Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1220 (HP)

Biasan Devi v. Sarup Chand

2017-11-01

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. 1. By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned District Judge, Kangra at Dharamshala, in Civil Appeal No.93-P/XIII-2002, dated 01.01.2004, vide which, the learned lower Appellate Court has affirmed the judgment and decree passed by the then learned Sub Judge 1st Class, Court No. II, Palampur, District Kangra, in Civil Suit No.66 of 1994, dated 20.6.2002. 2. Material facts necessary for adjudication of this Regular Second Appeal are that respondent/plaintiff (hereinafter referred to as ‘plaintiff’) maintained a suit for declaration against the appellant/defendant (hereinafter referred to as ‘defendant’) alleging that plaintiff is owner-in-possession of land comprising in Khata No.122, Khatauni No.168, Khasra No.541/377, 384, 540/377, 386, Kita 4, land measuring 1-06-64 Hect. situated in Mohal Boda Uperla, Mauza Daroh, Tehsil Palampur, District Kangra (H.P) (hereinafter referred to as ‘suit land’). As per the plaintiff, the order of Settlement Officer, Kangra Division at Dharamshala in Missal No.28/91/80, dated 9.12.1991, maintained by the defendant and mutation No.153, whereby Settlement Officer, Kangra Division at Dharamshala, in the absence of plaintiff has allotted part of the land of Khasra No.384 and 386 i.e. 384/1, 384/2 and 386/1, total land measuring 0-02-69 Hects. situated in Mohal Boda Uperla, Mauza Daroh, Tehsil Palampur, District Kangra, is wrong, illegal, null and void and as such, the same is liable to be set aside with consequential relief of permanent prohibitory injunction restraining the defendant from taking forcible possession, raising any structure or interfering in any manner, whatsoever over the suit land. Further, suit land is owned and possessed by the plaintiff from Polo Ram son of Giga Ram through registered sale deed. After the purchase, plaintiff is in peaceful possession of the suit land and defendant has no right, title or interest. Defendant in connivance with revenue staff maintained an application on 12.8.1991 before Settlement Officer, Kangra Division at Dharamshala, for correction, in which plaintiff was not party. The said application was decided on 9.12.1991 in absence of the plaintiff. The Settlement Officer, Kangra Division at Dharamshala, has not served any notice upon the plaintiff without affording any opportunity to the plaintiff and allowed the application of defendant illegally and wrongfully whereby the Settlement Officer, has ordered to transfer part of suit land comprised in Khasra No.384/1, 384/2 and 386/1 (Kita 3) land measuring 0-02-69 Hects. The Settlement Officer, Kangra Division at Dharamshala, has not served any notice upon the plaintiff without affording any opportunity to the plaintiff and allowed the application of defendant illegally and wrongfully whereby the Settlement Officer, has ordered to transfer part of suit land comprised in Khasra No.384/1, 384/2 and 386/1 (Kita 3) land measuring 0-02-69 Hects. in the name of defendant and on the basis of said order, mutation No.153, was attested in favour of the defendant. In the month of June, 1993, defendant has started interference in the suit land and threatened to take forcible possession of the same, on the basis of said illegal order passed by the Settlement Officer, dated 9.12.1991. 3. Defendant contested and resisted the suit by raising preliminary objections qua locus standi, estoppel, cause of action and maintainability. On merits, defendant claimed that land comprised in Khasra No.384/1, 384/2 and 386/1 infact was part and parcel of her owned and possessed land of Khasra No.385, during settlement was assigned Khasra No.383. In the settlement, her land was wrongly merged in Khasra No.384 and 386 and area of her land was decreased. After demarcation, defendant maintained an application for correction before the Settlement Officer, Dharamshala, and the same was allowed, vide order, dated 9.12.1991. The plaintiff was party to the application and the said application was decided in presence of plaintiff. The plaintiff was duly served and sufficient opportunity was afforded to him to defend himself. Defendant is in possession of the suit land, hence question of threatening to take forcible possession does not arise. 4. On the pleadings of parties, the learned trial Court framed following issues : “1. Whether the plaintiff is owner-in-possession of the suit land, as alleged ? OPP. 2. Whether the order of the Settlement Officer Kangra dated 9.12.1991 is wrong, null and void, as alleged ? OPP. 3. Whether the mutation No.153 attested on the order of Settlement Officer, is null and void, as alleged ? OPP 4. Whether the plaintiff is entitled to the relief of Permanent Prohibitory Injunction against the defendant, as alleged ? OPP. 5. Whether the plaintiff has no locus standi to file the suit ? OPD. 6. Whether the plaintiff is estopped by his act and conduct from filing the suit ? OPD. 7. Whether the plaintiff has no cause of action ? OPD. 8. OPP. 5. Whether the plaintiff has no locus standi to file the suit ? OPD. 6. Whether the plaintiff is estopped by his act and conduct from filing the suit ? OPD. 7. Whether the plaintiff has no cause of action ? OPD. 8. Whether the suit is not maintainable in the present form ? OPD. 9. Whether the land in Khasra No.384/1, 384/2 and 386/1 measuring 0-02-69 Hects. was part of Khasra No.385 corresponding to present Khasra No.383 and same was wrongly merged in Khasra No.384 and 386 during settlement, as alleged ? OPD. 10. Relief”. 5. The learned trial Court after deciding Issues No.1 to 4 in affirmative, Issues No.5 to 9 in negative, decreed the suit. 6. Feeling aggrieved thereby the defendant maintained first appeal before the learned District Judge, Kangra at Dharamshala, 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 affirmed the findings of the learned Court below. Now, the appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 13.7.2004 on the following substantial questions of law: “1. Whether the suit filed by the plaintiff/respondent was barred by limitation ? 2. Whether the suit of the plaintiff was not maintainable on his failure to seek remedies available to him under the H.P. Land Revenue Act ? 3. Whether the two Courts below have misread and mis-appreciated the documentary evidence Ex.DW1/A, P-5, P-7 and P-8 ?” 7. Mr. Ajay Sharma, learned counsel appearing on behalf of the appellant has argued that the judgments and decrees passed by the learned Courts below are wrong, as the learned Courts below has not relied upon the report of Local Commissioner. He has argued that land of the defendant was decreased and that was the reason Settlement Officer, passed the order. The learned Courts below have committed illegality in decreeing the suit against the defendant. 8. On the other hand, Mr. G.D. Verma, learned Senior Counsel appearing on behalf of the respondent has strenuously argued that there is no illegality and infirmity in the judgments and decrees passed by the learned Courts below and so, no interference is called for. The learned Courts below have committed illegality in decreeing the suit against the defendant. 8. On the other hand, Mr. G.D. Verma, learned Senior Counsel appearing on behalf of the respondent has strenuously argued that there is no illegality and infirmity in the judgments and decrees passed by the learned Courts below and so, no interference is called for. He has argued that plaintiff was not party before the Revenue authorities, where correction of revenue entry was passed and so, the suit was filed against the illegal order of Revenue authorities. He has further argued that land of the defendant has not decreased and land was allotted, as per value of the land. In rebuttal, learned counsel appearing on behalf of the appellant has argued that as the land of defendant has decreased, which fact is not noted by the learned Courts below and so, the appeal may be allowed. 9. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 10. To substantiate its case, plaintiff himself as PW-1, deposed that he purchased the land from Polo Ram through registered sale deed and Settlement Officer without issuing any notice to him has transferred part of the suit land in favour of the defendant, which is totally wrong. He has denied the case of defendant that Kanungo has recorded his statement on the spot and has not raised any objection at the time of visit of Kanungo. He has also deposed that no notice from Settlement Officer, was given to him in the correction application filed by the defendant. PW-2 Polo Ram, has deposed that he transferred the land by way of registered sale deed, Ex.P-1 and delivered the possession of suit land at the time of sale. In his cross-examination, he has deposed that he has no knowledge about the settlement, as he was not present on the spot. On the other hand, defendant Biasan Devi (DW-1), deposed that during settlement her land was merged in the land of plaintiff and thereafter she has maintained correction application to the Settlement Office and when the Field staff recorded the statement after inspecting the spot, plaintiff has not raised any objection. On the other hand, defendant Biasan Devi (DW-1), deposed that during settlement her land was merged in the land of plaintiff and thereafter she has maintained correction application to the Settlement Office and when the Field staff recorded the statement after inspecting the spot, plaintiff has not raised any objection. She has also admitted that she has not made plaintiff as party in the correction application and she has no concern with the land, which is sold by Polo Ram to plaintiff through registered sale deed. Her case is that the land to the extent of 14 marlas was decreased during settlement, as her land was merged in the land of plaintiff. She has also admitted that Polo Ram has delivered the possession in favour of the plaintiff at the time of sale. DW-2, Bakshi Chand, Record Keeper, has produced on record of the settlement. The contention of defendant is that during settlement, her land was merged in the land of plaintiff and as such, her area was decreased. Ex.P-8, is a copy of jamabandi for the year 1968-69, which shows that the area of Khasra No.385 and 384 was 4 Kanals. Ex.P-7, is copy of ‘Misal Hakiat Bandobast’, which shows that Khasra No.384 and 395, were converted into Khasra No.383 measuring 0-16-64 Hects. The said Khasra number is shown to be recorded in possession of the defendant. The area of old Khasra number, as shown in Ex.P-8 was 4 Kanals, which was increased after the settlement of 0-16-64 Hects. i.e. 4 Kanals 7 Marlas. The said revenue entry clearly shows that the area of defendant was increased to 7 Marlas, whereas, the contention of defendant is that her area was decreased during settlement. Ex.D-8, copy of ‘Missal Hakiat Bandobast’, which shows that old Khasra number of Khasra No.384 was 386 and 387 and old Khasra number of Khasra No.386 was 456 and 457 total measuring 0-65-69 Hects. which was shown to be purchased by the plaintiff. The said revenue entry shows that old Khasra No.386 and 387, were converted into new Khasra No.384 and old Khasra No.456 and 457 were converted into new Khasra No.386, during settlement. which was shown to be purchased by the plaintiff. The said revenue entry shows that old Khasra No.386 and 387, were converted into new Khasra No.384 and old Khasra No.456 and 457 were converted into new Khasra No.386, during settlement. Ex.D-7, copy of jamabandi for the year 1968-69, shows that the area of old khasra No.387 was 3 Kanal and 4 Marlas, Khasra No.456 measuring 13 Marlas, Khasra No.386, 5 Marlas and Khasra No.457-11 Kanals and 17 Marlas, which comes to 0-61-24 Hects. The said revenue entries shown in Ex.D-7 and Ex.D-8, shows that the area of new Khasra No.384 and 386, was also increased during settlement. The increase in the said area was affected during settlement, which was prior to the purchase of plaintiff. The area of said land of Polo Ram, was increased during settlement. From the perusal of aforesaid revenue record shows that there is no convincing evidence to show that the area of defendant was decreased during the settlement. In correction order, Settlement Officer has again increased the area of defendant without assigning any valid reason specially when Ex.P-8, copy of jamabandi for the year 1968-69, clearly shows that the area of Khasra No.385 and 384 was 4 Kanals. The aforesaid revenue record also shows that Khasra No.384 and 386 never remained part of Khasra No.383 new (385 old). The contention of defendant is that her area was merged in the land of the plaintiff has not been supported and corroborated by Ex.D-8, which shows that old Khasra number of 384 was 386 and 387 and old Khasra No.386 were Khasra No.456 and 457. It is not established on record that old Khasra Nos.386, 387, 456 and 457, were remained in possession of the defendant. There is no convincing evidence to show that Khasra No.384 and 386 remained part of the land of defendant comprised in Khasra No.383 new (385 old). Further, there is nothing come to the conclusion that defendant was dispossessing the land, as averred by her. After settlement, land of the defendant was denoted by new Khasra No.383, measuring 0-16-64 Hects; as is apparent from jamabandi Ex.P-6, in the year 1995-96. Her claim is that land of the defendant was wrongly decreased during settlement. DW-1 Biasan Devi, has also admitted that she has no concern with the land purchased by the plaintiff from Polo Ram through registered sale deed. Her claim is that land of the defendant was wrongly decreased during settlement. DW-1 Biasan Devi, has also admitted that she has no concern with the land purchased by the plaintiff from Polo Ram through registered sale deed. She has also admitted that settlement was done prior to 1980. On purchased the land, plaintiff constructed a house and cow shed. All this evidence goes to suggest that land which was possessed by Polo Ram in 1980, was sold to the plaintiff, who then came in its possession. Settlement had occurred before purchase of the suit land by the plaintiff. Defendant Biasan Devi, admitted that she has no concern with the land purchased by the plaintiff under registered sale deed from Polo Ram. 11. From the above, it is clear that land of the defendant was never decreased and the defendant is possessing the land from long time and the other averments, which have come on record, as discussed hereinabove, makes no case in favour of the appellant/defendant, to set aside the well reasoned judgment passed by the learned Courts below. When it is on record that land of the defendant has not decreased and the defendant has admitted that she has no concern with the land purchased by the plaintiff from Polo Ram and the plaintiff was not made party by the defendant in the settlement. In these circumstances, this Court finds that the learned Court below was not required to appoint Local Commissioner to search for the evidence for the defendant, so the arguments advanced by the learned counsel appearing on behalf of the appellant is without any force to this effect, in the facts and circumstances of the present case. 12. Hon’ble Apex Court in 2013 (14) Supreme Court cases 608, titled Azrath Bivi and another versus Chinnathambi (dead) through LRs , wherein it has been held that even other view is possible no interference is required by this Court. It is apt to reproduce para 10 of the judgment, which reads thus “10. We have gone into the judgments rendered by the trial court as well as the lower appellate court and the High Court. In our view, the findings recorded by the trial court as well as the lower appellate court did not suffer from any error what to say of the same being perverse. We have gone into the judgments rendered by the trial court as well as the lower appellate court and the High Court. In our view, the findings recorded by the trial court as well as the lower appellate court did not suffer from any error what to say of the same being perverse. Therefore, the High Court was not justified in reversing the concurrent judgments and decrees of the courts below.” 13. The net result of the above discussion is that the suit filed by the plaintiff-respondent is not barred by limitation, as the cause to sue arose to the plaintiff, when the defendant started interference in the land of plaintiff, so substantial question of law No.1, is decided accordingly. The cause of action arose to the plaintiff on 9.12.1991, for the first time, when the order was passed by the Settlement Officer on the back of the plaintiff and in the year 1992, when mutation was attested. In June, 1993, when the defendant tried to take forcible dispossession of the plaintiff and so, the suit, which was filed on 5th March, 1994, cannot be said to be beyond limitation. Since, the order of Settlement Officer on the back of plaintiff and the cause of action accrued to the plaintiff, when defendant started taking forcible dispossession, the suit maintained before the learned trial Court was maintainable and so, the substantial question of law No.2, is answered accordingly. The documents Ex.DW1/A, P-5, P-7 and P-8, are rightly appreciated by the learned Courts below and the findings recorded by the learned Courts below are based upon the correct interpretation of documents and evidence, which have come on record to its true perspective, therefore, it cannot be said that the learned Courts below have not interpreted the documents correctly and so, substantial question of law No.3, is answered accordingly. 14. In view of the above discussion, the appeal of the appellant 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.