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Himachal Pradesh High Court · body

2016 DIGILAW 1028 (HP)

Jania Son of Shri Thebu v. Dharmi Son of Budhu

2016-06-03

P.S.RANA

body2016
JUDGMENT : P.S. Rana, J. 1. Present regular second appeal is filed under Section 100 of Code of Civil Procedure 1908 against judgment and decree passed by learned District Judge Shimla (H.P.) in Civil Appeal No. 29-S/13 of 2000 title Dharmi and others vs. Jania. Brief facts of the case 2. Plaintiff filed suit for permanent prohibitory injunction restraining defendants from interfering in suit land comprised in Khata No. 173 min, Khatauni No. 431 Khasra No. 325 min old new Khasra No. 1467 situated in mauja Karalash Tehsil Rohru District Shimla H.P. It is pleaded that suit land was previously owned and possessed by Shanti Kumar and Mohan Dutt sons of Bihari Lal. It is pleaded that vide mutation No. 6403 suit land was purchased by Gita Ram. It is pleaded that suit land was exchanged with plaintiff by Gita Ram vide mutation No. 113 dated 15.10.1994 and plaintiff became exclusive owner in possession of suit land. It is pleaded that Shyam Piari filed civil suit No. 34-1 of 1990/59-1 of 1992 title Shyam Piari vs. Gita Ram in the Court of learned Civil Judge Rohru and same was decided on 28.4.1994. It is pleaded that right of plaintiff is not effected by former civil suit. It is pleaded that defendants Nos. 1 to 7 interfered in possession of plaintiff and threatened the plaintiff to dispossess from suit land. It is pleaded that defendants Nos. 1 to 7 have no right title or interest in suit land and prayer for decree the suit as mentioned in relief clause sought. 3. Per contra written statement filed on behalf of defendants pleaded therein that plaintiff is estopped from filing the present suit by his act conduct and acquiesance. It is pleaded that former suit was filed by wife of plaintiff Shyam Piari on the basis of exchange and in alternative on the basis of right of adverse possession and same was dismissed by learned Civil Judge Rohru on 28.4.1994 in which plaintiff was one of co-defendants. It is pleaded that present suit is hit by principles of resjudicata. It is pleaded that plaintiff has no locus standi to file the present suit and plaintiff is not in possession of suit land. It is pleaded that defendants have raised the apple orchard over suit land. It is pleaded that present suit is hit by principles of resjudicata. It is pleaded that plaintiff has no locus standi to file the present suit and plaintiff is not in possession of suit land. It is pleaded that defendants have raised the apple orchard over suit land. It is pleaded that suit land is in settled possession of defendants for the last more than 40 years. It is pleaded that Gita Ram did not become exclusive owner of suit land at any point of time. It is pleaded that suit land was not exchanged at any point of time as pleaded in plaint. It is pleaded that mutation No. 113 dated 15.10.1994 of exchange is illegal. It is pleaded that plaintiff has no cause of action to file the present suit and prayer for dismissal of suit sought. 4. Plaintiff also filed replication and re-asserted allegations mentioned in plaint. As per the pleadings of parties learned Trial Court framed following issues on 22.6.1996:- 1. Whether plaintiff is owner in possession over the suit land as alleged? OPP 2. Whether defendants interfere with possession of the plaintiff as alleged? OPP 3. Whether plaintiff is estoped to file the present suit as alleged? OPD 4. Whether suit is hit by principle of resjudicata as alleged? OPD 5. Whether suit is hit under Section 10 CPC as alleged? OPD 6. Relief. 5. Learned Trial Court decided issues Nos. 1 and 2 in affirmative and decided issues Nos. 3 to 6 in negative. Learned Trial Court decreed the suit filed by plaintiff and restrained the defendants permanently by way of prohibitory injunction from interfering in suit land. 6. Feeling aggrieved against judgment and decree passed by learned Trial Court Shri Dharmi and other defendants filed Civil Appeal No. 29-S/13 of 2000 title Dharmi and others vs. Jania before learned District Judge Shimla and learned District Judge Shimla on 11.11.2002 accepted the appeal and set aside the impugned judgment and decree passed by learned Trial Court. Learned first Appellate Court dismissed the suit of plaintiff with costs throughout. 7. Feeling aggrieved against the judgment and decree passed by learned first Appellate Court Shri Jania appellant filed present RSA which was admitted on following substantial questions of law on 2.5.2005:- 1. Learned first Appellate Court dismissed the suit of plaintiff with costs throughout. 7. Feeling aggrieved against the judgment and decree passed by learned first Appellate Court Shri Jania appellant filed present RSA which was admitted on following substantial questions of law on 2.5.2005:- 1. Whether learned first Appellate Court erred in relying upon the entry during the settlement without specifying the status of the possession of the respondents in view of the settled position of law? 2. Whether findings of the learned first Appellate Court are vitiated by non-consideration of the evidence on record which if considered would have led to opposite result? 3. Whether learned first Appellate Court erred in holding that the suit of the plaintiff was barred by principle of resjudicata? 8. Court heard learned Advocate appearing on behalf of parties and also perused the entire record carefully. 9. Findings upon point No.1 of substantial question of law with reasons:- 9.1 PW1 Jania has stated that area of suit land is 12 bighas 4 biswas. He has stated that old Khasra number of suit land was 325. He has stated that he is in possession of suit land and he has planted orchard of apples since 26-27 years. He has stated that copy of Khasra Girdawari w.e.f. 5.8.1989 to 29.4.1993 is Ext.PW1/A, copy of jamabandi is Ext.PW1/B and copies of mutation No. 113 is Ext.PW1/C. He has denied suggestion that defendants have planted orchard in suit land. He has admitted that former civil suit filed by Shyam Piari was dismissed. He has admitted that Shyam Piari is his wife. He has denied suggestion that he is illegally interfering in land owned by defendants. 9.2 PW2 Keshru has stated that parties are known to him. He has stated that land was given in exchange to plaintiff by Gita Ram. He has stated that area was 12 bighas some biswas. He has stated that possession of suit land was given in exchange to plaintiff in his presence about 29-30 years ago. He has stated that plaintiff is in continuous possession of exchanged land. He has stated that no one has right to interfere in land of plaintiff given to plaintiff in exchange by Gita Ram. He has admitted that Jania is his relative. He has stated that defendants are also his relatives. He has stated that plaintiff is in continuous possession of exchanged land. He has stated that no one has right to interfere in land of plaintiff given to plaintiff in exchange by Gita Ram. He has admitted that Jania is his relative. He has stated that defendants are also his relatives. 9.3 DW1 Dharmi has stated that plaintiff is known to him and he has also seen the suit land. He has stated that suit land is in his settled possession for the last 45 years and he has planted apple trees. He has stated that former civil suit was also filed by Shyam Piari wife of appellant and same was dismissed. He has tendered in evidence decree sheet Mark X. He has stated that plaintiff has filed the present suit without any cause of action. He has stated that area of suit land is 14 bighas 11 biswas. He has denied suggestion that defendants are interferring in possession of land which is in possession of plaintiff. He has stated that plaintiff is interfering in land of defendants. 9.4 DW2 Narayan Dass has stated that parties are known to him and he has also seen the suit property. He has stated that suit land is in possession of Dharmi since 30 years and he has planted orchard trees. He has stated that plaintiff did not remain in possession of suit property at any point of time. He has denied suggestion that he has deposed falsely in Court because he has litigation with plaintiff. 9.5 DW3 Gudru has stated that parties are known to him and he has seen the suit land. He has stated that apple trees planted over suit land. He has stated that age of apple trees is 15-19 years and Dharmi is in possession of suit land since 45 years and further stated that Jania did not remain in possession of suit land. He has stated that he does not know that defendants are interfering in land which is in possession of plaintiff measuring 12 bighas 4 biswas. 9.6 DW4 Ponu Ram has stated that parties are known to him and he has seen the suit land. He has stated that apple trees are planted over suit land. He has stated that age of apple trees is 15-19 years and further stated that Dharmi is in settled possession of suit property. 9.6 DW4 Ponu Ram has stated that parties are known to him and he has seen the suit land. He has stated that apple trees are planted over suit land. He has stated that age of apple trees is 15-19 years and further stated that Dharmi is in settled possession of suit property. He has stated that Jania did not remain in possession of suit property. 10. Following documentaries evidence filed by the parties. (1) Ext.PW1/A is copy of Khasra Girdawari w.e.f. 5.8.1989 to 29.4.1993. (2) Ext.PW1/B is copy of Missal Hakiyat. (3) Ext.PW1/C is copy of mutation No.113 dated 15.10.1994. (4) Ext.PA is copy of Missal Hakiyat (5) Ext.PB is copy of jamabandi for the year 1973-74. (6) Ext.PC is copy of jamabandi for the year 1968-69. (7) Ext.PD is copy of Khasra Girdawari w.e.f. 3.10.1973 to 19.4.1974. (8) Ext.PE is copy of Khasra Girdawari w.e.f. 4.5.1983 to 30.10.1983. (9) Ext.PF is copy of khasra Girdawari w.e.f. 4.5.1983 to 31.10.1983. (10) Ext.DW1/A is copy of decree sheet passed in civil suit No. 34-1 of 1990/59-1 of 1992 title Shyam Piari vs. Gita Ram and others. (11) Ext.D1 is copy of judgment passed by learned Civil Judge Court No. 2 Rohru District Shimla on 28.4.1994 in civil suit No. 34-1 of 1990/59-1 of 1992 title Shyam Piari vs. Gita Ram and others. 11. Submission of learned Advocate appearing on behalf of appellant that appellant Jania has acquired title in suit property on the basis of exchange of suit land with Gita Ram vide mutation No. 113 dated 15.10.1994 attested at Rohru District Shimla is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that during settlement process old Khasra No. 325 was bifurcated into four new Khasra Nos. i.e. 1469, 1469/1, 1471 and 1467. Appellant has himself mentioned the value of suit land in plaint as Rs.130/- (Rupees one hundred thirty). As per Section 17 of Indian Registration Act 1908 any exchange of immovable land valuing more than Rs.100/- (Rupees hundred) requires compulsory registration. Value of suit land which was exchanged between Jania and Gita Ram was more than Rs.100/- (Rupees hundred). Appellant did not place on record any registered document relating to exchange of land between Jania and Gita Ram. As per Section 17 of Indian Registration Act 1908 any exchange of immovable land valuing more than Rs.100/- (Rupees hundred) requires compulsory registration. Value of suit land which was exchanged between Jania and Gita Ram was more than Rs.100/- (Rupees hundred). Appellant did not place on record any registered document relating to exchange of land between Jania and Gita Ram. It is held that title of suit property did not vest in favour of Jania in the absence of registered document of exchange. See AIR 2002 (P&H) 290 title Satyawan and others vs. Raghubir. See AIR 1961 SC 1747 title Ram Saran and others vs. Domini Kher and others. 12. Submission of learned Advocate appearing on behalf of appellant that on the basis of mutation No. 113 dated 15.12.1994 title of suit land is vested in favour of Jania is rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that mutation does not confer or extinguish any title in suit property. See AIR 1994 SC 1496 title Naval Shankar Ishwar Lal Dave and another vs. State of Gujarat. 13. Submission of learned Advocate appearing on behalf of appellant that as per revenue record status of respondents in possession column is not recorded and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused entire revenue record placed on record. In Khasra No. 1469, 1469/1 measuring 0-66-19 possession of Smt. Shyam Piari wife of Jania has been recorded in possession column without any status and in Khasra No. 1471 measuring 0-06-79 possession of Kadaru recorded without any status and in Khasra No.1467 measuring 0-17-15 possession of Dharmu recorded without any status. In ownership column name of Gita Ram recorded. Revenue record is prepared by public servant in discharge of official duty and same is relevant fact under Section 35 of Indian Evidence Act 1872. Possession of appellant did not figure in revenue record prepared by public official relating to suit land under H.P. Land Revenue Act. Court has also perused mutation No. 113 dated 15.10.1994 carefully and revenue official has specfically mentioned in mutation that Dharmu son of Budhu is recorded in possession of suit land qua Khasra No. 1467 measuring 0-17-15 without any status. Court has also perused mutation No. 113 dated 15.10.1994 carefully and revenue official has specfically mentioned in mutation that Dharmu son of Budhu is recorded in possession of suit land qua Khasra No. 1467 measuring 0-17-15 without any status. Revenue official while attesting the mutation has specifically mentioned in mutation No. 113 that possession of Dharmu son of Budhu is recorded in cultivation column and not in ownership column and revenue official has also specifically mentioned in mutation No. 113 that possession of Dharmu would automatically become under Jania because in exchange of land only ownership right in immovable property is transferred. Even DW1 Dharmu, DW2 Narayan, DW3 Gudru and DW4 Ponu Ram have specifically stated that Dharmu is in settled possession of suit property. Testimonies of DWs 1 to 4 are trustworthy reliable and inspire confidence of Court relating to possession. Oral testimonies of DWs 1 to 4 are corroborated by revenue entries placed on record cited supra. It is well settled law that a person in settled possession of immovable property can be dispossessed only by way of due process of law. Appellant/plaintiff did not seek any relief of possession in present civil suit. In view of above stated facts and case law cited supra point No.1 of substantial question of law is decided against appellant. Findings upon point No. 2 of substantial question of law with reasons 14. Submission of learned Advocate appearing on behalf of appellant that mutation No. 113 dated 15.10.1994 can be looked for collateral purpose i.e. possession as mentioned under Section 49 of Registration Act 1908 is also rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that unregistered document can be looked for collateral purpose i.e. for the purpose of possession. In present case even revenue official while attesting mutation No. 113 dated 15.10.1994 did not held that Jania is in settled possession of suit land. Revenue official while attesting mutation No. 113 on 15.10.1994 held that in exchange only ownership right is seen. In present case settled possession of appellant over the suit land is not proved. Name of appellant did not figure in possession column in any of revenue record placed on record prepared by revenue authority under H.P. Land Revenue Act. Revenue official while attesting mutation No. 113 on 15.10.1994 held that in exchange only ownership right is seen. In present case settled possession of appellant over the suit land is not proved. Name of appellant did not figure in possession column in any of revenue record placed on record prepared by revenue authority under H.P. Land Revenue Act. Testimony of PW1 and PW2 that appellant is in settled possession of suit land cannot be relied because testimonies of PW1 and Ext.PW2 are not corroborated with revenue documentaries evidence placed on record. On the contrary testimonies of DWs 1 to 4 are corroborated with documentaries revenue evidence placed on record qua possession upon suit property. Point No. 2 of substantial question of law is decided against the appellant. Findings upon point No. 3 of substantial question of law with reasons 15. Submission of learned Advocate appearing on behalf of appellant that findings of learned District Judge Shimla (H.P.) that suit of the plaintiff was barred by principles of resjudicata is contrary to law and contrary to proved facts is accepted for the reasons hereinafter mentioned. Learned District Judge Shimla (H.P.) has specifically mentioned in judgment that Shyam Piari wife of appellant filed civil suit No. 34/1 of 1990/59-1 of 1992 title Shyam Piari vs. Gita Ram and others relating to suit property Ext.DW1/A placed on record and Jania was impleaded as co-defendant No.2 and present civil suit filed by appellant is barred under constructive resjudicata as mentioned under Section 11 Explanation IV of Code of Civil Procedure 1908. Court has carefully perused judgment and decree relating to civil suit No. 34/1 of 1990/59-1 of 1992 placed on record. In former civil suit No. 34/1 of 1990/59-1 of 1992 no relief was sought against Jania by Shyam Piari and Jania, Kadaru, Pannu and Dharmu were impleaded as proforma co-defendants. It is well settled law that when no relief is claimed against proforma defendants by plaintiff then proforma defendants are not under legal obligation to contest the suit on all grounds. In civil suit No. 34/1 of 1990/59-1 of 1992 relief was only sought against Gita Ram by Shyam Piari and no relief was sought against Jania, Kadaru, Pannu and Dharmu and they were impleaded as proforma defendants Nos. 2 to 5. In civil suit No. 34/1 of 1990/59-1 of 1992 relief was only sought against Gita Ram by Shyam Piari and no relief was sought against Jania, Kadaru, Pannu and Dharmu and they were impleaded as proforma defendants Nos. 2 to 5. Even parties in civil suit No. 34-1 of 1990/59-1 of 1992 and parties in civil suit No. 78/1 of 1995/54-1 of 1998 are different and even nature of suit land and cause of action in civil suit No. 34-1 of 1990/59-1 of 1992 and civil suit No. 78/1 of 1995/54-1 of 1998 are different. Hence it is held that in view of above stated facts concept of constructive resjudicata as mentioned under Section 11 Explanation IV of CPC will not apply in present case. It is held that learned first Appellate Court has erred in holding that suit of plaintiff was barred by principles of constructive resjudicata. Point No. 3 of substantial question of law is decided in favour of appellant. Relief 16. In view of above findings judgment and decree passed by learned District Judge Shimla H.P. affirmed except relating to findings of resjudicata under Section 11 Explanation IV of CPC. Learned Registrar Judicial will prepare decree sheet as required under Section 100 of Code of Civil Procedure 1908 forthwith. Parties are left to bear their own costs. Files of learned Trial Court and learned first Appellate Court along with certified copy of judgment and decree sheet be sent back forthwith. RSA is disposed of. Miscellaneous pending applications if any also stands disposed of.