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Himachal Pradesh High Court · body

2016 DIGILAW 1819 (HP)

State of H. P. v. Govind Singh

2016-08-30

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This regular second appeal is instituted against the impugned judgment and decree dated 11.7.2003 rendered by learned District Judge, Kangra at Dharamshala, H.P. in Civil Appeal No. 137-N/XIII/2002. 2. The key facts necessary for the adjudication of the appeal are that the respondents/ plaintiffs (hereinafter referred to as the “plaintiffs” for convenience sake) filed a suit for declaration and injunction against appellants as well as proforma respondents No. 3 and 4 (hereinafter referred to as defendants and proforma defendants respectively for convenience sake) on the averments that Guro, Munshi, Jaswant and Dharam Singh, sons of Mehtab Singh were the previous owners of the land measuring 0-46-66 hectares as detailed in the plaint. Later on, Guro etc. mortgaged the suit land with possession in favour of Dinu and Tasirudin. The suit land remained under the possession of the mortgagees as per the revenue record till 1940-41. The mortgage was redeemed vide mutation No. 1109 dated 18.3.1952. The suit land was mutated in the names of plaintiffs and proforma defendants because in the meantime they had purchased the suit land from the previous owner namely Guro. They started cultivating the suit land and raised orchard over it. However, during consolidation proceedings in the year 1952, the suit land, which was earlier in possession of Guro etc. was wrongly, illegally and without any notice to the plaintiffs and the proforma defendants mentioned as “Shamlat Taraf Raja Khassa.” The consolidation authorities had no right to change or convert the ownership of the land, which was under the ownership and possession of the plaintiffs and proforma defendants. 3. The suit was contested by the defendants. It is alleged that as per mutation No. 1109, Munshi Ram, Jaswant Singh and Dharam Singh, owners/mortgagors had sold half of the land comprised in Khasra Nos. 539 and 552 to one Jai Chand and remaining half to Dhian Singh, Onkar Singh, Jaswant Singh and Govind Singh. However, during consolidation proceedings, Jai Chand and Dhian Singh etc. were given Khasra Nos. 459 and 513 in lieu of the aforesaid purchased land, which was redeemed vide mutation No. 1269 dated 7.3.1956 and mutation No. 1270 dated 30.5.1956. It was denied that Khasra No. 1830 of Mohal “Raja Khassa” was part of the land purchased by the plaintiffs and proforma defendants. were given Khasra Nos. 459 and 513 in lieu of the aforesaid purchased land, which was redeemed vide mutation No. 1269 dated 7.3.1956 and mutation No. 1270 dated 30.5.1956. It was denied that Khasra No. 1830 of Mohal “Raja Khassa” was part of the land purchased by the plaintiffs and proforma defendants. The suit land being “Shamlat Taraf Raja Khassa” was vested in the State of H.P. under the provisions of law vide mutation No. 2207 dated 20.1.1983. During consolidation proceedings, the suit land was measured in old Khasra No. 514 in the ownership of “Shamlat Taraf Raja Khassa” and was recorded in possession of the plaintiffs and proforma defendants as co-sharers of Shamlat land and one Sardhu was non-occupancy tenant under Jai Chand, a co-sharer in the Shamlat land. The consolidation authorities were competent to consolidate the holding and then to divide amongst the owners as per the scheme framed under the consolidation. In lieu of Khasra No. 539 i.e. landed property before consolidation proceedings, the land owners were given Khasra Nos. 459 to 513, in which the entry of ownership as well as mortgage was made as per old entries. 4. The replication was filed by the plaintiffs. The learned trial court framed the issues on 9.2.1998 and dismissed the suit vide judgment and decree dated 29.6.2002. The plaintiffs feeling aggrieved with the judgment and decree dated 29.6.2002 preferred an appeal before the learned first Appellate Court, who allowed the same vide impugned judgment and decree dated 11.7.2003. Hence, this regular second appeal, which was admitted on following substantial questions of law on 1.3.2004:- 1. Whether the judgment and appeal under challenge is vitiated as the suit filed was barred by limitation? 2. Whether the Courts below have wrongly entertained the suit in view of the appeal pending before the learned Commissioner? 5. Mr. Neeraj K. Sharma learned Deputy Advocate General appearing for the defendants, on the basis of the substantial questions of law framed, has vehemently argued that the suit was barred by limitation and the learned first appellate court has misread and mis-appreciated the oral as well as documentary evidence. 6. Mr. Rajnish K. Lal, learned Advocate appearing for the plaintiffs, has supported the impugned judgment and decree dated 11.7.2003 passed by the learned first appellate court. 7. I have heard learned counsel for the parties and have also gone through the record carefully. 8. 6. Mr. Rajnish K. Lal, learned Advocate appearing for the plaintiffs, has supported the impugned judgment and decree dated 11.7.2003 passed by the learned first appellate court. 7. I have heard learned counsel for the parties and have also gone through the record carefully. 8. Since both the substantial questions of law are interlinked and interconnected, the same are taken together for determination to avoid repetition of discussion of evidence. 9. PW1, Govind Singh, has testified that they possessed the suit land after its purchase. They had raised an orchard over the suit land. Neither defendants nor any other person ever remained in possession of the suit land. They were maintaining the orchard. 10. PW2, Baldev Singh and PW3 Surinder Singh have corroborated the statement of PW1 Govind Singh. According to them, the plaintiffs remained in possession of the suit land and they had raised an orchard over it. The State Government never remained in possession of the suit land. 11. DW1, Om Parkash, deposed that the plaintiffs and proforma defendants had purchased half share of the land comprised in Khasra No. 539 and remaining half was purchased by one Jai Chand. In consolidation proceedings, the land comprised in Khasra No. 539 was assigned new Khasra Nos. 512, 513 and 514. The land comprised in Khasra Nos. 512 and 513 went to the share of the plaintiffs and proforma defendants and the land comprised in Khasra No. 514 was converted into “Shamlat” land and in lieu thereof, Subedar Jai Chand was given different land by the State. 12. According to jamabandies for the years 1936-37 Ext.P18, 1940-41 Ext.P17 and 1945-46, Ext. D3, the old Khasra number of the suit land was 539. Guro, Munshi etc. were recorded as owners of the suit land comprised in Khasra No. 539 measuring 11 Kanals 12 Marlas. According to jamabandi for the year 1955-56, Ext.D4, land comprised in Khasra No. 539 min was entered in the ownership of “Shamlat Taraf Raja Khassa” and in possession of Dhian Singh, Onkar Singh, Jaswant Singh and Govind Singh, i.e. plaintiffs and proforma defendants as non-occupancy tenants under Jai Chand, who was co-owner of half share of the land. In jamabandi of Missal Haqiayat Istemal for the year 1954-55, Ext.D-5, Khasra No. 539 min was assigned new Khasra No. 514 and the remaining land of Khasra No. 539 was assigned Khasra Nos. 512 and 513. In jamabandi of Missal Haqiayat Istemal for the year 1954-55, Ext.D-5, Khasra No. 539 min was assigned new Khasra No. 514 and the remaining land of Khasra No. 539 was assigned Khasra Nos. 512 and 513. The land comprised in Khasra No. 512 was entered in ownership and possession of the plaintiffs and proforma defendants and the land comprised in Khasra No. 513 measuring 5 Kanals 2 Marlas was entered in possession of the mortgagees. Though, later on in jamabandies for the years 1956-57 Ext. D6, 1965-66 Ext. D7, 1970-71 Ext. D8 and 1975-76 Ext. D9, the land comprised in Khasra No. 514 was recorded in ownership of the “Shamlat Taraf Raja Khassa” however in possession of the plaintiffs and proforma defendants. Subsequently, in jamabandi for the year 1983-84, Ext.D10, this entry qua Khasra No. 514 was changed. It was recorded in ownership of the State of Himachal Pradesh and in possession of bartandarans. Khasra No. 514 was also assigned new Khasra No. 1830 and the classification of the land was mentioned as “Charagah Darkhtan.” The same entry was repeated in jamabandies for the years 1989-1990 Ext. D11 and 1994-95 Ext. D12. 13. The classification of the land comprised in Khasra No. 514 was recorded as “Barani Ek Fasli” in the jamabandies for the years, 1954-55 Ext. D1, 1956-57 Ext. D6, 1965-66 Ext. D7, 1970-71 Ext. D8 and 1975-76 Ext. D9. The nature of the land was changed for the first time in the jamabandi for the year 1983-84, Ext.D10 from “Barani Ek Fasli” to “Charagah Darkhtan”. Thus, it is crystal clear that prior to settlement proceedings in the year 1983-84, the plaintiffs and proforma defendants were recorded in possession of the land comprised in Khasra No. 514 and the nature of the land was “Barani Ek Fasli” and in the jamabandi for the year 1970-71, Ext. D8 the classification of the land was entered as “Bagicha” (orchard). However, after settlement, the classification of the land comprised in Khasra No. 514 was shown as “Charagah Darkhtan” in the ownership of the State and in possession of the “Bartandarans.” 14. Guro, Munshi Ram, Jaswant Singh and Dharam Singh, sons of Mehtab Singh were owners-mortgagors of the suit land. They had mortgaged the suit land with possession in favour of the mortgagees. The mortgage was redeemed by the mortgagors. Guro, Munshi Ram, Jaswant Singh and Dharam Singh, sons of Mehtab Singh were owners-mortgagors of the suit land. They had mortgaged the suit land with possession in favour of the mortgagees. The mortgage was redeemed by the mortgagors. The land comprised in old Khasra No. 539 measuring 33 Kanals 5 Marlas was sold to the plaintiffs and proforma defendants and one Jai Chand. There is reference of mutation to this effect in the jamabandi for the year 1945-46, Ext. D3. Khasra No. 539 was subsequently converted into three new Khasra Nos. 512, 513 and 514. The land comprised in Khasra No. 512 measuring 16 Kanals 8 Marlas was recorded in possession of the plaintiffs and proforma defendants and land comprised in Khasra No. 513 measuring 5 Kanals 2 Marlas though recorded in the ownership of the plaintiffs and proforma defendants, but was shown in the possession of the mortgagees. The mortgage was redeemed vide mutation No. 1269 dated 7.3.1956 as per entry made in jamabandi for the year 1954-55, Ext. D5 and vide mutation No. 1109 dated 18.3.1952, as per jamabandi for the year 1945-46, Ext. D3, the entire land comprised in Khasra No. 539 measuring 33 Kanals 5 Marlas was purchased by Jai Chand to the extent of half share and remaining half was purchased by the plaintiffs and proforma defendants. 15. It has come on record that the possession of the plaintiffs and proforma defendants qua the suit land comprised in Khasra No. 514 from the year 1954-55 till 1975-76 shows that actually they were in possession of the suit land as co-owners. There was no plausible reason to record the suit land in the ownership of the State and in possession of the “Bartandarans”. The classification of the land could also not be changed from “Barani Ek Fasli” and “Bagicha” to “Charagah Darkhtan.” The plaintiffs have duly proved that they were in possession of the suit land. They had raised orchard there. Learned first appellate court has rightly come to the conclusion that change effected during consolidation proceedings qua nature of the land and then showing in settlement in possession of “Bartandarans” and in the ownership of the State was apparently wrong and without any justification. Moreover, entry has been changed without any order, that too, without hearing the plaintiffs. The suit was not barred by limitation. Moreover, entry has been changed without any order, that too, without hearing the plaintiffs. The suit was not barred by limitation. This Court in Shiam Singh vs. Chaman Lal, 2011 (Suppl.) Him. L.R. 2065 has held that the person can challenge the revenue entry when he feels aggrieved. This Court has held as under:- “13. Coming to substantial question of law No. 4, a reading of Section 46 of the HP. Land Revenue Act shows that if any person considers himself aggrieved as to any right of which he is in possession by an entry in a record-of-rights or in a periodical record, he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1963. 14. It is well settled that for a suit for declaration, referred to in Section 46, limitation begins to run not from the date of the entry affecting the right of the person concerned, but from the date when he feels aggrieved by the entry and it is the satisfaction of such person as to when does he feel aggrieved. Defendant cannot be heard to say that he (the plaintiff) felt aggrieved by the entry at some earlier point of time or when the entry was actually made. 15. Learned counsel for the appellants submitted that the plaintiffs-respondents were out of possession of the suit land and, hence, their suit was not covered by the provision of Section 46 of H.P. Land Revenue Act. Submission is misconceived. Section 46 does not speak of physical possession of the subject matter or the land with respect to the entry of which a person is aggrieved, but the right of the plaintiff. The person should be in possession of the right and not the land, with respect to the entry of which he is aggrieved. Predecessors-in-interest of the plaintiffs, namely Prem Singh, Kushal Singh and Nand Lal were the real brothers. They were recorded as joint tenants, though Nand Lal was being recorded in exclusive possession as Hissedaar (one of the co-sharers/co-tenants). 16. It is well settled proposition of law that possession of a co-sharer is the possession of all. A co-sharer in exclusive possession holds the property for himself and also on behalf of the co-sharers not in physical possession. They were recorded as joint tenants, though Nand Lal was being recorded in exclusive possession as Hissedaar (one of the co-sharers/co-tenants). 16. It is well settled proposition of law that possession of a co-sharer is the possession of all. A co-sharer in exclusive possession holds the property for himself and also on behalf of the co-sharers not in physical possession. Such a co-sharer is an agent of other co-sharers, who are out of possession, in regard to their shares in the joint property. In view of this legal position, plaintiffs are to be presumed to be co-sharers with the defendants. This is especially so when the defendants-appellants have not taken the plea of ouster of the plaintiffs-respondents. Question is answered accordingly.” 16. Consequently, in view of analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending applications, if any also stands disposed of. No order as to costs.