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2016 DIGILAW 753 (HP)

Duni Chand v. Shakti Chand

2016-05-11

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The plaintiff Shakti Chand instituted a suit for permanent prohibitory injunction and for restraining the defendant from changing the nature of the suit land. The suit of the plaintiff came to be decreed by the learned trial Court. The defendant standing aggrieved by the decree rendered in favour of the plaintiff by the learned trial Court instituted an appeal therefrom before the learned first appellate Court. The learned first appellate court rendered a judgement and decree in affirmation to the judgement and decree rendered by the learned trial Court. The defendant is aggrieved by the concurrently recorded judgements and decrees of both the Courts below. He has instituted the second appeal before this Court for seeking reversal of the findings recorded therein. 2. The facts necessary for rendering a decision on the instant appeal are that plaintiff filed a suit in the Court below to the effect that he is owner in possession of the suit land comprised in Khata No. 31 min, Khatauni No.51 min, Khasra No. 305/92, measuring 13 marlas, situated in Tika Chhal Buhla, Tappa Jhaniara, Tehsil and District Hamirpur, H.P. as shown in the copy of Jambandi, Ext.PA, for the year 1993-94 on record. He has purchased the suit land from his father out of Khasra No. 92 and new Khasra No. 92/7 was carved out of the same. The present Khasra Number of Khasra No. 92/7 is 305/92. It is averred that he is now coming in possession of the suit land measuring 13 marlas, as owner but the defendant appellant Duni Chand is stranger to the same, who was threatening to raise construction forcibly in the suit land. 3. The suit of the plaintiff was resisted by defendant on the ground of plaintiff is neither the owner nor in possession of the suit land and he has no cause of action to file the present suit and the plaintiff is estopped from filing the suit by his own act and conduct. On merits it is averred that the suit land is coming in the possession of the defendant/appellant since the year 1975-76 and it is claimed that he has become owner of the suit land by way of adverse possession. So it is prayed that the suit of the plaintiff be dismissed. 4. On merits it is averred that the suit land is coming in the possession of the defendant/appellant since the year 1975-76 and it is claimed that he has become owner of the suit land by way of adverse possession. So it is prayed that the suit of the plaintiff be dismissed. 4. In the replication filed on behalf of the plaintiff the averments as contained in the plaint were reiterated and those of the written statement contrary to the plaint were refuted. 5. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. 2. Whether the suit is not maintainable? OPD. 3. Whether the plaintiff has got no cause of action to file the present suit? OPD. 4. Whether the suit bad for non-joinder of necessary parties? OPD. 5. Whether the plaintiff is estopped for file the suit by his act and conduct as well as the act and conduct of Ran Singh, as alleged? OPD. 6. Whether the defendant has become owner of the suit land by way of adverse possession as alleged? OPD. 7. Relief. 6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff besides the learned First Appellate Court dismissed the appeal preferred therefrom before it by the defendant. 7. Now the defendant has instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 1.07.2007, this Court admitted the appeal on the hereinafter extracted substantial questions of law:- 1. Whether the learned Courts below have misconstrued and misinterpreted the Sale Deeds Ext.P-1 and Ext.D-1 in coming to the conclusion that the respondent is in possession of the suit land? 2. Whether the learned Courts below have not considered the material evidence mutation No. 86, Ext.D-4 and has erred in decreeing the suit of the respondent? Substantial questions of law No. 1 and 2. 8. 2. Whether the learned Courts below have not considered the material evidence mutation No. 86, Ext.D-4 and has erred in decreeing the suit of the respondent? Substantial questions of law No. 1 and 2. 8. The main plank of the contention addressed before this Court by the counsel for the defendant appellant for seeking reversal of the concurrently recorded findings by both the Courts below rests upon sale deeds Ext.P-1 and Ext.D-1 underscoring the factum of the defendant appellant acquiring title thereunder qua khasra No. 170. He also rests his contention upon Ext.D-4 embodying an order of the revenue officer concerned who on anvil of the aforesaid referred sale deeds executed in 1969 proceeded to in the very same year attest in favour of the defendant appellant mutation qua Khasra No. 170. Khasra No. 170 is the contentious khasra number inter se the parties at lis. It assumes significance in the face of a palpable display in paragraph 15 of the judgement of the learned trial Court and paragraph 25 of the judgement of the learned first appellate Court of it alongwith Khasra Nos.171 and 172 constituting the hitherto or erstwhile khasra numbers of the extant khasra number 305/92. Moreover, earlier to an ascription of Khasra No.305/92 qua the suit land by the revenue authorities concerned, it stood encompassed in khasra No. 92 wherein stood embodied an area of 2 kanals 16 marlas subsequently on conclusion of consolidation proceedings whichy occurred in the area whereat the suit land is located it stood ascribed the extant khasra no. 305/92 besides the area of erstwhile khasra No.92 wherein Khasra No.305/92 stood encompassed stood reduced from its erstwhile area of 2 kanals and 16 marlas to a meagre area of 13 marlas which latter area is the area borne on Khasra No.305/92. The aforesaid factum of the suit land initially standing assigned khasra No. 170, 171 and 172 from amongst which khasra number title qua Khasra No. 170 stood vested in the defendant appellant under sale deeds Ext.P-1 and D-1 whereupon it alongwith khasra Nos. 171 and 172 carried an area of 2 kanals and 16 marlas whereas the area of the subsequently assigned Khasra No. 305/92 qua the suit land standing diminished to 13 marlas from the area comprised in the erstwhile Khasra No. 92 wherefrom it stood carved, stands uncontroverted. 9. 171 and 172 carried an area of 2 kanals and 16 marlas whereas the area of the subsequently assigned Khasra No. 305/92 qua the suit land standing diminished to 13 marlas from the area comprised in the erstwhile Khasra No. 92 wherefrom it stood carved, stands uncontroverted. 9. The counsel for the defendant appellant concerts with much vigour of acquisition of title by the latter under sale deed comprised in Ext.D-1 in consonance therewith mutation stood attested qua it in his favour facilitates an inference of Khasra No. 305/92 also carrying thereon the area embodied in Khasra No. 170 hence when qua the latter khasra number absolute title stood acquired by him under the apposite sale deeds executed in his favour by its lawful owner warrants an inference from this Court of his holding title qua the suit land especially when it stands carved from the erstwhile Khasra number 92 wherein even Khasra No. 170 stood encompassed. However, the aforesaid contention cannot gain any succor predominantly with this Court, holding of Khasra No. 170 alongwith Khasra Nos. 171 and 172 all together collectively forming a part of the hitherto khasra number 92 which carried therein an area wherefrom the suit land as extantly stands ascribed Khasra No. 305/92 stands carved. Moreover, on conclusion of the consolidation proceedings in the area whereat the suit land is located whereupon the apposite erstwhile khasra No.92 on its standing partitioned, of khasra No. 305/92 standing carved therefrom whereupon the suit land stands located besides thereupon the area of erstwhile pre consolidation Khasra No.92 from its hitherto area of 2 kanals 16 marlas stands reduced to an area of 13 marlas negates the contention of the learned counsel for the appellant defendant of yet or as of now khasra No. 170 whereto title stood acquired by the defendant appellant under the apposite sale deed still continuing to form a part of or its extantly standing amalgamated in the suit land especially when the area of Khasra No.305/92 stands drastically reduced to 13 marlas from its erstwhile pre consolidation amalgamated area of 2 kanals 16 marlas whereat it bore Khasra No.92 wherein besides the area of the suit land it also carried thereon the area of Khasra No. 170. A perusal of the apposite record comprised in Ext.D-4 unravels of khasra No. 170 holding 15 marlas whereas with the suit land carrying an area of 13 marlas necessarily when a drastic divergence in the area carried by Khasra No. 170 vis-a-vis the area carried by Khasra No. 305/92 is palpably discernable, as a necessary sequitur the ensuing inference is of with an area of 15 marlas carried on Khasra No. 170 title whereto stood acquired by the defendant under a lawfully executed sale deed standing never on conclusion of consolidation proceedings which occurred whereat it stands located standing amalgamated in the suit land. The inference aforesaid of occurrence of consolidation in the area whereat the suit land is located when stands uncontroverted begets a further sequel of the area borne on Khasra No. 170 inasmuch as its carrying an area of 15 marlas on completion of consolidation proceedings in the Mohal whereat it is located standing assigned khasra number/numbers other than khasra No. 305/92 mutation whereof qua the latter khasra number stood on completion of consolidation proceedings attested in favour of the defendant appellant of hence also on a post consolidation khasra number standing assigned to the area comprised in the pre consolidation Khasra No. 170 its standing allotted to the defendant appellant. Succor to the aforesaid inference is acquired by the factum of the defendant in his cross-examination unequivocally voicing the factum of consolidation proceedings standing initiated in the Mohal whereat the suit land is located. A further admission occurs in his cross-examination of Khasra Nos. 170, 171 and 172 standing ascribed pre consolidation khasra number 92. Succor to the aforesaid inference is acquired by the factum of the defendant in his cross-examination unequivocally voicing the factum of consolidation proceedings standing initiated in the Mohal whereat the suit land is located. A further admission occurs in his cross-examination of Khasra Nos. 170, 171 and 172 standing ascribed pre consolidation khasra number 92. Also there occurs an admission in his cross-examination of on completion of consolidation proceeding launched in the area whereat the suit land is located, Khasra No. 92 which hitherto carried within it Khasra Nos.170, 171, 172 standing assigned Khasra No.305/92 besides with his admitting of besides Khasra No. 305/92 as stands carved from khasra No. 92 other khasra numbers also standing carved therefrom, construed in coagulation with an admission by him of the aforesaid khasra No.305/92 standing allotted to the predecessor in interest of the plaintiff/respondent apparently dislodges the assertion of title by him to the suit land anvilled on the strength of his acquiring title thereto under lawfully executed sale deeds qua khasra No. 170 which previously or in the pre consolidation era stood embodied besides stood amalgamated in khasra No. 92 alongwith Khasra Nos. 171 and 172 to be an exercise in futility its holding no strength and vigour in law. Given the aforesaid apparent display in the cross-examination of the defendant appellant coagulated with the inference aforesaid khasra No. 92 holding therein also khasra No. 170 standing in the post consolidation era ascribed khasra No. 305/92 and of its carrying an area lesser than the one borne by khasra No. 170 nurses an inference of rather hence the defendant appellant on conclusion of consolidation proceedings standing allotted an area equivalent to the one constituted in the erstwhile khasra No. 170. The aforesaid inference garners vigour and command from the fact of post consolidation Khasra numbers standing ascribed to the suit land besides obviously to the pre consolidation Khasra No. 170 whereto defendant appellant holds title when for lack of an appropriate legal onslaught constituted by the appellant defendant to the proceedings drawn on conclusion of consolidation in the area whereat the apposite Khasra numbers stand located evinces an inference of his acquiescing to the ascription of the extant Khasra number to suit land besides ascription of a post consolidation khasra number to the erstwhile Khasra No. 170. As a natural corollary when conclusivity hence when stood fastened to the aforesaid post consolidation ascription of Khasra Numbers to the suit land besides to Khasra No. 170 the defendant appellant is estopped to contend of his in any capacity holding title to the suit land predominantly when mutation qua it stands attested in favour of the predecessor in interest of the plaintiff/respondent. It appears that he merely in the garb of occurrence of an ascription of Khasra No.170 in the pre consolidation records qua which Khasra No. under the apposite sale deed he acquired title has untenably staked a claim of Khasra No. 305/92 also embodying therein the area constituted in the aforesaid khasra No. 170 whereas for reasons aforesaid given the gross reduction in the area of khasra No. 92 wherein both the suit land besides khasra number 170 stood embodied vis-a-vis khasra number 305/92 fastens sinew to an apt inference of even khasra no. 170 standing ascribed a post consolidation khasra number besides the area comprised therein being equivalent to the area reflected qua it in the apposite sale deed executed qua it besides of its standing allotted to the defendant appellant especially when an inference of allotment thereof to the defendant appellant on conclusion of the apposite consolidation proceedings for reasons aforesaid is garnerable from his omitting to launch at the apposite stage an appropriate legal onslaught upon it. Imperatively this Court holds with formidability of the main plank of the submission of the learned counsel for the defendant in dislodging the concurrently recorded findings in the impugned judgements of both the Courts below is bereft of any force. Lastly the learned counsel for the defendant has contended of the suit land though contended by the plaintiff respondent to be owned by him as its absolute owner thereof under a registered deed of conveyance executed in his favour by his predecessor in interest yet with their occurring a denial in the written statement of the defendant appellant of the plaintiff’s holding title as absolute owner qua the suit land under a lawfully executed deed of conveyance in his favour qua it by his predecessor in interest enjoined the learned trial Court to strike an apposite issue whereas its omitting to strike an apposite issue has sequelled the ouster of claim to title by the defendant appellant qua khasra No. 305/92. However, the aforesaid submission is extremely feeble and frail as the effect of omission if any by the learned trial Court to strike an issue qua the propagation by the plaintiff of his holding absolute title as owner qua the suit land especially when the said assertion stood pointedly denied by the defendant appellant in his written statement, is of its being not fatal, preeminently when the defendant appellant was not taken by surprise qua the factum aforesaid rather a perusal of the entire evidence as adduced on record portrays of the plaintiff respondent herein in his examination in chief in substantiation of the apposite averments constituted in the plaint deposing in corroboration thereto besides the counsel for the defendant appellant subjecting him to cross –examination qua the facet aforesaid spurs an inference of rather the parties at contest being aware of their respective cases besides when they proceeded to prove besides negate their respective assertions constituted in their respective pleadings, it would be grossly unjust for this Court to for a mere omission on the part of the learned trial Court to strike an apposite issue qua the plaintiff acquiring title to the suit land on the strength of his predecessor in interest executing qua it a deed of conveyance in his favour, proceed to strike the aforesaid apposite issue and order after quashing the impugned rendition, for the relegation of the lis to the learned trial Court for receiving evidence thereupon. Furthermore, the propagation by the plaintiff respondent in his examination in chief of his acquiring title to the suit land from his predecessor in interest under a registered deed of conveyance stood concerted to be shattered by the counsel for the defendant by subjecting him to cross-examination. However, during the course of the counsel for the defendant appellant subjecting the plaintiff respondent to cross-examination qua the facet aforesaid he has merely put a suggestion to him qua whether his possessing the apposite registered deed of conveyance, suggestion whereof stood replied in the affirmative by the plaintiff. A reading of the cross-examination of the plaintiff also unfolds of the plaintiff evincing his willingness to adduce the apposite sale deed whereupon an inference spurs of his displaying the factum of his holding it. A reading of the cross-examination of the plaintiff also unfolds of the plaintiff evincing his willingness to adduce the apposite sale deed whereupon an inference spurs of his displaying the factum of his holding it. Even when the aforesaid elicitations occur in the cross-examination of the plaintiff, the defendant omitted to seek permission of the learned trial Court for re-examination of PW-1 qua the apposite fact of his being ordered to produce the apposite sale deed before the learned trial Court for succoring his communication in his examination of his holding on its anvil title to the suit land. Omission on the part of the learned counsel for the defendant to at the apposite stage make an endeavour to elicit from the plaintiff under an order of the learned trial Court the adduction of the apposite sale deed from the plaintiff estops now the counsel for the defendant to contend of either the source of entry in Ext.P-1 recording therein the plaintiff respondent to be owner of the suit land being bereft of any merit or reverence or its recording therein being not in consonance with any sale deed qua it executed in favour of the plaintiff respondent by his predecessor in interest besides also estops him to now contend at this belated stage of his holding title in usurpation of title to the suit land of the plaintiff respondent. 10. At the fag end of the arguments learned counsel for the defendant has placed reliance upon a judgement of the apex Court titled as State of H.P. Vs. Keshav Ram and others (1996) 11 SCC 257 wherein the Hon’ble Apex Court has propounded the view that when the source of an entry existing in the revenue record is not upsurging, it would dispel the authenticity of the entry. Keshav Ram and others (1996) 11 SCC 257 wherein the Hon’ble Apex Court has propounded the view that when the source of an entry existing in the revenue record is not upsurging, it would dispel the authenticity of the entry. However the aforesaid reliance by the learned counsel on the judgement of the Apex Court is inapt, given the aforesaid discussion of the plaintiff by echoing in his examination in chief in substantiation qua the factum of his acquiring title to suit land under a registered deed of conveyance executed in his favour by his predecessor in interest which factum stood concerted to be repulsed by the defendant in a most desultory and mechanical manner beside despite the plaintiff negating the apposite suggestion of his not holding the apposite sale deed, the defendant omitting to elicit an order from the learned trial Court warranting the plaintiff to produce it before the learned trial Court garners an inference of the defendant appellant abandoning or waving his right to contest the authenticity of the source of entry denoted in Ext.P-1 also an apt inference of his acquiescing to the aforesaid entry stands aroused. 11. The result of the above discussion is that the appeal preferred by the defendant/appellant is dismissed and the substantial questions of law are answered against the defendant/appellant. The judgements and decrees rendered by the both the Courts below are maintained and affirmed. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All pending applications also stand disposed of accordingly. Records be sent back forthwith.