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2017 DIGILAW 1441 (HP)

Param Dev v. Tej Singh

2017-12-22

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed by the appellants/defendants, against, the verdict recorded by the learned First Appellate Court, whereby, it reversed the judgment and decree rendered by the learned trial Court, whereby, the latter Court, had, dismissed the suit of the plaintiffs. 2. The original plaintiff, namely, Chuharu (since deceased) set up the case that suit land is recorded to be owned and possessed by the defendant in the revenue record, entries whereof are wrong and incorrect as the suit land is owned by the plaintiff and it was given to the defendant, who is real brother of the plaintiff during the previous settlement for his livelihood at the request of the defendant with condition that as and when the plaintiff would require the suit land the defendant would handover the possession of the same to the plaintiff. The defendant in connivance with the subordinate revenue staff behind the back of the plaintiff and without notice to the plaintiff got the proprietary rights qua the suit land under Section 104 of the H.P. Tenancy and Land Reforms Act in a wrongful and illegal manner and got himself recorded as owner in possession of the suit land which entries are wrong, illegal, null and void. The plaintiff asked the defendant to handover the possession of the suit land but the defendant has refused to handover the possession of the suit land to the plaintiff. 3. The defendant contested the suit of the plaintiff and filed written statement, wherein, they have taken preliminary objections qua limitation, jurisdiction, estoppel, cause of action and valuation. It has been averred that the defendant is owner in possession of the suit land and the revenue entries are correct and plaintiff has got no right, title or interest upon the suit land. It is denied that the defendant ever demanded the suit land from the plaintiff for his livelihood. It has been averred that the defendant is owner in possession of the suit land and the revenue entries are correct and plaintiff has got no right, title or interest upon the suit land. It is denied that the defendant ever demanded the suit land from the plaintiff for his livelihood. The suit land and other land was jointly acquired by the plaintiff and the defendant, when they were residing together and the defendant was an uneducated person and the plaintiff being elder brother of the defendant used to go outside the house in Tehsil and District head quarter, whereas, the defendant used to manage the entire household affairs, inclusive the land and the plaintiff himself got recorded as exclusive owner in possession of the suit land to the exclusion of the defendant, whereas, the suit land and the other land was jointly managed and developed by both the parties and the defendant was entitled to half share in the entire land. On coming to know about the wrong entry the defendant applied for correction of the revenue entry before the Tehsildar Chachiot and requested for settlement of the dispute through the Panchayat in the year 1959 and thereafter the Tehsildar Chachiot referred the matter to the Panchayat and on 17.10.1959, a compromise in writing was executed between the parties in the presence of the members of the Panchayat in which the plaintiff agreed to get half of the land entered in the revenue record in the name of the defendant and in pursuance of such compromise deed the plaintiff went to Tehsildar Chachiot with request to enter the suit land in possession of the defendant and thereafter the Tehsildar directed Patwari Halqua to enter the name of the defendant in the revenue record and thus the entry in the name of the defendant has been made to the knowledge of the plaintiff and the defendant is owner in possession of the suit land as the plaintiff has relinquished his right, title or interest in the suit land in favour of the defendant during 1959. In the alternative, it has been pleaded that, if the relinquishment is found invalid or not proved in accordance with law then the defendant is in exclusive possession of the suit land since November, 1959 to the exclusion of the plaintiff as a matter of right to the denial of the right of the plaintiff and as such the defendant has acquired title in respect of the suit land by way of adverse possession. It has been further averred that the defendant never claimed that he is non occupancy tenant of the suit land but the defendant considered himself to be owner in possession of the suit land from the very beginning. 4. The plaintiff filed replication to the written statement of the defendants/appellants herein, wherein, he denied the contents of the written statement and reaffirmed 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 owner of the suit land, as alleged? OPP. 2. Whether the defendant is in possession of the suit land on account of relationship, as alleged? OPP. 3. Whether the revenue entries showing the defendant as owner in possession are wrong, illegal, null and void, as alleged? OPP. 4. Whether the suit is time barred? OPD. 5. Whether this Court has got no jurisdiction to entertain the suit? OPD 6. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD. 7. Whether the plaintiff has got no cause of action to file the present suit? OPD. 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 9. Whether the plaintiff has relinquished his right, title and interest in favour of the defendant in the year 1959? OPD. 10. If, issue No.9 is not proved in affirmative, then whether the defendant has become owner in possession of the suit land by way of adverse possession, as alleged? OPD. 11. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/respondents herein. In an appeal, preferred therefrom, by, the plaintiffs/respondents herein before the learned First Appellate Court, the latter Court allowed the appeal and reversed the findings recorded by the learned trial Court. 7. OPD. 11. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/respondents herein. In an appeal, preferred therefrom, by, the plaintiffs/respondents herein before the learned First Appellate Court, the latter Court allowed the appeal and reversed the findings recorded by the learned trial Court. 7. Now the defendants/appellants herein, have instituted the instant Regular Second Appeal before this Court wherein they assail the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 22.12.2006, this Court, admitted the appeal instituted by the defendants/appellants, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the first Appellate Court has not appreciated the evidence correctly, while reversing the decree of the trial Court and returning the finding that the respondent/plaintiff is the owner of the suit land and entitled to declaration tot he said effect and also for possession thereof? Substantial questions of Law No.1. 8. The plaintiffs' claimed, for, a declaratory decree qua a besides decree of possession, being hence pronounced vis-a-vis the suit khasra numbers. The fulcrum of the claim of the plaintiffs, rested, upon, the validity of an order conferring proprietary rights, upon, the defendants by the Revenue Officer concerned, while the latter exercised powers under Section 104 of the H.P. Tenancy and Land Reforms Act (hereinafter referred to as the Act). However, apart from the plaintiffs, casting, challenge vis-a-vis the orders conferring proprietary rights, upon, the defendant by the Revenue Officer concerned, he has merely reared a bald plea, of, the defendants being never inducted, as tenants upon the suit land. However, apart from the plaintiffs, casting, challenge vis-a-vis the orders conferring proprietary rights, upon, the defendant by the Revenue Officer concerned, he has merely reared a bald plea, of, the defendants being never inducted, as tenants upon the suit land. The plaintiffs, for, obtaining success in making a challenge vis-a-vis the orders conferring statutory proprietary rights, upon, the defendants, (i) were enjoined to adduce on record, jamabandis, appertaining to the suit land, especially the ones preceding, to, the making of the order, whereunder, proprietary rights vis-a-vis the suit kahsra numbers, were, conferred upon the defendants AND (ii) theirs making a graphic display, of the defendants being carried therein, as, non-occupancy tenants AND (iii) were also enjoined, to, adduce evidence underscoring the trite factum, of, despite the defendant not liquidating vis-a-vis him rent in cash or kind, the apposite entries being made, displaying, the defendants to be non-occupancy tenants vis-a-vis the suit land, hence theirs being fictitious. However, the plaintiffs, failed to adduce any evidence, for falsifying all the enunciations borne, in, the jamabandi appertaining to the suit land, (iv), especially, qua the year 1971 and qua years subsequent thereto, jamabandis whereof are respectively comprised in Ex.P-1 to Ex.P-2, wherein, the defendants are recorded as non-occupancy tenants, upon, the suit land. Since, a presumption of truth, is, enjoyed by the revelations borne in Ex.P-1 and in Ex.P-2, (v) reflections whereof in display, of, the defendants being recorded, as gair maurisi upon the suit khasra numbers, in sequel whereof, hence, occurred statutory conferment of proprietary rights upon them, qua the suit khasra numbers, concomitantly, they acquire an aura of validity. Even though, presumptions of truth, is, attached to the entries borne in Ex.P-1 and in Ex.P-2, (vi) entries whereof are reflective of the defendants, holding possession, of the suit land as gair maurisi also when no evidence of potent vigour to rebut the aforesaid reflections, is, adduced by the plaintiff, (vii) thereupon, when the reflections borne in Ex.P-1 and Ex.P-2, acquire, an aura of conclusivity, reiteratedly, hence, the plaintiffs are disabled, to canvass of the defendants, not, holding any legitimate capacity, to, obtain an order of conferment of statutory proprietary rights upon them, vis-a-vis the suit khasra numbers. 9. 9. Even though, this Court garners the aforesaid conclusion, for disabling the plaintiffs, to, assail the orders conferring statutory proprietary rights, upon, the defendants, (i) yet the vigour thereof, is, ipso facto eroded by the defendants, in conflict with the reflections, borne, in Ex. P-1 and in Ex.P-2, besides with theirs, not, concerting to derive the benefits of the orders, whereunder, statutory proprietary rights stood conferred upon them, (ii) rather hence anvilling their claim on Ex. DA, (iii) AND in the alternative thereto, of theirs since 1959, with an animus possedendi, holding possession, of the suit land upto now, thereupon, theirs perfecting their title by prescription vis-a-vis the suit khasra numbers. Nowat, the espousal reared by the defendants, of, theirs acquiring title vis-a-vis the suit land, under Ex.DA, has to be gauged. For Ex. DA, to empower the defendants to assert a valid title vis-a-vis the suit land, they were enjoined to prove its execution. Clinching proof, of execution of Ex. DA, would occur, upon its carrying the signatures of the respective parties, inter se whom, it stood executed. However, Ex. DA does not bear thumb impressions either of the plaintiffs nor does it bear any thumb impressions of the defendant also, does it is not signed by any of the witnesses, thereto. Consequently, the mere tendering into evidence of Ex. DA, besides its being permitted to be exhibited, would not per se, render it to be relevant for clinching the trite fact of, upon, it anvils, the defendant displacing the assertion of the plaintiffs, for a declaratory title of owners being rendered vis-a-vis them qua the suit land. Even though, any document conferring rights upon any of the executants thereof for, leverage being derived therefrom, is, (i) obviously enjoined to carry the thumb impressions or the signatures of its respective executants, besides of witnesses thereof, (ii) whereas, reiteratedly, its not carrying the signatures/thumb impressions of any of its executants nor its carrying the thumb impressions/signatures, of, witnesses thereof, (iii) thereupon renders it to be construable to be not a validly executed document, for the relevant purpose, dehors, its being tendered into evidence or its being embossed with an exhibition mark. Even though, the aforesaid infirmities are strived to be overcome, by the son, of its scribe hence stepping into the witness box, in proof of his deceased father scribing it, yet the aforesaid attempt, cannot score off, the ill effects, of the incomplete execution, of Ex. DA, (iii) especially when its complete execution would occur, only upon the parties thereto, inter se whom it stood executed, evidently appending thereon their respective thumb impressions or their signatures thereon AND witnesses thereto, doing, likewise. Conspicuously, for all the reasons aforesaid, absence of, complete execution of Ex. DA, renders, it to be un-readbale nor it purveys any capitalization to the defendant, to upon its anvil, dislodge the claim of the plaintiff, for rendition of a declaratory decree or for rendition, of a decree for possession. 10. Be that as it may, in the alternative, the defendants reared, an espousal of theirs since 1959, upto now, with an animus possedendi, holding possession, of the suit land, hence theirs by elapse of the statutorily enjoined period of time, hence, perfecting their title vis-a-vis the suit land. However, the aforesaid espousal reared by the defendants, is squarely blunted, by (a), theirs, for displacing the claim of the plaintiff, for rendition of a declaratory decree, resting their claim vis the suit land upon Ex. DA, (b) their counsel, during, the course of holding the plaintiff, to, cross-examination meteing suggestions to him in respect, of the suit land being conjointly alloted as Nautor vis-a-vis him and the plaintiff; (c), the plaintiff contrary to the allotment of the suit land made jointly vis-a-vis him and the defendants, rather appropriating it to himself; (d) a compromise being struck in the year 1959, in sequel whereof, he is holding possession, of the suit land. The effect of the aforesaid suggestions meted, by the counsel for the defendant while his holding the plaintiff to cross-examination, (e) ARE highlightive of acquiescences of the defendants, rather holding a valid and permissive possession of the suit khasra number, (f) thereupon, theirs espousing, of, theirs with an animus possedendi hence, obviously, purportedly holding any hostile possession of the suit land, since 1959 upto now, is grossly antithetical vis-a-vis the trend of the aforesaid suggestions, meted, by their counsel while holding the plaintiff, to cross-examination, rendering the aforesaid espousals to meet the ill fate, of, their rejection. 11. 11. The aforesaid antithetical contradictory espousals reared by the defendant, for, claiming acquisition of tittle, by prescription, vis-a-vis the suit khasra number, predominantly upon Ex. DA, though may yet be permissible, nonetheless, the permissibility thereof, is effaced (i) by inherent lack of a pronounced, hostility, of the defendants in theirs holding possession, of, the suit khasra number since 1959, upto know; (ii) whereas, evident pronounced, hostility, of possession, of the defendants vis-a-vis the suit khasra numbers, tritely against the rights thereon of the plaintiffs, hence, was imperative, for the defendants to achieve success in their endeavour. Reiteratedly, contrarily, with the defendants claiming acquisition of title under Ex. DA vis-a-vis the suit khasra number, thereupon, with theirs also, not, with an hostile animus, denying, the title of the plaintiffs vis-a-vis the suit land, rather theirs asserting a valid title thereto, (iii) whereas, open hostile denial, by the defendants of the plaintiffs' title vis-a-vis the suit land, was also imperative, for theirs achieving success in their espousal, of theirs acquiring title by prescription vis-a-vis the suit khasra numbers,(iv) thereupon, the endeavour of the defendants, to, on anvil of theirs acquiring title by prescription vis-a-vis the suit khasra number also ought to concomitantly falter. 12. 12. Be that as it may, even if, the defendants, repudiates the validity, of, the orders whereunder statutory proprietary rights vis-a-vis the suit khasra numbers, stood conferred upon them, (i) also hence lend credence to the plaintiffs' espousal of the defendants, not, being inducted, as gair maurisi, upon, the suit land also purvey leverage, to, the plaintiffs to succeed in proving, of, statutory conferment of the proprietary rights, upon the defendants, being flawed besides also obviously, blunt, the efficacy of presumptions of truth enjoyed by the apposite entries, revealing, the defendants to be gair maurisi, upon, the suit khasra, numbers, (ii) also importantly disable the defendants, to, rear a plea of theirs acquiring title by prescription vis-avis the suit khasra number, (iii) reiteratedly for, the reason, of, the evident inability of the defendants, to, dehors the aforesaid inference, to, also place on record, the proceedings embarked, upon, by the Revenue Officers concerned, preceding, the making of the orders, whereunder statutory proprietary rights, stood conferred upon the defendants, (iv) with pronouncements therein, of, the defendants not being served or appearing in the relevant proceedings also with pronouncements, occurring, therein of the Revenue Officer concerned, despite, non appearances of the defendants, his proceeding to make the relevant orders. It appears that in the defendants, camouflaging, from, the view of this Court, the aforesaid orders, is engendered, merely, for concealing the factum qua, upon, its tenderings and production or adduction, its revealing, of, the apposite orders being recorded in their presence also to hide the factum, of, despite theirs being not validity recorded as gair maurisi, upon the suit khasra numbers, theirs inaptly striving to claim the benefit of the apposite statutory provisions. The aforesaid concealments, of, the aforesaid apposite material, appears to stem from ditherings and vacillations, of the defendants, in relying, upon, any formidable evidence, leading them to rear contradictory pleas, for asserting their title vis-a-vis the suit khasra number. Hence, their ditherings and vacillations, especially the one appertaining to their disountable plea, of theirs acquiring title vis-a-vis the suit khasra numbers, by prescription, plea whereof, for all the aforesaid reasons, is belied by evidence, unveiling, of, theirs holding permissive possession vis-a-vis the suit khasra number, ARE obviously, impinging upon the validity(ies), of, their efficacy(ies). Consequently, the endeavour, of the defendants to stake a claim for acquisition of title, by prescription vis-a-vis the suit land, ought to falter. 13. Consequently, the endeavour, of the defendants to stake a claim for acquisition of title, by prescription vis-a-vis the suit land, ought to falter. 13. The learned counsel appearing for the appellants contends, that, the plaintiffs were aware, of the possession of the suit land being held by the defendants, awareness whereof evidently occurred since 1959. He further contends that since then upto 1998, the plaintiffs omitted to institute a suit for possession of the suit khasra numbers, rather they procrastinated in insituting the apposite suit, for rendition of a declaratory decree besides for rendition, of, a decree for possession of the suit khasra numbers upto, 1998. Significantly, hence the suit of the plaintiffs, falls outside, the prescribed period of limitation, both in respect of their claim for a declaratory decree also in respect of their claim qua rendition of a decree for possession. However, the aforesaid submission, of, the learned counsel appearing for the appellants/defendants is not acceptable to this Court, given the defendants evidently holding permissive possession of the suit land. To above effect, an averment is also existing in the plaint, evidently of the plaintiffs' predecessor-in-interest, giving, the land to the predecessor-in-interest of the defendants, for earning his livelihood AND of cause, of action being reared in the plaintiff, on refusal, of the defendants to handover possession, of, the suit land vis-a-vis the plaintiff, upon the latters asking, is also testified by the plaintiffs. Consequently, with the defendants being in evident permissive possession of the suit land, possession whereof, was asked, to be handed over to the plaintiff in the year 1998 AND upon refusals, occurring, on the part of the defendants, to handover possession of the suit land to the plaintiffs, the latter promptly instituting the instant suit, for rendition of a declaratory decree as also for possession, before the trial Court concerned, hence, constrains this Court to conclude, that the suit of the plaintiffs, does not fall, outside the prescribed period of limitation. 14. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Accordingly, the substantial question of law is answered in favour of the respondents and against the appellants. 15. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Accordingly, the substantial question of law is answered in favour of the respondents and against the appellants. 15. In view of the above discussion, the instant appeal is dismissed and the impugned judgment and decree rendered on 19.01.2006 by the learned First Appellate Court in Civil Appeal No. 50/2002, 86/2005 is maintained and affirmed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back.