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2016 DIGILAW 1125 (HP)

Sukh Dev v. Kishan Chand

2016-06-22

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal has been instituted against Judgment dated 18.3.2002 rendered by the learned Additional District Judge Una (H.P.) in Civil Appeal (RBT) No. 198/2K/97. 2. “Key facts" necessary for the adjudication of the present appeal are that the appellant-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) filed a suit for declaration with permanent injunction and in the alternative, for possession, against the respondents-defendants (hereinafter referred to as 'defendants' for convenience sake). According to the plaintiff, land measuring 0-07-92 Hectares bearing Khewat No. 188, Khatauni No. 392, Khasra No. 605 as entered in Misal Hakiat Ishtemal for the year 1991-92 was owned and possessed by the plaintiff and defendants had no right, title or interest over the suit land and entries in the revenue record in favour of defendant No. 1 as owner-in-possession were wrong, illegal and void. Judgment and decree dated 7.1.1978 rendered by the learned Senior Sub Judge, Una, HP passed in Civil Suit No. 228/1976 titled as Sukh Dev vs. Labhu and in Civil Appeal No. 47/1978 dated 26.2.1980 of learned District Judge, Hamirpur, Una were not binding upon the plaintiff. It is also averred in the plaint that Smt. Nanki widow of Dhaula was the original owner of the suit land and she was a distant relative of the plaintiff. She had executed a valid will in favour of the plaintiff about her property and after the death of Nanki, property was inherited by the plaintiff. Mutation No. 780 was sanctioned in favour of the plaintiff on 8.1.1976, and after the death of Nanki Devi, plaintiff had become owner of the suit land. It was further averred that plaintiff was minor at the time of death of Nanki and defendant No.1 taking undue advantage of the minority of plaintiff, filed Civil Suit No. 228/1976 for permanent injunction against the plaintiff. In the said case, mother of the plaintiff, Mansho Devi was appointed as guardian of plaintiff who was minor in the year 1976. Mother of plaintiff took no interest in the said suit and she acted in a highly negligent manner. In the said case, mother of the plaintiff, Mansho Devi was appointed as guardian of plaintiff who was minor in the year 1976. Mother of plaintiff took no interest in the said suit and she acted in a highly negligent manner. Appointment of said Mansho Devi as guardian of plaintiff was not in accordance with law and same was illegal and as such plaintiff was not bound by the decision dated 7.1.1978 in the Civil Suit and judgment and decree in Appeal No. 47/1978 rendered by the District Judge, Hamirpur at Una on 26.2.1980. 3. Suit was contested by the defendants. According to them, suit was contested by the mother of the plaintiff. She had no adverse interests to that of the interests of the plaintiff. They supported the mutation No. 990 dated 10.9.1982. 4. Issues were framed by the learned Sub Judge First Class on 4.2.1995. He dismissed the suit on 30.8.1997. Plaintiff filed an appeal before the learned Additional District Judge, Una. He also dismissed the appeal on 18.3.2002. Hence, this Regular Second Appeal. 5. The Regular Second Appeal was admitted on 24.5.2003, on the following question of law:- “Whether the impugned judgments and decrees being contrary to the provisions of Section 104(8) of the H.P. Tenancy and Land Reforms Act and Rules 27 to 29 of the H.P. Tenancy and Land Reforms Rules, 1975 are unsustainable in the eyes of law?” 6. Mr. Ajay Sharma, Advocate, on the basis of the substantial question of law framed, has vehemently argued that the impugned judgments and decrees were contrary to the provisions of Section 104(8) of the HP Tenancy & Land Reforms Act and Rules 27 and 29 of the HP Tenancy & Land Reforms Rules, 1975. 7. I have heard Mr. Ajay Sharma, Advocate and also gone through the record carefully. 8. Ext. D1 is the certified copy of judgment dated 7.1.1978 passed by learned Senior Sub Judge, Una on 7.1.1978 in case titled as Labhu vs. Sukhdev. Learned Senior Sub Judge has already held the plaintiff i.e. Labhu @ Labh Singh, in Civil Suit No. 228/1976, in possession of the suit land. Labhu was declared as non-occupancy tenant. Judgment rendered by the learned Senior Sub Judge on 7.1.1978 was upheld by the learned District Judge, Hamirpur at Una, in appeal. Learned Senior Sub Judge has already held the plaintiff i.e. Labhu @ Labh Singh, in Civil Suit No. 228/1976, in possession of the suit land. Labhu was declared as non-occupancy tenant. Judgment rendered by the learned Senior Sub Judge on 7.1.1978 was upheld by the learned District Judge, Hamirpur at Una, in appeal. Thus, the judgment rendered by the Senior Sub Judge, on 7.1.1978 rendered in Civil Suit No. 228/1976 has attained finality. Mutation No. 990 dated 10.9.1982 was attested in favour of the defendant Labhu @ Labh Singh vide Ext. P7. As proprietary rights were conferred on Labhu under Section 104 of the HP Tenancy & Land Reforms Act, he was shown in Misal Hakiat Ishtemal for the year 1991-92 (Ext. P1) as owner-in-possession of the suit land. He was declared non-occupancy tenant. Dispute raised by the plaintiff in the present suit has already been finally adjudicated upon by the learned Senior Sub Judge on 7.1.1978 in Civil Suit No. 228/1976. Certified copy of the judgment dated 7.1.1978 is Ext. D2 and copy of judgment rendered by the learned District Judge, Una dated 26.2.1980 is Ext. D1. Mother of the plaintiff was appointed as guardian as per record in Civil Suit No. 228/1976. She contested the suit. Plaintiff has attained the age of majority in the year 1983. He could challenge the judgment and decree dated 7.1.1978, after attaining the age of majority. Learned first appellate Court has rightly come to the conclusion that the present suit was time barred also. Judgment and decree rendered by the learned Senior Sub Judge Una operate as res judicata against the plaintiff, since Labh Singh has been declared as non-occupancy tenant over the suit land. 9. Mr. Ajay Sharma, Advocate has failed to point out that in what manner proprietary rights conferred upon Labhu @ Labh Singh were against the provisions of Section 104(8) of the HP Tenancy & Land Reforms Act. The proprietary rights have rightly been conferred upon Labhu by the competent authority. 10. The substantial question of law is answered accordingly. 11. Accordingly, in view of the discussions and analysis made hereinabove, the present appeal has no merits and the same is dismissed. Pending applications, if any, also stand disposed of. No costs.