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2017 DIGILAW 500 (HP)

Kalyan Singh v. Mehar Singh

2017-05-11

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this appeal, the appellants have challenged the judgment and decree passed by the Court of learned District Judge, Sirmaur in Civil Appeal No. 80-CA/13 of 2001 dated 16.01.2002, vide which, learned appellate Court while accepting the appeal filed by the predecessor-in-interest of the present respondents, set aside the judgment and decree passed by the Court of learned Sub-Judge 1st Class, Court No. 2, Paonta Sahib in Civil Suit No. 196/1 of 1999, dated 26.05.2001, whereby learned trial Court had dismissed the suit for permanent injunction filed by the predecessor-in-interest of the present respondents. 2. Brief facts necessary for the adjudication of the present case are that predecessor-in- interest of the present respondents, namely, Telu Ram (hereinafter referred to as the plaintiff) filed a suit for permanent injunction on the grounds that he alongwith defendants and others were co-sharers in land comprised in Khata Khatauni No. 30/98 alongwith other lands and that the plaintiff in fact was in exclusive possession of Khasra No. 951 and 1458, measuring 1-2 bighas and 1-14 bighas, situated in Mauza Bali Koti, Tehsil Shillai, H.P. and pursuant to a partition, said Khasra numbers were allotted to him alongwith other Khasra numbers. Further, the case of the plaintiff was that defendants never remained in possession of the suit land, i.e. land comprised in Khasra No. 951, measuring 1-2 bighas and Khasra No. 1458, measuring 1-14 bighas, situated in Mauza Bali Koti, Tehsil Paonta Sahib, District Sirmaur nor were they allotted the suit land in partition. However, despite this, the defendants were forcibly trying to occupy the suit land, which was being resisted by the plaintiff. In May 1998, defendants had again tried to interfere in the suit land and if the defendants were not restrained from interfering in the same and from occupying the suit land forcibly, then the plaintiff would suffer irreparable loss. According to the plaintiff, he being in exclusive possession of the suit land pursuant to partition, had a prima facie case in his favour and on these bases, he filed the suit praying for decree of permanent injunction restraining the defendants from interfering and occupying the suit land. 3. The suit so filed was resisted by the defendants, who in their written statement specifically denied the factum of suit land being in exclusive possession of the plaintiff. 3. The suit so filed was resisted by the defendants, who in their written statement specifically denied the factum of suit land being in exclusive possession of the plaintiff. As per the defendants, one Jangli Ram was in possession over the suit land and the same was being cultivated by the defendants on behalf of Jangli Ram. Jangli Ram was duly recorded in revenue records in possession of suit land and after his death, defendants were in possession of the same, who had developed the suit land and had made it cultivable and the same was thus in cultivating possession of the defendants. According to the defendants, plaintiff never remained in possession of the suit land in any capacity. Entry in revenue records in the column of possession in favour of the plaintiff was stated to be false, fictitious and contrary to factual possession at the spot by the defendants. It was further the case of the defendants that it was in fact the plaintiff, who wanted to forcibly occupy the suit land with the assistance of his family members without any right, title and interest. Thus, on these bases, the suit of the plaintiff was resisted by the defendants. 4. On the basis of pleadings of the parties, learned trial Court framed the following issues: “1. Whether the plaintiff is in exclusive possession of Khasra No. 951 and 1458 having been given to him in partition, as alleged? OPP 2. If issue No. 1 is proved in affirmative, whether the plaintiff is entitled for the relief of injunction? OPP 3. Whether the plaintiff has no cause of action as alleged? OPP 4. Whether the suit is not maintainable as alleged? OPD 5. Whether the suit is not properly valued as alleged? OPD 6. Whether Jangli was in possession of suit land since beginning and therefore the defendants are coming in possession of Khasra Nos. 951 and 1458 as alleged? OPD 7. Whether the entries in the record to the contrary one false and fictitious as alleged? OPD 8. Relief. 5. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed:- "Issue No. 1 No. Issue No. 2 No. Issue No. 3 Yes. Issue No. 4 Yes. Issue No. 5 No. Issue No. 6 Yes. Issue No. 7 Yes. Relief. 5. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed:- "Issue No. 1 No. Issue No. 2 No. Issue No. 3 Yes. Issue No. 4 Yes. Issue No. 5 No. Issue No. 6 Yes. Issue No. 7 Yes. Relief Suit of plaintiff fails and is dismissed as per operative part of judgment." 6. Learned trial Court while dismissing the suit filed by the plaintiff held that in Jamabandi Ex. PA, Jangli was shown as one of the co-sharers in Khasra Nos. 951 and 1458 and the said position was also reiterated in Ex. PB, jamabandi for the year 1990-91 and Ex. PC, which was copy of order of partition in which defendants had been proceeded against ex parte. Learned trial Court also held that the said order was passed by the Assistant Collector on 08.09.1993, which demonstrated that at that time Jangli was alive. Learned trial Court also held that it was admitted factual position that father of plaintiff Shri Nanda and father of Jangli Shri Devi Singh were real brothers and they had joint land and after partition, Jangli also got the same. Learned trial Court also held that perusal of ocular testimonies of witnesses, especially the suggestions given to DW-1 and DW-2 demonstrated that it were the defendants, who in fact were in possession of the suit land on the spot. Learned trial Court also held that this was also evident from the statement of the plaintiff himself, who in cross-examination had stated that he wanted to have the possession of the suit land from the defendants. On these bases, it was concluded by the learned trial Court that this demonstrated that the suit land was in fact in possession of the defendants. It was further held by the learned trial Court that Ex. DA, Ex. DB and Ex. DC, which were jamabandis pertaining to the suit land for different years, demonstrated that Jangli was in possession of the suit land alongwith other co-sharers and the said fact could not be disputed by the plaintiff. Learned trial Court also held that it stood admitted by the plaintiffs that Jangli had died in the year 1998 and that there was nothing on record to demonstrate that the suit land had ever remained in possession of the plaintiff. Learned trial Court also held that it stood admitted by the plaintiffs that Jangli had died in the year 1998 and that there was nothing on record to demonstrate that the suit land had ever remained in possession of the plaintiff. It further held that plaintiff in fact himself had admitted in cross-examination that the suit land was not in his possession and yet he had filed the suit for injunction. On these basis, it was concluded by the learned trial Court that as plaintiff was not in exclusive possession qua the suit land, he was not entitled for relief of injunction. Learned trial Court also held that possession of the suit land was with the defendants and revenue entries were contrary to the factual position. 7. Feeling aggrieved by the dismissal of his suit, plaintiff preferred an appeal. Learned appellate Court vide judgment and decree dated 16.01.2002, while setting aside the judgment and decree passed by the learned trial Court, allowed the appeal. Learned appellate Court held that jamabandis for the year 1980-81 (Ex. DA), 1975-76 (Ex. DB) and 1970-71 (Ex. DC) suggested that Jangli was in possession over the suit land, but later jamabandis reflected that suit land was in possession of the plaintiff. Learned appellate Court referred to Ex. PA, copy of jamabandi for the year 1995-96 and Ex. PB, copy of jamabandi for the year 1990-91 to arrive at the said conclusion. It was further held by the learned appellate Court that it appeared that the said entry came to be corrected on the basis of some partition that took place amongst co-sharers, as was evident from copy of order dated 08.09.1993 (Ex. PC). It further held that mode of partition was prepared in 1990, in which suit land appeared to have been allotted to the plaintiff, though copy of mode of partition was not exhibited. On these basis, it was held by the learned appellate Court that from documentary evidence, it appeared that previously Jangli was in possession of the suit land, however, later on the same was allotted to the plaintiff. It further held that as presumption of truth was attached to jamabandis, therefore, it could be presumed that after the year 1990, plaintiff was in possession of the suit land. It further held that as presumption of truth was attached to jamabandis, therefore, it could be presumed that after the year 1990, plaintiff was in possession of the suit land. Learned appellate Court further held that the conclusion arrived at by the learned trial Court that plaintiff was not in possession of the suit land was evident from his cross-examination amounted to misreading of the statement of the plaintiff as learned trial Court had not read the statement of the plaintiff in its totality. The findings returned by the learned appellate Court in this regard are as under: “12. The learned trial Court has discussed the oral evidence adduced by the parties and made reference to the testimony of plaintiff Telu Ram, wherein in cross-examination he is stated to have admitted that he wants to take possession of the suit land. This suggestion led the learned trial Court to the conclusion that the plaintiff is not in possession of the suit land. However, this is not so. The learned trial Court has not read the entire evidence. The plaintiff has specifically stated that he is in possession of the suit land and this land never remained in possession of the defendants. Similar reply was given by him to the learned counsel for the defendants in cross-examination and it appears that the suggestion of the defendants’ counsel was denied by the plaintiff, but since the same suggestion was repeated twice, it was taken that the plaintiff has stated regarding his intention to take possession of the suit land through this suit. As such, I make reference to the exact words used in the cross-examination of the plaintiff. He has stated that it is incorrect that he intends to take forcible possession of the suit land. Thereafter, there is again a sentence that he wants to take possession from the defendants. To me there appears to be no full stop between two sentences and when both these sentences are read together, it appears that both the suggestions have been denied by the plaintiff. Thereafter, there is again a sentence that he wants to take possession from the defendants. To me there appears to be no full stop between two sentences and when both these sentences are read together, it appears that both the suggestions have been denied by the plaintiff. Moreover, there appears to be no reason as to why the plaintiff should have stated that he wants to take possession of the suit land when from the very beginning of his statement he has denied that the defendants are in possession of the suit land and he also denied the suggestion given by the learned counsel for the defendants that he wants to forcibly occupy the suit land.” 8. Learned appellate Court also held that in its view report of the Patwari and Kanungo was the best evidence but the defendants had not proved the same for the reasons best known to them, which amounted to withholding of the best evidence by defendants. On these bases, it was concluded by the learned appellate Court that whereas defendants had failed to prove their case that they were in possession of the suit land, plaintiff had duly proved the same and the case of the plaintiff was also supported by revenue entries. Learned appellate Court took note of the contention of the learned counsel for the appellant therein that even if it was taken that defendants were in possession of the suit land, they had no right to remain in possession over the same, as they had no concern with the same. On these bases, it was held by the learned appellate Court that as there was no material on record to suggest as to what right, title and concern defendants had with the suit land, it could not be said that they had any right to remain in possession over the same. Learned appellate Court concluded that neither the defendants could prove their possession over the suit land nor they were able to prove that they had any right, title and concern with the same. Learned appellate Court thus while setting aside the judgment and decree passed by the learned appellate Court, decreed the suit of the plaintiff for permanent prohibitory injunction restraining the defendants from interfering in the possession of the plaintiff with the suit land. 9. Learned appellate Court thus while setting aside the judgment and decree passed by the learned appellate Court, decreed the suit of the plaintiff for permanent prohibitory injunction restraining the defendants from interfering in the possession of the plaintiff with the suit land. 9. The judgment and decree so passed by the learned appellate Court stands assailed by way of present appeal. 10. This appeal was admitted on 10.05.2002 on the following substantial question of law: “Whether the findings of reversal recorded by the learned District Judge are de hors the evidence on record, based on conjectures and surmises? 11. I have heard the learned counsel for the parties and have also gone through the records of the case as well as the judgment passed by both the learned Courts below. 12. A perusal of the averments made in the plaint demonstrates that the case put forth by the plaintiff was that he was in exclusive possession of the suit land which stood allotted to him on partition alongwith other Khasra numbers, meaning thereby the factum of defendants being co-sharers alongwith the plaintiff over the suit land has not been disputed by him, but as per the plaintiff, it was he who was in exclusive possession of the same pursuant to a partition in which the suit land came to his shares. Learned trial Court disbelieved the version of the plaintiff that it was he who was in possession over the suit property. While disbelieving the version of the plaintiff, learned trial Court besides taking into consideration the other evidence on record, it also relied upon the statement of the plaintiff. Learned appellate Court while setting aside the judgment passed by the learned trial Court held that learned trial Court had concluded the factum of plaintiff not being in possession over the suit land by misconstruing and misreading his statement, whereas as per learned appellate Court no such conclusion could have had been arrived at on the basis of the statement of the plaintiff, who had entered the witness box as PW-1. 13. In order to appreciate as to whether the findings returned by the learned trial Court in this regard are borne out of the records or the findings returned by the learned appellate Court are supported by the records, this Court has minutely scrutinized the testimony of the plaintiff alongwith other evidence on record. 13. In order to appreciate as to whether the findings returned by the learned trial Court in this regard are borne out of the records or the findings returned by the learned appellate Court are supported by the records, this Court has minutely scrutinized the testimony of the plaintiff alongwith other evidence on record. A perusal of the statement of PW-1 Telu Ram demonstrates that in his examination-in-chief, he deposed that Khasra Nos. 951 and 1458 were in his possession and the same never remained in possession of the defendants and that defendants were interfering with his peaceful possession since the years 1997-1998 and the intent of the defendants was to forcibly grab the suit land. Now, his cross-examination demonstrates that he has deposed therein as under: “Mai waadgrast bhumi ka pratiwadigan se kabza lena chahta hun.” This line is preceded by the following line: “Yeh galat hai ki mai aaraji mutnaja par jabardasti kabza karna chahta hun.” 14. Further, both these sentences are complete sentences in themselves and in my considered view, there cannot be any confusion that it has been so stated in his cross-examination by the plaintiff that he wanted the possession of the suit land from the defendants. Therefore, the conclusion arrived at by the learned appellate Court that the finding returned by the learned trial Court to the effect that the plaintiff had admitted in his cross-examination that he wanted the possession of the suit land from the defendants was incorrect finding, is a perverse conclusion. In my considered view, it is the learned appellate Court which has misread and misconstrued the statement of PW-1 and not the learned trial Court. 15. Learned appellate Court has tried to read something in the cross-examination of the plaintiff, which does not exist in the same. It has to be remembered that the statements of the witnesses have to be read as they are and the Courts can neither add anything into it nor the Courts can subtract anything from the same. This basic principle apparently had been ignored by the learned appellate Court while appreciating the statement of the plaintiff. 16. As I have already mentioned above, the claim put forth by the plaintiff in the plaint was that he alongwith defendants were co-sharers qua Khata Khatauni No. 30/98 and that Khasra Nos. This basic principle apparently had been ignored by the learned appellate Court while appreciating the statement of the plaintiff. 16. As I have already mentioned above, the claim put forth by the plaintiff in the plaint was that he alongwith defendants were co-sharers qua Khata Khatauni No. 30/98 and that Khasra Nos. 951 and 1458 had come in exclusive possession of the plaintiff pursuant to a partition. Though partition has been pleaded by the plaintiff, however, he has failed to prove that any partition took place intra the co-sharers and in partition suit land came into the possession of the plaintiff. In fact, a perusal of the statement of plaintiff in the Court as PW-1 demonstrates that there is not even a murmur about the plaintiff having come in exclusive possession of the suit land by virtue of a partition. Now, in this background, when we peruse the judgment passed by the learned appellate Court, it demonstrates that the conclusions which have been arrived at by the learned appellate Court in favour of the plaintiff are based on conjectures and surmises, rather than on evidence placed on record by the parties. In para-11 of the judgment, learned appellate Court has held that whereas jamabandis Exhibits DA, DB and DC pertaining to the year 1980-81, 1975-76 and 1970-71, respectively demonstrated that the suit land was in possession of Jangli, but latter jamabandis Ex. PA and PB for the year 1995-96 and 1990-91, respectively demonstrated that the suit land was in possession of plaintiff and it appeared that said entries came to be corrected on the basis of “some partition that took place among the co-sharers.” Learned appellate Court further held that “mode of partition was prepared in 1990 in which suit land appears to have been allotted to the plaintiff, though copy of mode of partition has not been exhibited.” On these bases, it was concluded by the learned appellate Court that it appeared that previously Jangli was in possession of the suit land, but later on the same was allotted to the plaintiff. In my considered view, the findings so returned by the learned appellate Court to arrive at the conclusion that the plaintiff was in possession over the suit land are not sustainable in the eyes of law. In my considered view, the findings so returned by the learned appellate Court to arrive at the conclusion that the plaintiff was in possession over the suit land are not sustainable in the eyes of law. This is for the reason that the findings which are to be returned by the Court of law have to be based on evidence which is available on record of the case and not on conjectures and surmises. Admittedly, as has also been held by the learned appellate Court, no partition proceedings have been proved by the plaintiff on record. It is settled principle of law that he who alleges, has to prove. In the present case, it was the case of the plaintiff that he was in exclusive possession over the suit land which came into his share by virtue of a partition and thus, the onus to prove the partition was on the plaintiff. However, neither the plaintiff proved the factum of partition nor he proved that the suit land had fallen in his exclusive share on the basis of a partition. Plaintiff was not able to demonstrate that he otherwise was in exclusive possession over the suit land. 17. In addition to the plaintiff having stated in his cross-examination that he wanted the possession of the suit land from the defendants, the factum of his not being in possession over the suit land is otherwise also borne out from other material on record. Plaintiff has not led any ocular evidence except his bald testimony to substantiate and prove that either any partition took place in which the suit land came to his share or that he was otherwise in possession over the suit land. On the other hand, the defendants besides the testimony of defendant Kalyan Singh, have also led evidence of Mani Ram (DW-2), who has deposed in the Court that the plaintiff and defendants were known to him and that the suit land was in possession of Kalyan Singh, who was cultivating the same and that the suit land was not in possession of the plaintiff. In his cross-examination, this witness denied the suggestion that it was the plaintiff who used to cultivate the suit land on behalf of Jangli. In his cross-examination, this witness denied the suggestion that it was the plaintiff who used to cultivate the suit land on behalf of Jangli. Further, a perusal of the statement of defendant Kalyan Singh, who entered the witness box as DW-1, demonstrates that this witness has categorically stated that the suit land was in possession of Jangli, which was being cultivated by the defendants. This witness also deposed that Jangli was putting up with them and that the plaintiff in connivance with Patwari, had manipulated revenue entries in his favour. This witness also deposed that Jangli died about two years back and after his death, the suit land was in possession of the defendants. In his cross-examination, this witness categorically denied the suggestion that suit land was either in possession of the plaintiff or it was being cultivated by him. He also denied the suggestion that defendants had forcibly tried to take possession over the suit land, as was the case put forth by the plaintiff. 18. Be that as it may, the fact of the matter remains that as it was the plaintiff who had filed a suit praying for a decree of injunction, onus was upon him to have had proved his case. In my considered view, the findings returned by the learned trial Court to the effect that the plaintiff had failed to demonstrate that he was in possession over the suit land are correct findings, which are duly borne out from the records of the case. Similarly, the findings to the contrary returned by the learned appellate Court are perverse, as they are not borne out from the records of the case and further the conclusions which have been arrived at by the learned appellate Court are based on conjectures and surmises, rather than the evidence available on record. Substantial question of law is answered accordingly. 19. Therefore, in view of the discussion held above, this appeal succeeds. Judgment and decree passed by the Court of learned District Judge, Sirmaur in Civil Appeal No. 80-CA/13 of 2001, dated 16.01.2002 are set aside, whereas the judgment and decree passed by the Court of learned Sub Judge 1st Class, Court No. 2, Paonta Sahib in Civil Suit No. 96/1 of 1999, dated 26.05.2001 are upheld. Miscellaneous applications, if any, stand disposed of. No order as to costs.