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2016 DIGILAW 1348 (HP)

Mohan Lal v. Sarv Dayal

2016-07-12

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This Regular Second Appeal has been instituted against judgment and decree dated 1.2.2005 rendered by the learned District Judge, Hamirpur, District Hamirpur, HP, in Civil Appeal No. 99 of 2003. 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 stating therein that Late Sunder was the owner of the land comprised in Khata No. 17 min. Khatauni No. 22, Khasra No. 4, measuring 4 Kanal 18 Marla to the extent of 50/219 shares and Khasra No. 294/20 measuring 2 Kanal to the extent of 50/419 shares, situate in Tika Thamani, Manjhali, Mauza Lahdar, Tehsil Barsar, District Hamirpur, HP. Sunder was real brother of the plaintiff. Sunder had not taken any loan from agricultural society, Bhota and from any other bank. His land was wrongly auctioned vide auction dated 17.1.1976 in favour of the defendant and thereafter mutation No. 98 was also wrongly attested in favour of the defendant. The mutation was not binding upon plaintiff. Suit land was in his possession. Defendant never occupied suit land. 3. Suit was contested by the defendant. According to the defendant, in fact, Sunder had taken loan from agricultural society Bhota in lieu of which the land of Sh. Sunder was auctioned for a sum of Rs.1451.82 and the report regarding this sale was also made in the record of Patwari. Auction money was paid by the defendant and thereafter land was transferred to him to the extent of share of Sunder. Revenue record was correct. Issues were framed by the learned trial Court. He dismissed the suit on 11.9.2003. Plaintiff filed an appeal before District Judge, Hamirpur. He dismissed the same on 1.2.2005. Hence, this Regular Second Appeal. 4. The Regular Second Appeal was admitted on 12.5.2005 on the following substantial question of law: “Whether the findings recorded by the learned trial court as affirmed by the learned first Appellate Court are dehors the evidence on record and against the documentary evidence produced by the plaintiff-appellant? 5. Mr. Dalip K. Sharma, Advocate, on the basis of substantial question of law, has vehemently argued that the learned Courts below have not correctly appreciated the oral as well as documentary evidence. 6. Mr. R.K. Sharma, learned Senior Advocate, has supported the judgments and decrees passed by the learned Courts below. 5. Mr. Dalip K. Sharma, Advocate, on the basis of substantial question of law, has vehemently argued that the learned Courts below have not correctly appreciated the oral as well as documentary evidence. 6. Mr. R.K. Sharma, learned Senior Advocate, has supported the judgments and decrees passed by the learned Courts below. 7. I have heard the learned counsel for the parties and also gone through the record carefully. 8. Mohan Lal (PW-1) has testified that he was owner-in-possession of the suit land. Earlier his brother Sunder was owner and after his death, plaintiff is in possession of suit land. Sunder has not taken any loan from agricultural society Bhota but the land of Sunder was wrongly put to auction and sale. Mutation No. 98 was wrongly sanctioned in favour of the defendant. Defendant started interfering in his possession and threatened to raise construction and cut trees. In his cross-examination, he has admitted that his brothers were having separate shares. He has admitted that defendant had deposited the auction money amounting to Rs.1451.82. 9. Gian Chand (PW-2) is the record keeper in the office of Deputy Commissioner, Hamirpur. He has proved the copy of sale deed Ext. PW-2/A. 10. Shiv Raj Singh (PW-3) proved signatures Ext. PW-3/A on sale deed. 11. Bhagat Ram (PW-4) has corroborated the version of PW-1. 12. Ajit Singh (PW-5) proved Ext. PW-5/A to the effect that as per report of agricultural society Bhota, Sunder was not a member of the society. He has not raised loan from society. In his cross-examination, he stated that the record was in Urdu and he could not tell whether Sunder had taken any loan or not. 13. Pritam Chand (PW-6) is the Secretary of CAS Adhar. He has proved certificate Ext. PW-6/A. According to him, Sunder has not taken any loan from the agricultural society Adhar. 14. Subhash Chand (PW-8) has proved the copy of mutation Ext. PW-8/A. He has also produced on record copy of revenue record i.e. Ext. P1, copy of Jamabandi for the year 1981-82, pertaining to land bearing Khasra no. 4 measuring 4 Kanal 18 Marla. There is a note in the remarks column of it that total share of Sunder has been purchased by Sarav Dayal. Ext. P-2 and Ext. P-3 are the Jamabandis for the years 1996-97 in which defendant has been shown as owner-in-possession in place of Sunder. Ext. P-4 to Ext. 4 measuring 4 Kanal 18 Marla. There is a note in the remarks column of it that total share of Sunder has been purchased by Sarav Dayal. Ext. P-2 and Ext. P-3 are the Jamabandis for the years 1996-97 in which defendant has been shown as owner-in-possession in place of Sunder. Ext. P-4 to Ext. P-6 are the Jamabandis for the years 1991-92 and 1986-87 showing the defendant as owner-in-possession. Ext. P-7 is the Jamabandi for the years 1976-77. In the remarks column there is a note that the share of Sunder has been mutated in the name of Sarav Dayal. There is also another note in this Jamabandi that vide Rapat No. 299 dated 18.3.1986, share of Sunder was attached in favour of cooperative society for Rs.1451.82. 15. Defendant has appeared as DW-1. According to him, brother of the plaintiff had taken a loan and his land was auctioned on 17.1.1986. He had deposited Rs.1451.82 as per orders of Deputy Commissioner in respect of land measuring 1 Kanal 11 Marla. At the time of auction Rup Singh Chowkidar and Sunder were present. Since then he is coming in possession of the suit land. Plaintiff had knowledge of the same. He never interfered in the possession of the plaintiff since he himself is in possession of the suit land. Plaintiff had filed the suit just to harass him. 16. Roop Singh (DW-4) has corroborated the version of the DW-1. 17. Defendant has placed on record, copy of mutation Ext. D-1 whereby suit land was mutated in favour of the defendant on the basis of auction in question. It is evident from the revenue record from the years 1976-77 that the suit land was owned by Sunder but his share was attached for Rs. 1451.82 in favour of the society. There is Rapat No. 299 vide Ext. DW-2/A. Share of Sunder was auctioned on 17.1.1976 as per this report for Rs.1451.82. Share was purchased by defendant. Now as far as Ext. PW-5/A is concerned, it is not discernible in which capacity Ajeet Singh issued the certificate. He was neither President, nor Secretary of the society. He has not deposed that he is member of the Society. In his cross-examination, he has admitted that record was in Urdu and he could not state whether Sunder had obtained any loan or not. Ext. PW-5/A is concerned, it is not discernible in which capacity Ajeet Singh issued the certificate. He was neither President, nor Secretary of the society. He has not deposed that he is member of the Society. In his cross-examination, he has admitted that record was in Urdu and he could not state whether Sunder had obtained any loan or not. Ext. PW-6/A has been issued by Pritam Chand, Secretary Agricultural Society however, he has not brought any record to the Court. His statement is general. Defendant has conclusively proved that Sunder had obtained loan from agricultural society. He did not pay the same and his land was auctioned. Defendant has purchased the same. More particularly, land has been ordered to be sold as per order of the Collector. Plaintiff has not arrayed Collector as a party. There is no illegality in the proceedings of auction dated 17.1.1976. Revenue entries were made when Sunder was alive. Suit property was put to sale on 17.1.1976. Suit was filed in the year 2002. It was barred by limitation. Land of Sunder was attached in favour of the agricultural society for a sum of Rs.1451.82 as per Ext. DW-2/A. Document Ext. DW-3/C pertains to different loan. Defendant has been shown in possession of suit land as noticed since 1976-77 onwards. Learned Courts below have correctly appreciated the evidence, oral as well as documentary. 18. The substantial question of law is answered accordingly. 19. 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.