Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1248 (HP)

Lachhman v. Keshav

2017-11-10

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. - The plaintiff''s suit for rendition of a declaratory decree in respect of his being entitled for being declared to be exclusive owner of the suit property or in the alternative his being declared to be in exclusive possession thereof, stood, under concurrent pronouncements recorded thereon by both the learned Courts below, hence, dismissed. 2. Briefly stated the facts of the case are that the plaintiff is owner in possession of the suit land, which he had inherited from his father Sh. Kirpa Ram, who died in the year 1962, leaving behind the plaintiff as sole legal heir. It is claimed that Smt. Roshani Devi, defendant No.3 was legally wedded wife of late Sh. Jaunsar, who was the real brother of his father Kirpa Ram. Consequently, the defendants, who are son, daughter and widow of his uncle Jaunsar, have no right, title or interest in the suit property, which was owned by his father kirpa Ram. It is averred that Roshni Devi-defendant No.3, from the loin of her husband Jaunsar, gave birth to three daughters, namely, Manglan Devi, Maya and Bheema and two sons Keshav and Narinder, who all except Keshav, Manglan Devi and Narinder, jointly inherited the property of Jaunsar. Consequently, it is claimed that mutation of inheritance of property of Kirpa Ram was wrongly sanctioned in favour of the defendants along with the plaintiff in equal shares. Plaintiff was minor at the time of sanctioning of the mutation and he had no knowledge of wrong mutation of his father Kirpa Ram. Now, the defendants, on the basis of wrong mutation, started unlawful interference over the suit land owned and possessed by the plaintiff and are bent upon to take forcible possession of it, without any right, title or interest. 3. The defendants contested the suit and filed written statement, wherein, it is averred that Kirpa Ram died in the year 1962 and plaintiff alone was not the sole legal heir of Kirpa Ram, at the time of his death. It is averred that Roshni Devi, defendant No.3 was married to Jaunsar and two daughters Maya and Bheema were born out of the wedlock. After death of his brother Jaunsar on 25.1.1958, Kirpa Ram solemnised customary marriage of ''Jhanjara'' with Roshni Devi. Defendants No.1 and 2 were born from the wedlock of Roshni Devi and Kirpa Ram. It is averred that Roshni Devi, defendant No.3 was married to Jaunsar and two daughters Maya and Bheema were born out of the wedlock. After death of his brother Jaunsar on 25.1.1958, Kirpa Ram solemnised customary marriage of ''Jhanjara'' with Roshni Devi. Defendants No.1 and 2 were born from the wedlock of Roshni Devi and Kirpa Ram. Thus, it is averred that they have, as such, rightly, succeeded to the property of Kirpa Ram along with the plaintiff. The mutation was rightly sanctioned, which was in the knowledge of the plaintiff. Plaintiff is now estopped to challenge the same. The parties are in peaceful possession as per their share in the suit land. Further, it is claimed that the suit is hopelessly time barred, as filed beyond the period of three years from the date of attaining age of majority. Objections qua act and conduct, valuation, jurisdiction, cause of action, non joinder of necessary parties and maintainability were also taken. 4. The plaintiff/appellant herein filed replication to the written statement of the defendants/respondents, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is sole legal heir of deceased Kirpa Ram and entitled to succeed his property exclusively, as alleged? OPP. 2. If issue No.1 is proved, whether the plaintiff is the sole owner in possession of suit land, as alleged? OPP 3. Whether the mutation of suit land sanctioned in favour of the defendants is wrong, illegal, null and void and not binding upon the rights of plaintiffs, as alleged? OPP. 4. Whether the defendants makes unlawful interference in the ownership and possession of plaintiff over suit land, as alleged? OPP. 5. Whether the suit is not maintainable in the present form, as alleged? OPD 6. Whether the suit is time barred, as alleged?OPD. 7. Whether the plaintiff is estopped to file the present suit by his act and conduct, as alleged?OPD. 8. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant herein. OPD 6. Whether the suit is time barred, as alleged?OPD. 7. Whether the plaintiff is estopped to file the present suit by his act and conduct, as alleged?OPD. 8. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom by the plaintiff/appellant before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 7. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal before this Court wherein it assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 15.03.2005, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- a) Whether the two courts below were justified in holding the suit as time barred when the cause of action arose in 1998 and the suit brought in the year 1999? Substantial question of Law No.1. 8. The predecessor-in-interest of the parties at contest, one Kirpa Ram died in the year 1962. During his life time AND after demise of his legally wedded wife, he contracted a customary marriage with his brother''s widow, one, Smt. Roshani Devi. In pursuance thereto, upon occurrence of demise of Kirpa Ram in the year 1962, reflections in pedigree table, borne in Ex.P-2, occurred, with display(s) therein, of, defendant No.3 being the widow of Kirpa Ram besides, of, co-defendants No. 1 and 2, being respectively the son and daughter of deceased Kirpa Ram. Earlier thereto, on demise of Kirpa Ram, mutation qua his estate was attested, wherein, rightsin equal shares, were conferred vis-a-vis the plaintiff and the defendants. Since, this Court is enjoined to make a pronouncement, only upon, the substantial question of law, whereon, the instant appeal stands admitted, thereupon, validity(ies) of reflections occurring in the apposite order, of mutation, comprised in Ex.P-5, as also, the reflections occurring in the pedigree table borne in Ex. P-2, nor the validity(ies) of the customary marriage contracted by deceased Kirpa Ram with the widow of his brother Jaunsar, namely, one Roshani Devi, is not enjoined to be either dwelt upon and nor any adjudication is required to be pronounced thereon. P-2, nor the validity(ies) of the customary marriage contracted by deceased Kirpa Ram with the widow of his brother Jaunsar, namely, one Roshani Devi, is not enjoined to be either dwelt upon and nor any adjudication is required to be pronounced thereon. Moreover, the suit property, in pursuance to the apposite order of mutation, comprised in Ex.P-5, stands reflected in the jamabandis apposite, to the suit land to be jointly held by the parties at contest. (i) Reflections occurring therein when hence enjoy a rebuttable presumption of truth, (ii) whereas, cogent evidence, for displacing the presumption of truth enjoyed by the revenue entries apposite, to the suit property, remaining unadduced, (iii) thereupon, conclusivity is to be imputed to all the reflections borne therein, whereunder, the suit property is reflected to be jointly owned by the parties at contest. The further sequel thereof is of the claim of the plaintiff of his holding exclusive ownership and possession thereof, also getting concomitantly scuttled. 9. Be that as it may, the apposite order, of mutation stood attested in the year 1962, whereat, the plaintiff, who claims reversal thereof, was a minor. (i) However, upon his attaining majority in the year 1970, he yet thereat did not within three years commencing therefrom, hence assail the aforesaid order(s), by his instituting an apposite civil suit, in the civil court concerned, (ii) though, his being imperatively enjoined, by the mandate of Article 58 of the Limitation Act, to, within three years from the date of accrual of cause of action vis-a-vis him, hence, institute a suit, seeking therein a declaratory decree, for setting aside the apposite order of mutation. Even if, the rule embodied in Article 58 of the Limitation Act, (iii) for a suit seeking, a declaratory decree for setting aside the apposite order of mutation AND for setting aside the relevant revenue entries, whereby, the right of the aggrieved vis-a-vis the suit land stood hence infringed, being imperatively brought within three years, since the making of the apposite revenue entries, is not a rule of inflexible rigor,(iv) nor accrual(s) thereat of cause(s) of action, cannot, also be an inflexible rule, for an apposite suit being within three years therefrom, being mandatory instituted, (v) rather with evidence bespeaking, of absence of knowledge in the aggrieved concerned, with respect to their relevant makings, besides accruals, imminently relaxing the rigor of the rule, (vi) besides obviously with acquisition of knowledge(s) thereof, arising, only from proven overt act(s) of interference(s) being made by the offending litigants concerned, thereupon, empowering the aggrieved, to also, within three years therefrom, impugn the relevant orders, of mutation also to impugn the occurrence of relevant entries in the revenue record(s) concerned. 10. The learned counsel appearing for the plaintiff contends, of, with the interference(s) upon the suit land, being made by the co-defendants in the year 1998, thereupon, his being awakened vis-a-vis the apposite order, wherefrom, he contends (i) that the mandate of the apposite Article 58 of the Limitation Act, whereby, he stands validly empowered, to, upon his being being firmly consciously enlivened qua accrual of cause(s) of action, awakenings whereof stand engendered by evident alleged overt invasion(s) made upon the suit land, by the co-defendants, invasion whereof were evidently made in the year 1998, to hence within three years thereafter, institute the apposite suit. However, the aforesaid submission, is seeped in an entrenched illusion, comprised in the factum, (ii) of the revenue entries occurring in the relevant revenue records, since the year 1962 upto 1998, making a visible display of the suit property being reflected to be jointly owned and possessed by the parties at contest,(iii) entries whereof, for reasons aforestated, acquire conclusivity besides when the plaintiff, does not, challenge the disaffirmative findings recorded on the pertinent issue, appertaining to his exclusively possessing the suit land, (iv) thereupon, with his acquiescing, of his jointly holding the suit property with the co-defendants, (v) thereupon his failure, to since the making of the revenue entries, hence, assail them within three years therefrom, cannot, enable him to merely, upon purported interferences being made by the co-defendants upon the suit land in the year 1998, hence, espouse of his thereat becoming awakened in respect thereto, (vi) imminently, when since the making of the entries upto the date of the institution of the suit, his acquiescing qua his jointly enjoying the suit property vis-a-vis them. Moreover, with yet the joint suit property being undismembered, thereupon when the litigating parties, hence, hold thereon unity of title besides community of possession, (vii) thereupon, the effect, if any, of interference(s) by the co-defendants, upon jointly held suit property, is rendered insignificant, in hence construing, of, assumingly upon the aforesaid interference(s) hence constituting any cause of action, for the plaintiff belatedly instituting a suit for setting aside, the apposite order of mutation borne in Ex.P-5. 11. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. Substantial questions of law is answered in favour of the respondents/defendants and against the plaintiff/ appellant. 12. In view of the above discussion, there is no merit in the instant appeal, which is accordingly dismissed. The impugned judgments and decrees are maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back.