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Himachal Pradesh High Court · body

2015 DIGILAW 784 (HP)

Hoshiar Singh v. Rakesh Singh Sandhu

2015-06-29

RAJIV SHARMA

body2015
JUDGMENT : RAJIV SHARMA, J. 1. This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge (II), Una, H.P., dated 1.3.2014, passed in Civil Appeal No.09 of 2012. 2. Key facts, necessary for the adjudication of this regular second appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs) instituted a suit for possession of land measuring 0-12-17 hectares bearing Khewat No. 722 min, Khatauni No. 960, Kh. No. 5925, as per Missal Hakiat Bandobast Jadid Sani for the year 1997-98, situated in Mahal Panjawar, Tehsil and Distt. Una (hereinafter referred to as the suit land). According to the plaintiffs, the suit land was formerly in possession of Kartara, predecessor-in-interest of the plaintiffs and defendant No. 4, namely Achhar Singh, as tenant under the previous owners. He was tenant at will under the landlords Mansha Ram etc. for the last more than 50 years. Kartara continued in possession of the suit land as tenant at will, without any interruption and became absolute owner by way of enforcement of H.P. Tenancy and Land Reforms Act, 1972, w.e.f. 3.10.1975. The title of erstwhile landlords was extinguished. The appellants-defendants (hereinafter referred to as the defendants) alleged themselves to be purchaser of share of land from some of the landlords. They interfered and threatened to disturb the peaceful possession of Kartara in the year 1966. Kartara instituted suit against the defendants for injunction, however, later on the defendants did not interfere further in the possession of Kartara. The suit was dismissed as Kartara admitted that there was no interference on the part of the defendants. Kartara died during the pendency of the suit filed by him. 3. The suit was contested by the defendants. According to them, they were coming in possession of the suit land since the date of purchase i.e. 16.5.1967. The plaintiff has no locus standi to file the civil suit. The name of Kartara entered in the Jamabandi as tenant was against the spot position. The defendants have also moved an application for removing Kartara's name from the revenue record but the same was dismissed. 4. The replication was filed by the plaintiffs. The learned Civil Judge (Jr. Divn.), Court No. II, Una, Distt. Una, H.P., framed the issues on 13.10.2006. The learned Civil Judge (Jr. Divn.), Court No. II, Una, decreed the suit on 16.12.2011. 4. The replication was filed by the plaintiffs. The learned Civil Judge (Jr. Divn.), Court No. II, Una, Distt. Una, H.P., framed the issues on 13.10.2006. The learned Civil Judge (Jr. Divn.), Court No. II, Una, decreed the suit on 16.12.2011. The defendants, feeling aggrieved, preferred an appeal before the learned Addl. District Judge, Una, H.P. The learned Addl. District Judge, Una, dismissed the same on 1.3.2014. Hence, this regular second appeal. 5. Mr. Ashwani Kaundal, Advocate, for the appellants, on the basis of the substantial question of law framed, has vehemently argued that the findings returned by both the Courts below to the effect that Kartara was owner of the suit land was contrary to the provisions of H.P. Tenancy and Land Reforms Act, 1972. He then contended that both the Courts below have misread and misconstrued the oral as well as documentary evidence on record. On the other hand, Mr. N.K. Thakur, Sr. Advocate, for the respondents has supported the judgments and decrees passed by both the Courts below. 6. Since the substantial questions of law are interconnected, they are being discussed together to avoid repetition of discussion of evidence. 7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 8. PW-1 Karnail Singh has proved Ext. P-1, copy of Misal Hakiat Bandobast for the year 1997-98. He has also proved Ext. P-2, judgment and decree dated 29.4.2005, Ext. P-5 copy of Jamabandi for the year 2001-02, Ext. P-6 Aks Shajra Kishtwar and Ext. P-7 copy of order dated 23.11.2006. 9. DW-1 Hoshiar Singh, has led his evidence by filing affidavit Ext. DW-1/A. According to him, his father had purchased 6-9 marlas of land from Kh. No. 3362 and 3363 vide registered sale deed dated 16.5.1967 from Mansha Ram, Gurdass Ram etc. He also stated that Kartara had sworn in an affidavit before the Tehsildar on 25.3.1981 to the effect that he was not in physical possession of the land. He further stated that they have become owners of the suit land by way of adverse possession. 10. DW-2 Jagjit Singh, has led his evidence by filing affidavit. According to him, Kartara was never in possession of the suit land and the entries of Kartara as non-occupancy tenant were wrong. He also admitted that no registered sale deed was executed in his presence. 10. DW-2 Jagjit Singh, has led his evidence by filing affidavit. According to him, Kartara was never in possession of the suit land and the entries of Kartara as non-occupancy tenant were wrong. He also admitted that no registered sale deed was executed in his presence. He also showed his ignorance that since 1962-63, Kartara was recorded in possession as non-occupancy tenant. 11. DW-3 Satish Kumar, has also led his evidence by way of affidavit. According to him also, the defendants have purchased the suit land from Mansha Ram etc. in the year 1967. He could not narrate the Khasra numbers of the suit land. He came to know about the sale of the year 1967 from the defendants. 12. The precise case of the plaintiffs” before the Courts below was that Kartara has remained tenant at will for 50 years and has become absolute owner after coming into force of H.P. Tenancy and Land Reforms Act, 1972. The suit land, as per copy of Missal Hakiat for the year 1997-98 Ext. P-1, is recorded in the ownership of defendants No. 1 to 3 but in possession column Kartara son of Faquiria has been entered, being non-occupancy tenant, under the tenancy of Kaushalya Devi, Hoshiar Singh etc. In Ext. P-2 copy of Misal Hakiat Istemal for the year 1997-98, Kartara son of Faquiria has been recorded as owner-in-possession of the land. Ext. P-5 is the copy of jamabandi for the year 2001-02, wherein again Kartara has been recorded as tenant over the suit land under the tenancy of Kaushalya etc. 13. According to the judgment Ext. P-3 rendered in Civil Suit No. 199/66, Kartara had filed suit for permanent injunction against the defendants. The Court after framing specific issue No. 5 returned findings that Kartara had become owner of the land in Kh. No. 3448, Khewat No. 1224, Khatauni No. 1803 under the H.P. Tenancy and Land Reforms Act, 1972, automatically. It is apparent that the judgment rendered in Civil Suit No. 199/96 dated 29.4.2005 had attained finality. 14. The case of the defendants was that they have purchased 2/3rd share in the suit land. However, sale deed has not been produced. According to the defendants, mutation Nos.2986 and 3066 were sanctioned in their favour. There is no documentary evidence to prove the same. 15. Mr. 14. The case of the defendants was that they have purchased 2/3rd share in the suit land. However, sale deed has not been produced. According to the defendants, mutation Nos.2986 and 3066 were sanctioned in their favour. There is no documentary evidence to prove the same. 15. Mr. Ashwani Kaundal, Advocate, has vehemently argued that the defendants have challenged the wrong entries whereby Kartara was shown as tenant in the revenue record by moving an application for correction. However, application was dismissed. The defendants have not placed any tangible evidence on record to prove that such application was moved by them before the Revenue Agency. 16. Now, as far as the execution of the alleged affidavit dated 25.3.1981 filed before the Tehsildar by Kartara is concerned, the same has not seen the light of the day. Moreover, the affidavit does not constitute evidence as per the Indian Evidence Act, 1872. DW-2 Jagjit Singh has admitted that no sale deed was executed in his presence. The plaintiffs have conclusively proved that Kartara had become absolute owner after coming into force of the H.P. Tenancy and Land Reforms Act, 1972 and the same was reflected in the revenue record prepared thereafter including Jamabandi and Missal Hakiyat Bandobast/Istemal. The learned Civil Judge (Sr. Divn.), Una, in Civil Suit No. 199/96, while recording findings on issue No. 5, has declared that the predecessor-in-interest of the plaintiffs” had become owner of the land vide judgment dated 29.4.2005 and the judgment dated 29.4.2005 has attained finality. 17. Accordingly, the Courts below have correctly appreciated the oral as well as documentary evidence available on record and the provisions of the H.P. Tenancy and Land Reforms Act, 1972. The defendants have failed to prove the copy of the registered sale deed dated 16.5.1967 and have also not brought on record the affidavit of Kartara dated 25.3.1981, tendered before the Tehsildar. The substantial questions of law are answered accordingly. 18. Consequently, there is no merit in this appeal and the same is dismissed.