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2016 DIGILAW 1064 (HP)

Mansha Devi v. Varinder Kumar

2016-06-16

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant challenging the findings of the Additional District and Sessions Judge, Fast Track Court, Hamirpur, dated 27.8.2005, in Civil Appeal No.7/99/310 of 2004, whereby the learned Addl. District and Sessions Judge, affirmed the judgment and decree of the Sub Judge, Ist Class, Hamirpur, dated 02.12.1998 in Civil Suit No.129 of 1993. 2. Briefly stating the facts giving rise to the present appeal are that the respondents/plaintiffs filed a suit for declaration and permanent injunction against one Chatar Singh, the then defendant, who was the husband of the present appellant ((Mansa Devi) qua the suit land comprising of Khata No.19, Khatoni No.43, old Khasra No.91 and new Khewat No.22, Khatoni No.22, Khasra No.205, measuring 5 Kanals 1 Marla, situated in Tika Khorar, Mouza Galore, Tehsil Nadaun, District Hamirpur, H.P. on the allegations that their predecessor-in-interest one Chaudhary, son of Tota, was recorded as co-sharers in exclusive possession of the suit land at the time of settlement in the year 1910-11 and after partition the suit land had fallen to his share. Mutation No.9 of 1919 was attested in his favour to this effect. The suit land had fallen to the share of Shri Chaudhary, the predecessor-in-interest of the plaintiffs in partition case titled as Barar Versus Chuha bearing Case No.221 of 1946, decided on 2.5.1919. They further averred that in the year 1919-20 at the time of preparation of jamabandi the suit land was shown in the ownership and possession of one Shri Tota, father of Chaudhary, by mistake on account of the revenue officials. They have averred further that their predecessor-in-interest Shri Chaudhary was absolute owner in possession of the suit land and the same could not be transferred in the name of his father deceased Tota. The entry of the suit land, which was made in favour of Tota in the year 1919-20 is, therefore, illegal, wrong and arbitrary and is liable to be set aside and corrected. They have further averred that the possession of their predecessor-in-interest had never been disturbed by any one and, therefore, the mistake could not be detected earlier. They have further averred that after the death of Tota, the suit land was mutated in the name of his two sons, Sahib Ditta and Chaudhary, who was their predecessor-in-interest in the year 1927-28. They have further averred that the possession of their predecessor-in-interest had never been disturbed by any one and, therefore, the mistake could not be detected earlier. They have further averred that after the death of Tota, the suit land was mutated in the name of his two sons, Sahib Ditta and Chaudhary, who was their predecessor-in-interest in the year 1927-28. Consequently, in the subsequent jamabandi for the year 1931-32, the suit land was shown owned by their predecessor-in-interest Chaudhary and his brother Sahib Ditta, but the possession was shown exclusively of Shri Chaudhary. They had averred further that the name of Tota was wrongly incorporated in the jamabandi for the year 1919-20 and subsequently Sahib Ditta and his descendants were shown owners to the extent of half share to the suit land and this change having been made by the revenue officials without any reason or order is illegal, null and void and the same is liable to be set aside. They have averred that they, and prior to them, their predecessor-in-interest, had made improvements in the suit land by raising orchard there over the suit land and they had also filed proceeding No.12/84 in the Court of Collector, Hamirpur for the correction of revenue entries qua the suit land titled as Varinder Kumar versus Chatter Singh, which was allowed by the District Collector vide his order dated 31.3.1986. They have further averred that the then defendant, the predecessor-in-interest of the appellant, went in an appeal against the order of District Collector, Hamirpur, before the Divisional Commissioner, who remanded the case to the Collector for fresh decision vide order dated 18.12.1991. The Financial Commissioner, vide his order dated 16.3.1992 held the order of the Divisional Commissioner dated 18.12.1991, to be valid vide which the parties were directed to seek remedy before the Civil Court under Section 46 of the H.P. Land Revenue Act, and in accordance with this order, the suit came to be filed for declaration and injunction qua the suit land. Chatter Singh, the predecessor-in interest of the present appellant filed a written statement and contested the suit. He averred that one Tota was predecessor-in-interest of the parties, who had got two sons namely Sahib Ditta and Chaudhary and he was the son of Sahib Ditta, whereas the plaintiffs were successors-in interest of Chaudhary. Chatter Singh, the predecessor-in interest of the present appellant filed a written statement and contested the suit. He averred that one Tota was predecessor-in-interest of the parties, who had got two sons namely Sahib Ditta and Chaudhary and he was the son of Sahib Ditta, whereas the plaintiffs were successors-in interest of Chaudhary. He further averred that there was no partition qua the suit land and if there was any mutation the same is null and void. He also alleged that after the death of Tota, common ancestor of the parties, the suit land along with his other property was inherited by Sahib Ditta and Chaudhary and after the death of Sahib Ditta, he succeeded to his share and the share of Chaudhary was succeeded to by Bhagat and Partap and then by the present plaintiffs. He has specifically averred that now he and the plaintiffs are in possession of the suit land as owners and the entries in the revenue record are correct. He had further averred that during the life time of Tota the question of Chaudhary predecessor-in-interest of the plaintiffs being allotted land did not arise and the suit land being Shamlat could not be allotted to Chaudhary, as he was not having landed property in his name during the life time of his father. He also averred that there was partition case pending between the parties for a quite time and this fact had never been agitated by them, therefore, it cannot be agitated now. He further averred that the suit is not within time and denied the case of the plaintiff as a whole. In the replication, all allegations were reiterated by the plaintiffs and all those contrary in the written statement were controverted by them. The appellant maintained the first appeal and learned Lower Appellate Court dismissed the appeal. Hence the present appeal, which was admitted on the following substantial questions of law :- 1. Whether the findings of the Court below are perverse, based on misreading of oral and documentary evidence and ignoring the presumption of truth attached to the consistent revenue records for the last sixty years, particularly, jamabandi for the year 1919-20 Ext.D-4, jamabandi for the year 1923-24 Ext.D-5 and jamabandi for the year 1931-32 Ext.D-6? 2. Whether the findings of the Court below are perverse, based on misreading of oral and documentary evidence and ignoring the presumption of truth attached to the consistent revenue records for the last sixty years, particularly, jamabandi for the year 1919-20 Ext.D-4, jamabandi for the year 1923-24 Ext.D-5 and jamabandi for the year 1931-32 Ext.D-6? 2. Whether the suit of the plaintiff was within limitation when the plaintiff had an occasion to know the entries of the last sixty years and the mere order of the Financial Commissioner conferred the right to file the suit? 3. I have heard the learned counsel for the parties and have also gone through the records. 4. The learned counsel for the appellant argued that the findings of the Court below are liable to be set aside as the Court below has relied upon the inadmissible oral and documentary evidence, which has vitiated the findings, particularly, the fact that Chaudhary had inherited the property in the life of his father, Tota and the name of Chaudhary was wrongly incorporated and had been wrongly changed to that of Tota in the year 1919. The learned counsel appearing for the respondent has argued that the judgment and decree passed by the learned trial Court and upheld by the learned Appellate Court is just, reasoned and in accordance with law. 5. To appreciate the arguments of the learned counsel for the parties, I have gone through the entire record. 6. On perusal of the record of this case, it is proved on record from the documentary evidence that the suit land was earlier in exclusive possession of Chaudhary, the predecessor-in-interest of the plaintiffs/respondents and during partition in the year 1919, it was allotted to him and he became its exclusive owner in possession vide mutation Ext. PH and after his death naturally the suit land is to be inherited by his successors i.e. the present respondent and, therefore, they are owners in possession of the suit land and their possession is proved on the record as yet from the oral evidence led by the plaintiffs(respondents), which is in consonance with the documentary evidence on record. PH and after his death naturally the suit land is to be inherited by his successors i.e. the present respondent and, therefore, they are owners in possession of the suit land and their possession is proved on the record as yet from the oral evidence led by the plaintiffs(respondents), which is in consonance with the documentary evidence on record. Therefore, the learned Courts below have come to the right conclusion that the plaintiffs (respondents) are owners in possession of the suit land and the entry in favour of the defendant as co-owner in possession of the suit land with the plaintiffs is altogether wrong and is liable to be corrected. 7. The record of partition produced by the plaintiff/respondents is also on record which is Ext. PS to Ext. PT. Ext. PU makes it clear that the suit land comprising of old Khasra No. 91 measuring 5.1 Kanals has been allotted to Chaudhary, the predecessor-in-interest of the plaintiffs. Therefore, it is clear that the predecessor-in-interest of the plaintiff/respondent namely Chaudhary son of Tota became exclusive owner in possession of the suit land after partition and the mutation Ext. PH was to be carried forward in the jamabandi for the year 1919-20 Ext. PG and the Revenue Department instead of making entry of ownership and possession in the name of Chaudhary entered the name of his father Tota and subsequently on the basis of succession after the death of Tota made the entry of ownership in favour of Chaudhary and Sahib Ditta. So, this entry of ownership made in the jamabandi for the year 1919-20 Ext. PG is altogether wrong and without any basis. So, the substantial question of law at Sr.No.1 is answered holding that the findings arrived at by the Courts below are as per the law as the presumption of truth attached to Jamabandi Ext.D4 to Ext. D6 is resorted by the respondent/plaintiff by leading a cogent and trustworthy evidence. 8. PG is altogether wrong and without any basis. So, the substantial question of law at Sr.No.1 is answered holding that the findings arrived at by the Courts below are as per the law as the presumption of truth attached to Jamabandi Ext.D4 to Ext. D6 is resorted by the respondent/plaintiff by leading a cogent and trustworthy evidence. 8. So far as the question of limitation is concerned, the same plea is also not available to the defendant/appellant, because as per allegations made by the plaintiffs in the plaint, they filed proceedings No.12/84 in the Court of Collector, Hamirpur for correction of the revenue entry qua the suit land, which was allowed by the Collector vide his order dated 31.3.1986, by holding that the entry in the year 1919-20 was wrong and the same was to be rectified through Fard Badar. This case of the plaintiff is proved on record from the order of the Collector Ext. PY on record. Against this order, the defendant/appellant preferred an appeal before the Divisional Commissioner who remanded the case to the Collector and the Collector vide his order dated 28.12.1990 directed the parties to go to the civil Court for redressing their grievances, against which the plaintiffs filed an appeal before the Divisional Commissioner, Mandi, who vide his order dated 18.12.1991 upheld the order of the Collector and directed the parties to seek remedy under Section 46 of the H.P. Land Revenue Act. Against this order, the plaintiffs again filed an appeal before the Financial Commissioner, who vide his order dated 16.3.1992 upheld the order of Divisional Commissioner, Mandi. All these facts are not in dispute and are clear from Ext. PP, the order dated 16.3.1992 passed by the then Financial Commissioner (Appeals), H.P. The plaintiffs were at liberty to file the suit within three years from this order dated 16.3.1992. In view of this, the substantial question No.2 is also answered by holding that the suit was within limitation. 9. The learned Courts below have properly appreciated the evidence on record and have rightly decreed the suit. No irregularity or illegality has been committed by the learned trial Court and no interference is required by this Court. The impugned judgment and decree are sustainable in the eyes of law. 10. For the aforesaid reasons, the appeal filed by the appellant is without merits and the same is accordingly dismissed. No irregularity or illegality has been committed by the learned trial Court and no interference is required by this Court. The impugned judgment and decree are sustainable in the eyes of law. 10. For the aforesaid reasons, the appeal filed by the appellant is without merits and the same is accordingly dismissed. However, in the peculiar facts and circumstances of the case, parties are left to bear their own costs.