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2017 DIGILAW 1199 (HP)

Tara Chand v. Daulat Ram (Deceased)

2017-10-30

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. At the very outset, it has been brought to the notice of this Court that the appeal stands abated against respondent No.1- Daulat Ram, vide order, dated 5.5.2016. 2. By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned District Judge, Una, District Una, (H.P), in Civil Appeal No.48 of 2004, dated 3.5.2005, vide which, the learned lower Appellate Court has set aside the judgment and decree passed by the learned Civil Judge (Senior Division), Una, District Una, in Case No.73 of 2000, dated 30.6.2004. 3. Material facts necessary for adjudication of this Regular Second Appeal are that appellants/plaintiffs (hereinafter referred to as ‘plaintiffs’) maintained a suit for permanent injunction restraining the respondents/defendants (hereinafter referred to as ‘defendants’) from raising any type of construction or forcibly ousting the plaintiffs over the land measuring 0-01-69 hectares, bearing Khewat No.72 min, Khatauni No.161 min. Khasra No.1827, situated in village Ajnoli, Tehsil and District Una, (H.P) (hereinafter referred to as ‘suit land). As per the plaintiffs, suit land was in possession of the father of the plaintiffs as ‘Hissadar’ co-owner and father of the plaintiffs was having his ‘abadi’ over Khasra No.2190 and Khasra No.2192, was used as courtyard/’Bartan’. Khasra No.2192 was denoted by new Khasra No.1827 and defendants got deleted the name of the plaintiffs from the possessory column illegally in league with consolidation officials. The plaintiffs have installed water tank and stacked building material over the suit land. The possession of the plaintiffs was since forefathers. Thereafter, defendants started threatening the plaintiffs to take forcible possession of the suit land and also raising construction over the same, despite repeated requests, as made by the plaintiffs not to do so. 4. Defendants contested the suit by raising preliminary objections qua maintainability, cause of action and locus standi. On merits, they denied whole case of the plaintiffs by asserting that the plaintiffs have no concern of any kind with the suit land, which is exclusively owned and possessed by the defendants. 5. On the pleadings of parties, the learned trial Court framed following issues : “1. Whether plaintiffs are entitled to the relief of injunction, as prayed? OPP. 2. Whether suit is not maintainable in the present form? OPD. 3. Whether the plaintiffs have no cause of action? OPD. 4. 5. On the pleadings of parties, the learned trial Court framed following issues : “1. Whether plaintiffs are entitled to the relief of injunction, as prayed? OPP. 2. Whether suit is not maintainable in the present form? OPD. 3. Whether the plaintiffs have no cause of action? OPD. 4. Whether plaintiffs have no locus standi to file this suit ? OPD. 5. Whether suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD. 6. Relief .” 6. The learned trial Court after deciding Issue No.1 in affirmative, Issues No.2 to 5 in negative, decreed the suit. 7. Feeling aggrieved thereby defendants maintained first appeal before the learned District Judge, Una, District Una, (H.P), assailing the findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court set aside the findings of the learned Court below. Now, the appellants have maintained the present Regular Second Appeal, which was admitted for hearing on 14.7.2005 on the following substantial questions of law: “1. Whether learned District Judge below erred in law and facts in attaching presumption of truth as per provisions of Section 45 of the H.P. Land Revenue Act to the entries in Ex.P-3, more particularly having been made without there being any orders of the competent authority and contrary to the position as available in Ex.P-2, thereby vitiating the impugned judgment and decree ? 2. Whether there being no proof qua delivery of possession as per provisions of Section 32 of the Act, admittedly earlier possession being of plaintiffs, contrary view as taken by the learned District Judge below vitiated the impugned judgment and decree as there is complete misreading of Section 32 of the Act?” 8. Mr. Ajay Sharma, learned counsel appearing on behalf of the appellants has argued that Khasra No.2190 was ‘Gairmumkin abadi’ and Khasra No.2192 was ‘Barani Abal’ and in possession of the appellants-plaintiffs, so the judgment and decree passed by the learned lower Appellate Court is required to be set aside. 9. On the other hand, Mr. Mr. Ajay Sharma, learned counsel appearing on behalf of the appellants has argued that Khasra No.2190 was ‘Gairmumkin abadi’ and Khasra No.2192 was ‘Barani Abal’ and in possession of the appellants-plaintiffs, so the judgment and decree passed by the learned lower Appellate Court is required to be set aside. 9. On the other hand, Mr. N.K. Thakur, learned Senior Counsel appearing on behalf of respondents No.2 to 6 has strenuously argued that the land came in possession of the defendants in the consolidation proceedings and possession was delivered to the defendants and those proceedings attained finality, the suit is otherwise also not maintainable. To support his contention, he has also relied upon the judgment in 2016 (3) Supreme Court Cases 78, titled Damodar Lal vs. Sohan Devi and others. 10. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 11. To support its case, plaintiffs have examined PW-1, Tara Chand, who deposed that Khasra No.2190 and 2192, were in possession of his father as ‘Hissadar’ and Khasra No.2192, was being used as courtyard, which has now changed to Khasra No.1827. Their names have been deleted from the possessory column whereas they are in possession at the spot over this land where their water tank exists and construction material is also lying there. He has further stated that the defendants never took possession of the suit land. In his cross-examination, he has admitted that suit land was under consolidation in the year 1991-1992 and land was allotted, as per the scheme of consolidation. The land was given by consolidation officials to Daulat Ram etc. He has also stated that consolidation is over and denied that they have no concern with this land. He has also denied that the defendants are owners-in-possession of the land and they are not in possession over the suit land. The defendant Som Nath, while appearing in the witness box has deposed that the suit land is exclusively owned and possessed by him and other defendants and plaintiffs have no concern either proprietary or possessory. In his cross-examination, he has stated that he knows father of the plaintiffs, Munshi Ram and denied that he was in possession as ‘Hissdar’ over the suit land. He has stated that consolidation occurred in the village, but denied that there is ‘abadi’ and courtyard over the suit land. In his cross-examination, he has stated that he knows father of the plaintiffs, Munshi Ram and denied that he was in possession as ‘Hissdar’ over the suit land. He has stated that consolidation occurred in the village, but denied that there is ‘abadi’ and courtyard over the suit land. He has denied that they got incorporated entries in league with the consolidation officials wrongly. He further stated that possession of the suit land was not delivered in their presence and claimed that they are coming in possession over the suit land since ancestors time. He has further admitted that the parties are maintaining the same position regarding possession before the consolidation. In his cross-examination, he has stated that possession of the land was not handed over in his presence, but the documents on record shows that the Misal Hakiat was prepared after holdings were consolidated and re-delivered after re-partition among the estate holders, so even the possession was not handed over in the presence of Som Nath, it deem to have been delivered on the basis of Missal Hakiat. Admittedly, Khasra No.2192, during the course of consolidation stood allotted to the defendants as is clear from Misal Hakiat for the year 1991-1992, Ex.P-3. In these circumstances, the onus was upon the plaintiffs to lead cogent and reliable evidence so as to prove that possession of the land comprised in Khasra No.2192, was not delivered, as per scheme of the consolidation in favour of the defendants. There is always presumption attached to the acts done in discharge of official duty and entry in latest jamabandi, which has been prepared during the course of consolidation carries a stronger presumption under Section 45 of the H.P. Land Revenue Act and the party challenging the validity of such an entry must lead reliable evidence so as to rebut such presumption. The evidence led by the plaintiffs regarding their exclusive possession over the suit land is not of such a high quality so as to lead to the irresistible conclusion that it is the plaintiffs, who are in possession of the suit land. The testimony of Tara Chand, who has tendered in evidence his affidavit, has stated that Khasra No.2192, is being used as Sehan/courtyard. The defendants got the name of plaintiffs deleted from the possessory column in collusion with consolidation staff. Now, the plaintiffs have constructed water tank over this khasra number. The testimony of Tara Chand, who has tendered in evidence his affidavit, has stated that Khasra No.2192, is being used as Sehan/courtyard. The defendants got the name of plaintiffs deleted from the possessory column in collusion with consolidation staff. Now, the plaintiffs have constructed water tank over this khasra number. However, in cross-examination, the plaintiff has admitted that the suit land was under consolidation in the year 1991-1992 and land was allotted, as per the scheme of consolidation. The plaintiff made a vital admission that the suit land was allotted in favour of defendant Daulat Ram etc. and consolidation operation is complete. This clearly shows that defendants are fully aware regarding the manner in which the consolidation was done and said consolidation proceedings are complete. The consolidation proceedings are complete and revenue record is prepared and possessions are delivered to the holders, as per the scheme of the consolidation. There is no evidence to conclude that there was a courtyard of the plaintiffs over the suit land. The plaintiff while appearing in the witness box has admitted that allotment of the land was in favour of the defendants. In these circumstances, this Court finds that the findings recorded by the learned lower Appellate Court cannot be said to be perverse, so substantial question of law No.1, is decided accordingly holding that the presumption of truth is attached to the Misal Hakiat and delivery of possession on the basis of Misal Hakiat, prepared after the consolidation in the year 1991-1992. The learned lower Appellate Court has not committed any illegality in relying upon the Misal Hakiat. So far as substantial question of law No.2 is concerned, it is admitted case that before consolidation, possession of all the parties looses his significance after the consolidation proceedings, the estate holders were delivered the possession after re-partition the entire estate on the basis of Misal Hakiat, so it cannot be said that the possession of land remained with the plaintiffs. 12. Hon’ble Apex Court in 2016 (3) Supreme Court Cases 78, titled Damodar Lal vs. Sohan Devi and others, wherein it has been held as under : “12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs 1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on reappreciation of the evidence and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man’s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.” 13. Applying the ratio of law to the facts and circumstances of the present case, it is clear that the findings arrived at by the learned lower Appellate Court are just, reasoned and after appreciating the evidence, which has come on record to its true perspective and law has been applied correctly. Hence, needs no interference by this Court. 14. In view of the above discussion, the appeal of the appellants is without merit, deserves dismissal and is accordingly dismissed. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending applications, if any, shall also stands disposed of.