is in possession of the suit land. The suit land rather is claimed to be 'Shamlat' and carved out from Khasra No. 77. It is the defendants who right from the inception of the village are in possession thereof. The entries showing the plaintiff in possession of the suit land are stated to be wrong and without any basis it is for this reason defendant Shankar Dass moved an application before the Assistant Collector, 1st Grade for correction of revenue entries. The application was allowed and the correction in revenue record ordered. 4. The plaintiff also filed replication. On the pleadings of the parties following issues were framed: 1. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP. 2. Whether plaintiff has no cause of action to file the present suit, if so, its effect? OPD. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether plaintiff has no locus-standi to file the present suit? OPD. 5. Relief. 5. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP. 2. Whether plaintiff has no cause of action to file the present suit, if so, its effect? OPD. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether plaintiff has no locus-standi to file the present suit? OPD. 5. Relief. 5. After holding full trial, issue No. 1 has been answered in favour of the plaintiff, whereas, the remaining issues No. 2 to 4 against the defendants. The suit, therefore, has been decreed. Learned lower appellate Court has dismissed the appeal and affirmed the judgment and decree passed by learned trial Court. 6. Complaint is that both Courts below have not appreciated the evidence available on record in its right perspective and recorded the findings on the basis of conjecture and surmises. In order to obtain a decree for injunction, the plaintiff was required to prove the title. He, however, failed to do so, as such, decree for injunction could have not been passed. It has been claimed that the appellant-defendant along with others has been recorded in possession over the suit land as per entries in the Jamabandi Ext. P-2, which is prior in time as compared to Jamabandi Ext. P-1 for the year 1993-94. Nothing has come on record to show as to why the name of the appellant was deleted from the revenue record. It is further contended that the change in the revenue record, without any order is unauthorized, hence should have not been acted upon. The order Ext. D-1 passed by the competent Revenue Officer in a correction application is stated to be erroneously ignored. 7. The appeal has been admitted on the following substantial questions of law: 1. Whether the learned Courts below have committed an error of law in relying upon the later revenue record in which the entry in the name of the plaintiff has been incorporated without there being any valid order of deletion of the name of the appellant in the earlier record? 2. Whether Ext. D-1, correction order passed by the competent revenue officer in correction proceedings under the HP Land Revenue Act has been mis-construed and mis-interpreted and has thus vitiated the impugned judgments? 8. Shri Naresh Thakur, learned Senior Advocate representing the appellant-defendant has canvassed that Ext. 2. Whether Ext. D-1, correction order passed by the competent revenue officer in correction proceedings under the HP Land Revenue Act has been mis-construed and mis-interpreted and has thus vitiated the impugned judgments? 8. Shri Naresh Thakur, learned Senior Advocate representing the appellant-defendant has canvassed that Ext. D-1 makes it crystal clear that out of the suit land, land measuring 0-01-00 hectares is in possession of the appellant-defendant. This order, according to Mr. Thakur, should have been given weightage. The same, to the contrary, is stated to be erroneously ignored. The change in the record regarding possession of the suit land allegedly without any order of competent authority has also been vigorously pressed into service. 9. On the other hand, Mr. Ramakant Sharma, learned counsel representing the respondent-plaintiff has forcefully contended that the other contemporaneous evidence on the basis whereof, order Ext. D-1 has been passed is not produced in evidence. It is the respondent-plaintiff who along-with others is stated to be in possession of the suit land. The defendant allegedly has nothing to do therewith. Both the Courts below have rightly decreed the suit. The concurrent findings of fact recorded by both Courts below call for no interference by this Court in the present appeal. 10. Now coming to the substantial questions of law formulated in this appeal for adjudication, question No. 1 supra hardly carries any substance for the reason that it is no-body's case that previously someone else and for that matter defendant was in possession of the suit land as per revenue record and that the entries thereof have been changed abruptly in favour of the plaintiff and others. As a matter of fact, the suit land is comprised under Khatoni No. 109 min, Khewat No. 86 min, Khasra No. 122. The same as per constant revenue entries in the Jamabandis for the year 1982-83, Ext. P-1, for the year 1988-89 Ext. P-3 and for the year 1993-94, Ext. P-4 and misal hakiyat Istemal for the year 1992-93 Ext. P-1, the same has been recorded in possession of the respondent-plaintiff Mehar Chand and others. Name of appellant-defendant Jagdish Chand is no-where reflected in these documents. He has also not produced any evidence to show that he was ever recorded in possession of the suit land or over a portion thereof. P-1, the same has been recorded in possession of the respondent-plaintiff Mehar Chand and others. Name of appellant-defendant Jagdish Chand is no-where reflected in these documents. He has also not produced any evidence to show that he was ever recorded in possession of the suit land or over a portion thereof. It is also not his case that suit land was recorded in his possession or someone else and as such entries were later on changed in favour of the plaintiff and other co-sharers. The suit land, on the other hand, has been entered in the name of the plaintiff and other co-sharers as per entries in the revenue record discussed supra. Ext. D-1 relied upon by the defendant is hardly of any help to his case, because suit land is comprised under Khatoni No. 109 min, Khewat No. 86 min, Khasra No. 122, whereas, the order Ext. D-1 pertains to land comprised in Khata No. 59 min, Khatoni No. 83 min, old Khasra No. 77 min and new Khasra No. 126 measuring 0-01-00 hectares. Otherwise also, the order Ext. D-1 is based upon the report of Naib-Tehsildar and the evidence as has come on record by way of statements of persons named therein. The report of the Naib-Tehsildar and the statements recorded by learned Assistant Collector 1st Grade has also not at all been discussed. The order, therefore, is non-speaking. Otherwise also, the same as per own admission of the defendant is under challenge before the appellate authority. The order Ext. D-1 has thus not attained finality. 11. The judgment of a Co-ordinate Bench of this Court in Shri Dev Raj versus Shri Mansha Ram, Latest HLJ 2002 (HP) 1222 is not applicable in the given facts and circumstances of this case. The defendant, therefore, has miserably failed to make out a case, warranting interference with the well reasoned judgment and decree passed by both Courts below on appreciation of the evidence available on record in its right perspective. The concurrent findings recorded by both Courts below otherwise also cannot be interfered with in the second appeal. Support in this regard can be drawn from the ratio of the judgment of this Court in Sher Mangat Ram Vs. Krishna Devi and Others, (2013) 3 ShimLC 1507 , relevant portion of this judgment reads as follow: "13. The concurrent findings recorded by both Courts below otherwise also cannot be interfered with in the second appeal. Support in this regard can be drawn from the ratio of the judgment of this Court in Sher Mangat Ram Vs. Krishna Devi and Others, (2013) 3 ShimLC 1507 , relevant portion of this judgment reads as follow: "13. As per the settled legal principle, in a second appeal, findings of fact, even may be erroneous, should not normally be interfered with unless and until found to be recorded on the basis of assumptions, conjectures and are perverse. The scope for interference with concurrent findings of fact in a second appeal is limited one and such interference is legally permissible only in a situation where it appears to the High Court that both the Courts below have misdirected themselves in appreciating the question of law. The settled legal proposition therefore, is that High Court should not interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower Courts. The fate of this appeal has to be decided in the light of the given facts and circumstances and also the legal position, discussed hereinabove. 12. In view of what has been said herein above, no legal question much less to speak of substantial questions of law arise for determination in the present appeal nor the judgment and decree under challenge is perverse. The same rather being legally and factually sustainable deserves to be affirmed. 13. This appeal, therefore, fails and the same is accordingly dismissed. No orders so as to costs.