Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 146 (HP)

Het Ram v. Partap Singh

2017-03-08

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. Through the instant appeal, the appellants challenge the verdict recorded by the learned first Appellate Court whereby it reversed the verdict recorded by the learned Sub Judge (Nalagarh) whereby, he, on account of lack of jurisdiction to decide the lis embodied in the plaint, returned it, for its presentation before the appropriate Court. 2. The brief facts of the case are that the respondents herein (for short “the plaintiffs”) instituted a suit for declaration with consequential relief of permanent prohibitory injunction and in alternative for possession against the appellants herein (for short “the defendants”). The case of the plaintiffs is that the land bearing Khewat/Khatauni No. 73/127/69 bearing khasra Nos. 277, 453, 1075, 1518 measuring 12 bighas 18 biswas situated at village Bhatauli Kalan, Had Bast No. 214, pargana Dharampur, Tehsil Nalagarh, District Solan, H.P. was bearing old Khasra Nos. 1460/202 min & 1461/202, 1454/264, 880, 1477/1263 which is the subject matter of the dispute. One Mr. Chaina was the common ancestor of the parties to the suit who had five sons namely Balayati Ram, Bhagat Ram, Samunda, Nihaloo and Hazarro. The plaintiffs are progeny/successors-in-interest of one Shri Nihaloo. The defendants are the progeny/successors-in-interest of Bilayati Ram, Bhagat Ram, Samunda and Hazaroo. Earlier to coming to village Bhatauli Kalan the defendants had come from village Madhala and they have their landed property situated at village Madhala, pargana Doon, Thsil Kasuali, District Solan, H.P. Similarly the plaintiffs have also their landed property at village Bhatauli Kalan and the plaintiffs were owners in possession of the suit land. The predecessor-in-interest of the plaintiffs and the defendants came to an understanding to exchange their lands inter-se and the predecessor-in-interest of the defendants proposed that their land situated at village Madhala should be exchanged with the land situated at village Batauli Kalan with Ram Chand and Gian Chand. But this proposal of exchange could not be finalized although an entry in the revenue records came qua this exchange in 1961/1962 but this exchange could not become operative and no mutation of exchange could take place. But this proposal of exchange could not be finalized although an entry in the revenue records came qua this exchange in 1961/1962 but this exchange could not become operative and no mutation of exchange could take place. However arrangements regarding this exchange between the predecessor-in-interest of the parties remained and the defendants entered into permissive possession of the suit land owned by Gian Chand and Ram Chand situated in village Bhatauli Kalan and similarly said Gian Chand and Ram Chand remained in permissive possession of the land of the defendants situated at village Madhala. That the suit land was being acquired by the State Government and notice to this effect was issued and the plaintiffs also came to know about this notification and were eager to get the compensation and when they approached the Land Acquisition Collector, Nalagarh for the purpose of getting compensation, they came to know that the defendants have got this land mutated in their favour vide mutation No. 955 of 30.1.1977 and on the basis of which the defendants have been recorded and shown as owners of the suit land. The plaintiffs have challenged the said mutation sanctioned behind their back arbitrarily without serving notice upon them. They have also challenged the subsequent revenue entries qua the suit land where it is shown in the ownership and possession of the defendants. As such, suit for declaration with consequential relief of permanent prohibitory injunction and in the alternative for possession has been instituted by the plaintiffs against the defendants. 3. The suit stands contested by the defendants by filing written-statement wherein they have taken preliminary objections regarding maintainability, jurisdiction as the proprietary rights of the suit land have been conferred upon the defendants vide mutation No. 955 of 30.1.1977 under the H.P Tenancy and Land Reforms Act (for short “ the Act”) and the Civil Court has no jurisdiction to try the dispute inter-se the parties and that the plaintiffs have no cause of action to file the present suit. On merits, they have refuted the allegations delineated in the plaint. The defendants emphatically denied whether any exchange between the parties took place therefore the question that it could not be materialized does not arise. On merits, they have refuted the allegations delineated in the plaint. The defendants emphatically denied whether any exchange between the parties took place therefore the question that it could not be materialized does not arise. They further alleged that no mutation on the basis of this exchange was sanctioned and revenue entries of exchange are illegal, null and void as there was no exchange whichever took place inter-se the parties. They also denied whether their predecessors-in-interest entered into permissive possession of the suit land of Gian Chand and Ram Chand of village Bhatauli Kalan and that said Gian Chand and Ram Chand the predecessor-in-interest of the plaintiffs also remained in permissive possession of the land of the defendants situated at village Madhala. They stated that no exchange ever took place between the parties and their predecessor-in-interest and that the defendants from the time of their predecessor-in-interest remained in self cultivation of the land situated at village Madhala. They alleged that the Predecessor-in-interest of the defendants entered into possession of the suit land since July, 1930 and they remained in exclusive possession of the same till their death and thereafter the defendants came in possession of the suit land and their possession is open, peaceful and hostile to the knowledge of the plaintiffs and as such they have become owners of the same by way of adverse possession. They have also alleged that they have acquired title of the suit land by way of adverse possession. No doubt they stated that the mutation of proprietary rights under section 104 of the Act qua the suit land was sanctioned in their favour but the said mutation was sanctioned by the Revenue officer without their knowledge and said sanctioning of mutation qua the suit land does not displace the defendants from acquiring ownership over the suit land by way of adverse possession. Therefore they have also disputed the conferment of the proprietary rights qua the suit land upon them on the basis of the tenancy and exchange as such they pray that the suit of the plaintiff be dismissed. 4. In the replication, the plaintiffs controverted the contention of the defendants and reiterated their stand taken in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties at contest:- “1. Whether the plaintiffs are owner in possession of the suit land, as alleged? 4. In the replication, the plaintiffs controverted the contention of the defendants and reiterated their stand taken in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties at contest:- “1. Whether the plaintiffs are owner in possession of the suit land, as alleged? OPP 2. Whether mutation No. 955 of 30.1.1997 sanctioned in favour of the defendants is wrong, illegal, null and void ?OPP 3. Whether this suit is not maintainable in the present form? OPD 4. Whether this Court has no jurisdiction to try this suit? OPD 5. Whether the plaintiffs have no locus-standi to file the present suit? OPD 6. Whether the plaintiffs have no cause of action? OPD 7. Whether the defendants have become owner of the suit land by way of adverse possession? OPD 8. Relief. 6. On an appraisal of the evidence adduced before the learned trial Court, the learned trial Court returned the plaint to the plaintiffs for its presentation by them before the competent forum. An appeal therefrom stood preferred by the aggrieved plaintiffs before the learned first Appellate Court. On an appraisal of evidence adduced before it, the learned first Appellate Court set aside the findings recorded by the learned trial Court. In sequel, the appeal preferred by the plaintiffs before the learned first Appellate Court, hence succeeded. 7. The defendants/appellants herein standing aggrieved by the judgment and decree rendered by the learned first appellate Court have therefrom instituted here before the instant Regular Second Appeal. 8. Since the appeal stood admitted on 14th July, 2008 by this Court on the following substantial questions of law, consequently this Court would decide the instant appeal by rendering answers thereto. “1. Whether the impugned judgment and decree is the result of non-consideration of the provisions of Article 65 of the Limitation Act. 2. Whether the impugned judgment and decree is the result of non-consideration of Exhibit P3 Jamabandi for the year 1987-88 Ex.P-4 Khatani istemal Ex.P-7 Ex.P-11 and Ex.P-12. 3. Whether the learned lower appellate Court is right in holding that the Civil Court has no jurisdiction without considering the categorical findings recorded on issue No.4 by the learned trial Court.” Substantial questions of law:- 9. 3. Whether the learned lower appellate Court is right in holding that the Civil Court has no jurisdiction without considering the categorical findings recorded on issue No.4 by the learned trial Court.” Substantial questions of law:- 9. Under mutation No. 955 comprised in Annexure P- 6, recorded on 30.1.1977, proprietary rights qua the suit land stood conferred upon the defendants, mutation whereof stood assailed by the plaintiffs. In the impugned verdict recorded by the learned first Appellate Court, a conclusion stood reared by it, qua the entries qua the suit land held in the relevant Jamabandis for the reasons delineated therein holding no sanctity whereupon it declared the contentious mutation to be null and void. 10. The analysis of the relevant jamabandis, by the learned first Appellate Court whereupon an inference stood garnered by it qua the contentious mutation conferring propreitary rights qua the suit land upon the defendants suffering invalidation stands contended by the learned counsel appearing for the appellants, to suffer from a gross infirmity, contention whereof stands anvilled upon the factum qua with the reflections occurring therein magnificatory qua the predecessor-in-interest of the defendants holding the suit land as a gair marusi, hence rendered the apposite order attesting/conferring proprietary rights qua the suit land upon the defendants to not suffer from any vice of invalidation. However, the aforesaid contention holds no weight in the apparent factum, of the relevant jamabandis qua the suit land not holding therein any enunciation in the relevant column of ‘rent’ personificatory qua the predecessor-in-interest of the defendants while purportedly holding the suit land, as a Gair Marusi, his paying rent to the land owners, contrarily reflections therein pronounce the factum of his holding the suit land under a mutual exchange standing entered interse the parties thereto, exchange whereof stands denied by the plaintiffs, nor any document in support thereto exists besides no order attesting mutation of exchange stands proclaimed in the apposite revenue records for thereupon supporting the aforesaid reflections borne in the apposite column of ‘rent’ held in the relevant jamabandis whereupon the apposite entry in the column of ‘rent’ stands rendered to be construable to be an invented besides a stray entry whereupon no sanctity is imputable. Also reflections in the apposite revenue records qua the predecessor-in-interest of the defendants holding the suit land as a ‘Gair marusi’ without payment of rent, does strip the tenacity of the aforesaid recorded entry. Moreover, reflections occurring therein pronouncing the factum qua the predecessor-in-interest of the defendants holding the suit land as a ‘gair marusi’, do not also acquire any hue of validation conspicuously when the entry of his holding the suit land as a “Gair Marusi” for it thereupon to hold omnibus vigor, reiteratedly enjoins existence of corresponding entries in the apposite column of rent, for thereupon an inference standing erectable qua a valid contract of tenancy standing entered qua the suit land inter-se the land owner vis-à-vis the predecessor-in-interest of the defendants or qua it thereupon hence coming into existence, contrarily the entry in the column of rent pronouncing qua the predecessor-in-interest of the defendants holding it under an exchange, qua exchange whereof no mutation evidently stands proven to stand attested, thereupon the reflections in the apposite jamabandis qua the predecessor-in-interest of the defendants holding the suit land as a “Gair Marusi” stand rendered to be bereft of any hue of validation. 11. Moreover, the apposite column of rent held in the apposite jamabandis proclaims qua the predecessor-in-interest of the defendants holding the suit land under an exchange, whereas in preceding column thereof enunciates his status qua the suit land as a “Gair Marusi”, reflections whereof occurring therein are antithetical to the salient nuance of a contract of tenancy, contract whereof warrants rent evidently standing paid by the predecessor-in-interest of the defendants qua the plaintiffs, factum whereof being wholly amiss, renders the analysis of the relevant jamabandis by the learned first Appellate Court to not suffer from any gross infirmity or perversity. 12. Be that as it may, the learned trial Court pronounced an order returning the plaint to the plaintiffs for its presentation by them before the appropriate forum conspicuously on account of its lacking the apposite jurisdiction, to pronounce a verdict thereon whereas the learned first Appellate Court concluded qua the aforesaid findings warranting interference. 12. Be that as it may, the learned trial Court pronounced an order returning the plaint to the plaintiffs for its presentation by them before the appropriate forum conspicuously on account of its lacking the apposite jurisdiction, to pronounce a verdict thereon whereas the learned first Appellate Court concluded qua the aforesaid findings warranting interference. The learned trial Court ordered for the return of the plaint to the plaintiffs for its presentation by them before the competent forum, order whereof spurred from its concluding qua its not holding any jurisdiction to test the legality qua the attestation of mutation No. 955 whereupon proprietary rights stood conferred qua the suit land upon the defendants, besides stood rested upon judgments reported in Daulat Ram versus State of H.P ILR 1978 HP 741 and Chunia Devi versus Jindu Ram 1991(1) Sim. L.C 223. 13. In making the aforesaid conclusion, the learned trial Court has visibly omitted to impute an apposite appreciation qua the exceptions carved therein qua the predominant proposition propounded therein, qua Civil Courts lacking jurisdiction to pronounce any verdict upon a lis hinged upon the validity of an order rendered by a revenue officer concerned exercising apposite powers under the Act whereupon he confers proprietary rights upon a “tenant”, exception whereof spurs on evident nonparticipation of the aggrieved in the apposite proceedings rendering hence a suit constituted by the aggrieved on the aforesaid facet before the Civil Court concerned wherein a challenge is cast upon aforesaid order rendered by the Revenue Officer concerned to hence stand rendered maintainable thereat. The learned trial Court omitted to mete the enjoined reverence qua the plaintiffs averring qua theirs acquiring knowledge only in the year 1997 qua the contentious order conferring proprietary rights upon the defendants wherein an obvious tacit implied engraftment stood encapsulated qua the contentious order attesting mutation whereupon proprietary rights qua the suit land stood conferred upon the defendants standing prior thereto unknown to them besides its rendition ensuing without the participation of the aggrieved in the apposite proceedings whereupon hence it stands afflicted with a vice of its infracting the mandate of “Audi Alteram Partem”, thereupon the salient exception, to the predominant principle encapsulated in the citations qua a Civil Court standing jurisdictionally barred to entertain a lis challenging an order of mutation recorded by a revenue officer concerned exercising powers under the apposite Act whereupon proprietary rights stand conferred upon a “gair marusi” also held therein qua evident non-participation of the aggrieved in the apposite proceedings vesting jurisdiction vis-à-vis a Civil Court qua the aforesaid facet. Moreover with the apposite order of mutation evidently not holding reflections therein in portrayal qua the plaintiffs recording their presence before the Revenue Officer concerned at the time contemporaneous to his recording an order conferring proprietary rights qua the suit land upon the defendants rendered the apposite order to amplifyingly stand stained with a salient vice of its infracting the principle of the “Audi Alteram Partem” whereupon also the predominant expostulations of law held in the citations aforesaid relied upon by the learned trial Court to thereupon non-suit the plaintiff stood inappositely attracted by it vis-à-vis the defendants despite citations propounding exceptions thereto, exceptions whereof stand comprised in evidence displaying the trite factum of the aggrieved standing condemned unheard, expostulated exceptions thereto carved therein also stood vigorously underscored by a display in the relevant order qua at the stage of its recording, the aggrieved not marking their presence or attendance before the revenue officer concerned, thereupon the aforesaid manifestations held therein constituted vivid proof qua the exceptions qua the preponderant principle propounded in the citations relied upon by the learned first Appellate Court whereupon the suit of the plaintiff assailing the order attesting mutation no. 955 whereupon proprietary rights qua the suit stood conferred upon the defendants stands rendered maintainable before the Civil Court, as aptly concluded by the learned first Appellate Court. 14. 955 whereupon proprietary rights qua the suit stood conferred upon the defendants stands rendered maintainable before the Civil Court, as aptly concluded by the learned first Appellate Court. 14. The learned first Appellate Court had dwelt upon the testimonies of the defendants witnesses. An incisive perusal whereof by this Court underscores qua no communication occurring therein in portrayal qua commencement with precision in timing of possession with an animus possidendi upon the suit land, by the predecessor-in-interest of the defendants nor also there occurs any articulation therein holding bespeaking qua any overt act in personification qua the predecessor-in-interest adversely proclaiming his title qua the suit land vis-à-vis the plaintiffs, thereupon the oral evidence as stands adduced by the defendants to succor their claim qua theirs perfecting their title by prescription qua the suit land is abysmally wanting in probative weight, contrarily the factum of the defendants on anvil of reflections in the relevant Jamabandis portraying their predecessor-in-interest to be holding possession qua the suit land as a “gair marusi”, hence obtaining an order whereupon proprietary rights qua the suit land stood conferred upon them, effect of reflections whereof stands pronounced by this Court to not afford any formidable leverage to the Land Reforms Officer to pronounce an order conferring proprietary rights qua the suit land upon the defendants also thereupon does ipso facto countervail the assertion(s) of the defendants qua theirs acquiring prescriptive title qua the suit land ensuing from efflux of the statutorily mandated period, conspicuously when the contentious order of mutation stood rendered in their presence thereupon an apt conclusion ensues qua theirs emphatically acquiescing qua theirs solitarily on anvil of an order of mutation conferring proprietary rights upon them hence espousing qua theirs thereupon acquiring title to the suit land whereupon they stand estoppel to contend qua theirs perfecting their title thereon by prescription. 15. 15. This Court while dwelling upon the entries held in the apposite jamabandi, has concluded qua the entry in the column of rent holding reflections therein qua the predecessor-in-interest of the defendants holding the suit land as a “Gair Marusi” being antithetical vis-à-vis the subsequent reflections in the column of “rent” pronouncing the factum qua their predecessor-in-interest holding it under an exchange, exchange whereof stands unproven to stand preceded by any order attesting mutation in respect thereto, also for want of any corresponding entry in the apposite Colum of rent for hence proving a valid contract of tenancy, renders the entry recording the predecessor-in- interest of the defendants to be wanting in legal efficacy, entry whereof also capitalizes an inference qua the predecessor-in-interest permissively holding the suit land under a contentious purported exchange. Acquiescence qua the aforesaid factum gets immense boost from the factum of reflections held in the apposite jamanandis standing not assailed by the defendants, failure whereof of the defendants garners a derivative qua the presumption of truth aforesaid carried by the apposite reflections held in the relevant jamabandis qua the suit land hence for want of rebuttal thereto hence acquiring conclusivity. 16. In aftermath with conclusivity standing imputed by this Court qua reflections in the apposite jamabandis pronouncing the factum of the predecessor-in-interest of the defendants holding the suit land under a contentious exchange entered with the concerned thereupon with the defendants permissively holding the suit land renders the propagation made by the defendants qua theirs since their predecessor-in-interest holding the suit land with an animus possidendi whereupon they espoused qua theirs perfecting their title thereto, to get withered. 17. In view of the above, there is no merit in the appeal and the same is accordingly dismissed. The impugned judgment rendered by the learned first Appellate Court is maintained and affirmed. Substantial questions of law are answered accordingly in favour of the plaintiffs/respondents herein. Records be sent back.