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2017 DIGILAW 240 (HP)

Hari Ram v. Santi Devi

2017-03-24

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The plaintiff instituted a suit against the defendants for permanent prohibitory injunction. The suit of the plaintiffs stood dismissed by the learned trial Court. In an appeal carried therefrom by the aggrieved plaintiffs before the learned First Appellate Court, the latter Court allowed the appeal of the plaintiffs whereupon it rendered a decree of injunction, permanently restraining the defendants from interfering in the possession of the plaintiffs over the suit land. The defendants standing aggrieved by the impugned rendition recorded by the learned First Appellate Court concert to assail it by preferring an appeal therefrom before this Court. 2. Briefly stated the facts of the case are that the original plaintiff, Mohan, the predecessor in interest of the respondents was owner in possession of the land comprised in khewat and khatauni No. 95/92/135, khasra No. 920/492, old khasra No. 10 new, measuring 2-9-0 bighas situated at Mouja Rathol, Illaqua Balh, tehsil Sadar, District Mandi, H.P. He filed the suit against the respondents alleging therein that the defendants without any right, title or interest in the suit land are interfering with his possession in the suit land by letting lose their cattle in the suit land and destroying the crop sown in the suit land. It is further averred that despite the repeated requests of the plaintiff the defendants did not stop interfering with the possession of the plaintiff in the suit land, hence, this suit. In the alternative the plaintiff claimed the relief of possession, if the defendants occupied any part of the suit land during the pendency of the suit. 3. The defendants contested the suit and filed written statement. It is pleaded that they have purchased 0-11-2 bigha of land from plaintiff Mohan and thereafter on 17.8.1984 the plaintiff agreed to sell and exchange the suit land in favour of the defendants for a consideration of Rs. 6,000/- and for the exchange of land, measuring 0-11-12 bigha. It is alleged that after the execution of the sale cum exchange deed the parties exchanged their land and at that time a sum of Rs. 4,000/- was paid to the plaintiff and the remaining amount was to be paid at the time of execution of the sale deed. 6,000/- and for the exchange of land, measuring 0-11-12 bigha. It is alleged that after the execution of the sale cum exchange deed the parties exchanged their land and at that time a sum of Rs. 4,000/- was paid to the plaintiff and the remaining amount was to be paid at the time of execution of the sale deed. It is further alleged that since the suit land has been allotted as nautor land to the plaintiff, it could not be transferred for a period of 15 years and it was agreed that after completion of 15 years the plaintiff would execute the registered sale deed of the same in favour of the defendants. The case of the defendants is that after the purchase of the suit land they raised an orchard over it by planting trees of Safeda etc. The defendants denied that they ever destroyed the crop sown by the plaintiff or interfered with the possession of the plaintiff over the suit land. 4. The plaintiffs/respondents herein filed replication to the written statement of the defendants/appellants, wherein, they 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 following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled to the relief of injunction, as prayed for? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the plaintiff is estopped by his own act and conduct to file the suit? OPD 5. Whether the valid agreement has been executed by the plaintiff with the defendant No. 1 on 17.8.1984, for exchange and sell the suit land? If so, its effect? OPD 6. 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 before the learned First Appellate Court, the first Appellate 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 assailing the findings recorded in its impugned judgment and decree by the learned first Appellate Court. 7. Now the defendants/appellants herein have instituted the instant Regular Second Appeal before this Court assailing the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 27.03.2006, 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 misread, misinterpreted and misconstrued the oral as well as documentary evidence of the parties especially agreement Ex. DA, statements of PW-1, PW-2, PW-3 and PW-4, which has materially prejudiced the case of the appellants? 2. Whether the suit for permanent prohibitory injunction is not maintainable when the respondents/plaintiffs are out of possession as per agreement Ex. DA? 3. Whether the judgment and decree of the learned first Appellate Court is perverse, who has reversed the judgment and decree of the learned trial Court without assigning good reasons? 4. Whether the respondents/plaintiffs have not come with clean hands and have suppressed the material facts while filing the present suit and as such not entitled for discretionary injunction? Substantial questions of Law No. 1 to 4: 8. In a suit for permanent prohibitory injunction, the solitary factum which stands enjoined to be clinchingly proven is qua the plaintiffs or the defendants respectively holding possession of the suit land, whereupon, this Court would stand constrained to accord or refuse the apposite relief qua the plaintiffs. The best evidence for underscoring the factum qua the plaintiffs holding possession of the suit land stands comprised in Ex. PA, exhibit whereof is the jamabandi qua the suit land pertaining to the year 1993-94, also stands comprised in the jamabandi for the year 1987-88 where-within in the apposite columns of ownership and possession, deceased plaintiff Mohan stands recorded to be holding its ownership and possession. A presumption of truth is enjoyed by entries held in the revenue record. Though, the presumption of truth enjoyed by revenue entries occurring in the relevant revenue record is displaceable, nonetheless, the efficacy of the reflections occurring in the relevant revenue record would stand displaced, only by clinching evidence, unraveling qua the defendants holding possession of the suit land. 9. For displacing the presumption of truth enjoyed by the revenue entries held in jamabandies comprised in Ex. 9. For displacing the presumption of truth enjoyed by the revenue entries held in jamabandies comprised in Ex. PA and PD, the defendants had placed reliance upon a report comprised in Ex.DW2/A proven by DW-2. However, the tenacity of the aforesaid report stands eroded by the factum of the application, in sequel whereto DW-2 visited the spot and thereafter prepared Ex.DW2/A standing not entered by him in the apposite records, though, he unveils in his deposition qua an obligation standing cast upon him to enter therein both the application as also his apposite report. However, even report Ex. DW2/A remained un-entered by DW-2 in the apposite Panchayat register. DW-2 also acquiesced to the suggestion put to him by the learned defence counsel while holding him to cross- examination qua after any visit standing made to the spot concerned by an official of the Panchayat, a copy of the report prepared in sequel thereto standing enjoined to be handed over to the Secretary of the Panchayat concerned, for facilitating the latter to safely maintain it in the Panchayat record. However, DW-2 after preparing Ex.DW2/A omitted to hand it over to the Secretary of the Panchayat concerned, for its being safely kept in the relevant records of the Panchayat concerned. Consequently, with Ex.DW2/A not emanating from any appropriate custody nor also when preceding thereto application, if any, as stood preferred before the Panchayat concerned by the defendants for thereupon constraining DW-2 to make a visit to the relevant spot, stood unentered in the relevant record, inevitably constrains an inference qua DW-2 holding leanings vis-a-vis the defendants thereupon his preparing a biased report qua the defendants rendering it to stand stained with an aura of unauthenticity, thereupon, any tenacity which it holds in displacing the presumption of truth enjoyed by the reflections held in Ex. PA and Ex.PD hence stand eroded. 10. Be that as it may, oral evidence, if any, for benumbing the presumption of truth held by the revenue entries wherein the predecessor-in-interest of the plaintiffs stands disclosed to be holding ownership besides possession of the suit land, stood communicated by DW-4. However, the deposition of DW-4 stands blunted of its efficacy arising from the factum of each aforesaid contradistinctively deposing qua the genre besides the number of fruit trees growing upon the suit land. However, the deposition of DW-4 stands blunted of its efficacy arising from the factum of each aforesaid contradistinctively deposing qua the genre besides the number of fruit trees growing upon the suit land. Given the contradistinct communications made by DW-2 in his report Ex.DW2/A and by DW-4 in his testifification qua the genre besides the number of fruit trees growing upon the suit land, efficacy of their respective oral testifications, for eroding the presumption of truth enjoyed by the revenue entries occurring in Ex.PA and PD, hence, gets shattered. Even otherwise the tenacity of the recitals held in Ex.DW2/A besides of the oral deposition of DW-4 also stands benumbed by the factum of the counsel for the defendants while holding PW-1 Durga Dass to cross-examination his purveying a suggestion to him qua 15 pear tress growing upon the suit land, suggestion whereof is an apparent acquiescence of the defendant qua the suit land only holding 15 trees whereas, both DW-4 and EX.DW2/A in stark contradistinction thereof in the respective testifications unveil qua trees more than 15 of pear also of other varieties growing upon the suit land wherefrom an inevitable inference is qua the defendants contriving the depositions of both DW-4 and DW-2. 11. In aftermath, the presumption of truth enjoyed by the apposite reflections occurring in Ex.PA and Ex.PD galvanize immense force also it stands concluded qua the apposite reflections occurring there-within unraveling qua the plaintiffs holding possession of the suit land, hence, acquiring conclusivity. 12. Even though, dehors the factum of Ex.DA standing proven or not, the trite factum of their evidently standing barred to effect a valid alienation of the suit land, execution whereof stood barred by existence at the time of its execution, a clog against its transfer unless the specifically statutorily prescribed period elapsing since the grant of the suit land as nautor uptill its complete alienation occurring on execution of a registered deed of conveyance, whereas, when visibly in sequel to the execution of Ex. DA no complete alienation of the suit land by execution of a registered deed of conveyance evidently occurring thereupon, Ex. DA assumes no emphatic probative force. DA no complete alienation of the suit land by execution of a registered deed of conveyance evidently occurring thereupon, Ex. DA assumes no emphatic probative force. Also when the defendants omitted to adduce any evidence qua theirs ever on elapse of the statutorily prescribed period of time since the grant of the suit land as nautor to the predecessor-in- interest of the plaintiff Mohan, calling upon the plaintiff to execute a registered deed of conveyance also renders Ex. DA to hold no probative vigour. Consequently no capitalization on the anvil of Ex. DA, can stand accorded to the defendants qua theirs hence proving qua theirs holding possession of the suit land. Preeminently when the granting or refusing the relief of permanent prohibitory injunction to the plaintiff rests upon theirs evidently holding or not holding the possession of the suit land, whereas, with the aforesaid trite factum of the plaintiffs holding possession of the suit land standing proven by unflinching evidence constituted in Ex. PA and Ex.PD, hence entitles them to avail a decree for injunction permanently restraining the defendants from interfering in the suit land. 13. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court is 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 questions of law are answered in favour of the plaintiffs/respondents and against the defendants/appellants. 14. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgment and decree rendered by the learned first Appellate Court is maintained and affirmed. All pending applications also stand disposed of. No order as to costs.