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2016 DIGILAW 336 (HP)

Kehar Singh v. Nimo Devi

2016-03-28

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 31.3.1999 rendered by the learned Additional District Judge-II, Kangra at Dharamshala, in Civil Appeal No. 27/P/XIII/98. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the predecessor –in-interest of the respondents/plaintiffs, namely, Ajudhia Dass (hereinafter referred to as the ‘plaintiff’ for convenience sake) filed a suit for permanent injunction and in the alternative suit for possession against the appellants/defendants (hereinafter referred to as the ‘defendants’ for convenience sake). According to the plaintiff, he along with proforma defendants was entered in the ownership of suit land comprised in Khata No.27, Khatauni No.168, Khasra Nos. 723 and 724, Kita 2, measuring 0-00-27 hectares as per copy of Intkhab Misal Hakiat Jamabandi for the year 1990-91, situated in Mohal Kana Subhan, Mazua Thural, Tehsil Palampur, District Kangra, H.P.. The plaintiff is not bound by the possession of the defendants. The defendants have no right to cause any interference in the suit land as the suit land is in the actual cultivating possession of the plaintiff and the entries, existing in the Intkhab Misal Hakiat Bandobast Jadid in the names of defendants as ‘Dabedar Tawadla’ as is evident from the column of possession, are merely paper entries and result of fraud and the defendants have got the same in their favour entered after collusion with the revenue staff. The defendants have started collecting construction material on the suit land with a purpose to raise construction. It is in these circumstances, the plaintiff has filed the suit. 3. The suit was contested by the defendants. According to the defendants, the revenue record shows the exact position of the suit land and the claim of the plaintiff is absolutely wrong, incorrect and hence denied. The plaintiff was well aware of the possession of the defendants over the suit land and also the entries of the revenue record and in case the plaintiff denies the ‘Tawadla’ in that case the defendants have become owners of the suit land by way of long, uninterrupted, open and hostile possession which has matured into adverse possession. 4. Replication was filed by the plaintiff. 5. Learned trial court framed issues on 24.3.1994 and one additional issues on 22.3.1996 and dismissed the suit of the plaintiff vide judgment and decree dated 22.12.1997. 4. Replication was filed by the plaintiff. 5. Learned trial court framed issues on 24.3.1994 and one additional issues on 22.3.1996 and dismissed the suit of the plaintiff vide judgment and decree dated 22.12.1997. The defendants feeling aggrieved by the judgment and decree dated 22.12.1997 preferred an appeal before the learned Additional District Judge-II, Kangra at Dharamshala, who allowed the same vide judgment and decree dated 31.3.1999 and decreed the suit of the plaintiff, as prayed for. Hence, the present Regular Second Appeal. 6. The regular second appeal was admitted on following substantial questions of law on 8.11.2007:- 1 Whether document, Ext.DW1/A stands misread and mis-appreciated by learned Addl. Distt. Judge blow, thereby vitiating the impugned judgment and decree? 2 Whether presumption of truth is available to the longstanding revenue entries under Section 45 of the H.P. Land Revenue Act, the same having not been rebutted by plaintiff, despite that judgment and decree as passed by first appellate court below stand vitiated and liable to be set aside? 7. Mr. Ajay Sharma, Advocate, on the basis of substantial questions of law framed, has vehemently argued that the document, Ext.DW1/A has been misread as well as misappreciated by the learned Additional District Judge. He then contended that the revenue entries were caused in favour of the defendants and the same have not been rebutted by the plaintiff. 8. Mr. Neeraj Gupta, Advocate, has supported the impugned judgment and decree dated 31.3.1999 passed by the learned Additional District Judge. 9. I have heard learned counsel for the parties and have gone through the records carefully. 10. Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence. 11. PW1, Ajudhiya Dass, testified that he never exchanged the land with the defendants. He further testified that in the year 1991, the defendants had started raising construction in the suit land. 12. PW2, Duni Chand, deposed that the defendants wanted to raise construction on the suit land as the revenue record for the year 1975-76 shows that there are ‘gair mumkin’ shops. 12. DW1, Kehar Singh, deposed that he was in possession of the suit land since 1898 and elder brother of his father had constructed shops and he is in possession since the time of his father. The defendant had also filed civil suit in the year 1958. 12. DW1, Kehar Singh, deposed that he was in possession of the suit land since 1898 and elder brother of his father had constructed shops and he is in possession since the time of his father. The defendant had also filed civil suit in the year 1958. 13. DW2, Jai Kishan deposed that earlier there were ‘kachha’ shops in the suit land and now there are only ‘pucca’ walls in the suit land, which were constructed by Kehar Singh. 14. This is the oral evidence led by the parties. 15. Ext.P-1 is the copy of jamabandi for the year 1990-91. According to this revenue entry, defendants No. 1 to 4 were in possession of the suit land comprised in Khasra Nos. 723 and 724 measuring 0-00-27 hectares as ‘Dabedar Tawadla’. In the column of ownership, plaintiff Ajudhyia Dass and proforma defendants were recorded to be joint owners of the suit land to the extent of 1/3rd share each. There are ‘gair mukmin’ shops on each Khasra Nos. 723 and 724. Similar are the entries in Ext.D1, jamabandi for the year 1990-91 and Ext.D2, jamabandi for the year 1975-76. Defendants No. 1 to 4 are recorded to be in possession of the suit land as ‘Dabedar Tawadla’. The defendants have filed on record copy of goswara revenue, Ext. DW1/A. According to DW1, Kehar Singh, the entry of exchange is continuing for long and he did not know if the exchange had taken place at the time of his father or his uncle. The defendants have failed to prove that any such exchange has taken place with the plaintiff or his predecessor-ininterest. The defendant, Kehar Singh while appearing as DW1 has categorically admitted that he has no knowledge about any such exchange having taken place with the plaintiff and proforma defendants or their predecessor-in-interest. According to him, earlier the entry of exchange existed in the name of his uncle, thereafter in the name of his father and now in his name along with defendants No. 2 to 4. It was for the defendants to prove the correctness of the entry, i.e. ‘Dabedar Tawadla’. The plaintiff has categorically denied any such exchange of land with the defendants. 16. As far as plea of adverse possession raised by the defendants is concerned, defendants have failed to prove basic ingredients of adverse possession. Defendants have not pleaded exact date of commencement of adverse possession. The plaintiff has categorically denied any such exchange of land with the defendants. 16. As far as plea of adverse possession raised by the defendants is concerned, defendants have failed to prove basic ingredients of adverse possession. Defendants have not pleaded exact date of commencement of adverse possession. In fact, the defendants were presuming the suit land to be their own. The learned Additional District Judge has correctly appreciated the document, Ext. DW1/A, which does not show the land to which it pertains. The plaintiff has rebutted the revenue entries existing in the name of the defendants. The defendants have not produced any old record to strengthen the plea that the plaintiff has exchanged the land with the defendants. Learned Additional District Judge has correctly appreciated the oral as well as documentary evidence on record. Both the substantial questions of law are answered accordingly. 17. Accordingly, in view of the discussions and analysis made hereinabove, there is no merit in the regular second appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.