Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 173 (HP)

Sarjeevan Singh v. Ram Nath

2016-03-02

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, Judge This Regular Second Appeal has been instituted against judgment and decree dated 31.8.2005 rendered by learned Additional District Judge, Fast Track Court, Una, District Una, HP in Civil Appeal No. 145/98 RBT 99/04/98. 2. “Key facts" necessary for the adjudication of the present appeal are that the appellants-plaintiffs (hereinafter referred to as plaintiffs’' for convenience sake) filed a suit against respondents-defendants (hereinafter referred to as 'defendants' for convenience sake) for issuance of permanent injunction restraining the defendants from interfering in any manner or raising construction over the suit land measuring 0-06-65 square metres comprised in Khewat No. 97 min, Khatauni No. 242 min, Khasra Nos. 839, 840 and 841 as entered in Misal Hakiat 1988-89 situate in village Kotla Kalan, Tehsil & District Una, Himachal Pradesh jointly owned and possessed by the plaintiffs, and in the alternative suit for possession. According to the plaintiffs, they are co-owners in joint possession of the land as detailed above. Defendants are strangers and have nothing to do with the suit land. 3. Suit was contested by the defendants. According to the defendants, plaintiffs are neither owners nor in possession of the suit land. It is further averred that defendants have been coming in possession of the suit land on payment of rent since the time of their forefathers under owners and have been so recorded in the revenue record in the year 1978-79. Consolidation authorities deleted the names of the defendants wrongly and illegally, at the back of the defendants and without their knowledge. Thereafter, defendants filed revision petition under Section 54 of the Consolidation of Holdings Act, which was allowed. 4. Replication was filed. Issues were framed by learned trial Court on 22.9.1993. He decreed the suit vide judgment and decree dated 24.6.1998. Defendants feeling aggrieved filed an appeal before the Additional District Judge, Fast Track Court, Una against judgment and decree dated 24.6.1998. Learned Additional District Judge, Fast Track Court, Una allowed the appeal on 31.8.2005. Hence, this Regular Second Appeal. 5. The appeal was admitted on 19.5.2006, on the following substantial question of law: “Whether the reversal of the decree of the trial court by the first Appellate Court is the result of misappreciation and misconstruction of the evidence adduced by the parties?” 6. Mr. T.S. Chauhan, Advocate, has supported the judgment and decree dated 24.6.1998. 5. The appeal was admitted on 19.5.2006, on the following substantial question of law: “Whether the reversal of the decree of the trial court by the first Appellate Court is the result of misappreciation and misconstruction of the evidence adduced by the parties?” 6. Mr. T.S. Chauhan, Advocate, has supported the judgment and decree dated 24.6.1998. According to him, first appellate Court has misread the oral as well as documentary evidence on record. He then contended that the order Ext P-1 dated 18.12.1990 by Senior Sub Judge, was not collusive. 7. Mr. N.K. Thakur, learned Senior Advocate has supported the judgment and decree passed by learned first appellate Court. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. Plaintiff Sarjeevan has appeared as PW-1. According to him, they were owners in possession of 1 ½ Kanal of land. Land was in the shape of a hill. Suit land was inherited from their forefathers. He did not know when consolidation was done in the village. He denied that defendants have been coming as tenants. He did not know that names of the defendants were ever deleted from the revenue record during consolidation. 10. PW-2 Roop Singh has deposed that he had seen the suit land which is 1 ½ Kanal and is owned and possessed by the plaintiffs. In his cross-examination, he deposed that he did not know whether defendants were tenant over the suit land. 11. DW-1 Ram Nath has testified that suit land is 1 ½ Kanal. It was in their possession from the time of their forefathers. Previously, they were paying Chakota to the tune of Rs.1.75 Paisa. Consolidation was done in the village in 1979-80 and Joginder Singh has recorded land in his name. Revision was preferred before the Director of Consolidation. Director issued direction to the Consolidation Officer to correct the entries. Consolidation Officer decided the case in their favour. Plaintiffs never filed an appeal against said order. Mutation qua the suit land was sanctioned in his favour. He was owner in possession of the suit land. 12. DW-2 Tara Chand deposed that he had seen the suit land. It was owned and possessed by the defendants. Plaintiffs are not in possession of the suit land. 13. Plaintiffs never filed an appeal against said order. Mutation qua the suit land was sanctioned in his favour. He was owner in possession of the suit land. 12. DW-2 Tara Chand deposed that he had seen the suit land. It was owned and possessed by the defendants. Plaintiffs are not in possession of the suit land. 13. Plaintiffs have tendered in evidence photocopy of Order dated 18.12.1990 rendered by Senior Sub Judge, Una in Civil Suit No. 159/90 whereby a decree for joint possession with 3/4th share of plaintiffs and remaining 1/4th share with defendants, was passed. Ext. P-2 is the copy of Misal Hakiat Bandobast Jadid Sani for the year 1988-89, in which suit land has been shown to be in possession of Joginder Singh son of Lachhman Singh and as per remarks column vide mutation No. 196, plaintiffs have been shown to be co-owners in possession to the extent of ¾ share as this mutation has not been finalised till date. Nature of suit land was Barani Avval. Ext. P-3 is the copy of Misal Hakiat Bandobast for the year 1988-89, in which Joginder Singh has been shown owner-inpossession but new Khasra No. 1715 and 1717 including old Khasra No. of 1715 has been mentioned as 1595 and of old Khasra No. 1717 has been mentioned as 1597 and nature of the land has been shown as Gair Mumkin Toda and Bheth. Copy of Bandobast Jadid Sani for the year 1988-89 is Ext. P-4. 14. Defendants have tendered in evidence copy of Misal Hakiat Bandobast for the year 1988-90 and same copy has been tendered in evidence by the plaintiffs as Ext. P-4. Ext. P-4 shows that vide mutation No. 214, the ownership has been transferred in the name of the defendants and defendants have been recorded in the column of possession. However, in the note pertaining to daily diary No. 48 dated 10.10.1991, different Khasra numbers have been shown including the suit land in Ext. D-1 and Ext. P-4. Ext. P-4. Ext. P-4 shows that vide mutation No. 214, the ownership has been transferred in the name of the defendants and defendants have been recorded in the column of possession. However, in the note pertaining to daily diary No. 48 dated 10.10.1991, different Khasra numbers have been shown including the suit land in Ext. D-1 and Ext. P-4. Ext. D-2 is the copy of order dated 14.7.1988 under Section 54 of the HP Holdings (Consolidation and Prevention of Fragmentation) Act in which defendant Ram Nath and Bal Krishan have impleaded Joginder Singh and others challenging the deletion of revenue entries qua tenancy during consolidation and the directions were issued to the Consolidation Officer to pass an appropriate order after giving an opportunity to the parties and holding proper inquiry thereof. Ext. D-3 is the order of Consolidation Officer, Una dated 14.12.1992 in pursuance of direction under Section 54 of the HP Holdings (Consolidation and Prevention of Fragmentation) Act vide order Ext. D-2, whereby he restored the revenue entries which existed before their deletion which also included suit land. Learned first appellate Court has rightly come to the conclusion that the decree Ext. P-1 dated 18.12.1990 rendered by learned Senior Sub Judge in Civil Suit No. 159/1990 was collusive to defeat order passed by the Consolidation Officer restoring entries in the name of the defendants vide Order passed by the Director Ext. D-2 dated 14.7.1988 and of Consolidation Officer Ext. D-3 dated 14.12.1992. Vide Ext. D-2, entries of possession of the suit land qua the defendants in lieu of tenancy rights were restored. There is specific reference to the old Khasra Nos. 1715 and 1717, out of which present Khasra Nos. 839, 840 and 841 have been carved out. 15. Learned trial Court has committed error while reading revenue entries resulting in miscarriage of justice. Moreover, plaintiffs have never challenged the orders passed by the competent authorities during consolidation proceedings. First appellate Court has correctly appreciated oral as well as documentary evidence. It has come in the statement of DW-1 Ram Nath, that they were paying Chakota to the tune of Rs.1.75 paisa to the owners. Substantial question of law is answered accordingly. 16. In view of the discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stand disposed of. No costs.