Kamal Kant (since deceased) through his LRs v. Chint Ram
2017-06-21
SURESHWAR THAKUR
body2017
DigiLaw.ai
JUDGMENT : Sureshwar Thakur, J. The plaintiffs instituted a suit against the defendants for declaration and 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 dismissed the appeal, whereupon, it concurred with the verdict recorded by the learned trial Court. In sequel thereto, the plaintiffs/appellants herein are driven to institute the instant appeal herebefore. 2. Briefly stated the facts of the case are that plaintiffs are owners in possession of suit land, as mentioned in para No.1 of the plaint. In the relevant record, name of Tej Ram (predecessor-in-interest of defendants No.1(i) to 1(v)) is wrongly shown in cultivating possession of the suit land, as “Tabe Marzi”, through Rewat Ram-co-sharer. He was never inducted into possession, either by the plaintiffs, or their predecessors-in-interest. In the jamabandi for the year 1991-92, certain entries have been made in the remarks column against the facts and behind the back of the plaintiffs, which are wrong and incorrect and are not binding upon the plaintiffs. The said wrong revenue entries came to their knowledge in the month of June, 1995, when they wanted to have family partition of the suit land and obtained a copy of jamabandi. The defendants No.2 and 3 have started interfering in the suit land. They got their names and of Sh. Tule Ram-deceased, entered in the revenue record against law and rules during the pendency of this suit. The said entry is not binding upon them., Hence, the suit for declaration with consequential relief of permanent injunction. 3. The defendants contested the suit and filed written statement. Defendant No.1 has filed separate written statement, wherein, he has taken preliminary objections qua limitation, cause of action, estoppel, and valuation of the suit. However, on merits, he has admitted the claim of the plaintiffs. 4. Defendants No.2 and 3 have filed separate written statement, wherein, they have taken, preliminary objections qua the suit being bad for non joining of necessary parties, maintainability etc. On merits, it is denied that the plaintiffs are owners in possession of the suit land and they are only intermeddler and have started interference during the pendency of the suit.
4. Defendants No.2 and 3 have filed separate written statement, wherein, they have taken, preliminary objections qua the suit being bad for non joining of necessary parties, maintainability etc. On merits, it is denied that the plaintiffs are owners in possession of the suit land and they are only intermeddler and have started interference during the pendency of the suit. It is contended that suit land was owned and possessed by Deity Thakur Ram Chander ji, and one Girdhari Lal was its Kardar. However, said Kardar had wrongly recorded himself as tenant of the suit land under the Deity. He was not competent to get himself recorded as tenant in possession of the suit land under Deity. After the death of Girdhari Lal, his son Rewat Ram and Smt. Janki widow of Saran Dass became Kardar of Deity. It is further contended that in the year 1940, defendant No.1 was inducted as tenant on the suit land by Deity through its Kardar. In the year 1943, defendant No.1 joined Army and relinquished his tenancy rights, and deity through its Kardar, inducted Sh. Tule Ram as tenant of the suit land. After the death of said Tule Ram, defendants have inherited his estate, including the suit land. Sh Tule Ram became its owner in possession under Section 4 of the H.P. Tenancy and Land Reforms Act, on appointed day and now, they are its owner in possession. It is further pleaded that name of Tule Ram was deleted from the column of possession by the Revenue Authorities by mistake and said mistake was corrected accordingly. It is further averred that in case it is held that Tule Ram was not tenant and after his death, defendants were not tenant, then Tule Ram had encroached suit land in October, 1943 and became its owner by way of adverse possession. The other averments made in the plaint denied and prayed to dismissed the suit, with costs. 5. The plaintiffs/appellants herein filed replication to the written statement of the defendants/respondents wherein, they denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 6. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiffs are owners in possession of the land in suit, as prayed for? OPP 2.
6. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiffs are owners in possession of the land in suit, as prayed for? OPP 2. Whether the plaintiffs are entitled to the relief of permanent injunction, as prayed for? OPP 3. Whether the suit is within limitation? OPP. 4. Whether the suit is not maintainable, as alleged? OPD 5. Whether the plaintiffs have no locus standi to file the suit? OPD 6. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD 7. Whether the suit is bad for non joinder of necessary parties? OPD 8. Whether the suit is collusive with the defendant No.1 as alleged? OPD. 9. Whether the plaintiffs are estopped from filing the suit by their act and conduct? OPD 10. Whether the defendants have become owners of the land in suit by way of adverse possession, as alleged? OPD 11. Relief. 7. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom by the plaintiffs/appellants before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 8. Now the plaintiffs/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 03.04.2006, this Court, admitted the appeal instituted by the plaintiffs/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the findings of the Courts below are dehors the evidence on record and against the documentary evidence? 2. Whether the findings of the Courts below are result of ignoring the additional written statement inspite of the judgment of this Court in FAO No.190 of 2003, decided on 14th November, 2003? Substantial questions of Law 2. 9. In the original plaint, the plaintiffs had arrayed therein one Tej Ram as a sole defendant.
2. Whether the findings of the Courts below are result of ignoring the additional written statement inspite of the judgment of this Court in FAO No.190 of 2003, decided on 14th November, 2003? Substantial questions of Law 2. 9. In the original plaint, the plaintiffs had arrayed therein one Tej Ram as a sole defendant. However, during the pendency of Civil Suit No. 130 of 1995, an application was instituted before the learned trial Court under the provisions of Order 1, Rule 10 CPC “by” Madho Ram and Ashok Kumar, wherein they sought their impleadment as co-defendants in the array of defendants, on anvil of theirs deriving an interest in the suit land “through” co-defendant No.1. The manner of derivation by them of an interest in the suit property, stood espoused to be embodied in the factum of one Tej Ram, initially impleaded in the original suit as a sole defendant, whereinwhom a preceding interest as a tenant upon the suit land stood bestowed by the Kardar of the Devta concerned (owner of the suit property), taking to join the army in the year 1943, thereupon, his being incapacitated to comply with the condition of the apposite grant, condition whereof stood comprised in his personally cultivating the suit land also his personally performing the ritual of making offerings of flowers to the Devta concerned, hence his meteing consent to the Kardar of Thakur Shri Ram Chander ji, for delivering possession of the suit land vis-a-vis the aforesaid also thereon tenancy rights hitherto bestowed upon the sole defendant standing subsequently consensually bestowed upon them. The application was allowed by the learned trial Court. In sequel, under its affirmative orders pronounced thereon, on 28.07.1999, the impleadment of the aforesaid in the suit, hence occurred. Thereupon, the plaintiffs proceeded to institute an additional plaint, wherein, he cast a challenge with respect to the validity of attestation of mutation under Ex. DA, mutation whereof stood recorded with respect to the suit land in the year 1995. The trial Court under its decision recorded on 31.10.2001, had dismissed the suit of the plaintiff. The aforesaid judgment and decree of dismissal of the suit of the plaintiffs, stood assailed by the plaintiffs by theirs carrying an appeal therefrom before the learned District Judge, Kullu.
The trial Court under its decision recorded on 31.10.2001, had dismissed the suit of the plaintiff. The aforesaid judgment and decree of dismissal of the suit of the plaintiffs, stood assailed by the plaintiffs by theirs carrying an appeal therefrom before the learned District Judge, Kullu. The learned District Judge, Kullu on 19.02.2003 allowed the appeal with a direction of its remand to the learned trial Court, for enabling the latter Court to make a decision afresh upon Civil Suit No. 130 of 1995 also in the decision recorded on 19.2.2003 by the learned first Appellate Court, the appellants/plaintiffs were directed to, in consonance with the orders rendered by the learned trial Court on 28.07.1999, on an application preferred before it by the litigants concerned under the provisions of Order 1, Rule, 10 of the CPC, application whereof stood allowed by the learned trial Court, hence file a fresh amended plaint before the learned trial Court. The aforesaid decision recorded by the learned District Judge, Kullu stood assailed before this Court by the aggrieved litigant(s). This Court allowed the apposite appeal. The significant portion of the order pronounced by this Court in FAO No. 190 of 2003, whereby it set aside the order recorded by the learned District Judge, Kullu whereby, it remanded the apposite Civil Suit to the learned trial Court, for its recording a decision afresh thereon, is embedded in the factum of the learned District Judge “not” correctly construing the additional plaint instituted by the plaintiffs before the learned trial Court in pursuance to the affirmative orders pronounced by the learned trial Court upon an application preferred before it, by the litigants concerned “seeking” their impleadment in the civil suit, given theres' being a necessary party thereto, “to not fall” within the statutory parlance of “an amended plaint”, whereas, the mere factum of its standing described as “an additional plaint” did not hence render it to not fall within the statutory signification of an amended plaint nor it stood stripped of its statutory label of it being an amended plaint. Also this Court had made a direction upon the learned District Judge for his deciding the civil appeal afresh in accordance with law. 10.
Also this Court had made a direction upon the learned District Judge for his deciding the civil appeal afresh in accordance with law. 10. The judgments and decrees pronounced by the learned Courts below, would stand infected with a vice on theirs ignoring the additional plaint “despite” the judgment of this Court rendered in FAO No. 190 of 2003 “only” when an incisive traversing of the relevant record makes a display that both the learned Courts below had not meted the appropriate reverence “to” the additional plaint instituted by the plaintiff “after” the order pronounced by the learned trial Court on 28.07.1999, whereby, it ordered for the impleadment in the “apposite suit” of Madho Ram and Ashok Kumar, as co-defendants No.2 and 3 therein. The test for determining, whether irreverence is meted to the aforesaid order, is comprised in the factum of the learned trial Court not proceeding to strike issues upon the completed pleadings with which it stood beset. The moot pivotal evidentiary anvil for gauging whether the learned trial Court had proceeded to hence mete deference to the completed pleadings with which it was beset, is embodied in the fact of its striking issues on 14.12.2000, subsequent to the institution of an additional plaint before it, by the plaintiffs on 23.08.1999. A perusal of the orders recorded on 14.12.2000 by the learned trial Court, whereby, it proceeded to strike the hereinafter extracted issues, “does” hence satiate the test that the learned trial Court had meted the apposite deference to the “completed” pleading with which it was thereat beset, completed pleadings whereof stood comprised in the additional plaint instituted therebefore by the plaintiffs, wherein, defendants No.2 and 3 stood arrayed as co-defendants in the suit, wherein also compatible pleadings in respect thereto stood also cast. Moreover, with the aforesaid added co-defendants also instituting a joint written statement to the additional plaint rendered hence the relevant pleadings to be completed in all respects, thereupon, facilitating the learned trial Court to validly strike issues. Issues struck by the learned trial Court read as under:- “1. Whether the plaintiffs are owners in possession of the land in suit, as prayed for? OPP 2. Whether the plaintiffs are entitled to the relief of permanent injunction, as prayed for? OPP 3. Whether the suit is within limitation? OPP. 4. Whether the suit is not maintainable, as alleged? OPD 5.
Whether the plaintiffs are owners in possession of the land in suit, as prayed for? OPP 2. Whether the plaintiffs are entitled to the relief of permanent injunction, as prayed for? OPP 3. Whether the suit is within limitation? OPP. 4. Whether the suit is not maintainable, as alleged? OPD 5. Whether the plaintiffs have no locus standi to file the suit? OPD 6. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD 7. Whether the suit is bad for non joinder of necessary parties? OPD 8. Whether the suit is collusive with the defendant No.1 as alleged? OPD. 9. Whether the plaintiffs are estopped from filing the suit by their act and conduct? OPD 10. Whether the defendants have become owners of the land in suit by way of adverse possession, as alleged? OPD 11. Relief.” Moreover, when evidence on the aforesaid issue(s) stood adduced, it is difficult to accept the contention raised by the counsel plaintiffs/appellants, that a critical disregard was made by both the learned Courts below to the additional plaint also the learned counsel for the plaintiff/appellant is disabled to contend that for want of reverence by them, to the additional plaint and also to the written statement instituted thereto, therebefore by the newly impleaded co-defendants, comprised in issues in consonance therewith being not struck, nor evidence thereupon standing not adduced, hence, the judgments and decrees assailed before this Court standing vitiated. Preeminently, also when the learned first Appellate Court “had”, while being seized of Civil Appeal No. 3 of 2002 on its being remanded to it, for its recording a decision afresh thereupon, had on anvil of evidence adduced on issues struck on the completed pleadings with which the learned trial Court was beset, proceeded to hence record findings thereupon, hence, its verdict cannot be faulted on any ground that hence it infringed the mandate of this Court recorded in FAO No.190 of 2003. Accordingly, substantial question of law No.2 is answered in favour of the respondents and against the appellants. Substantial question of law No.1. 11.
Accordingly, substantial question of law No.2 is answered in favour of the respondents and against the appellants. Substantial question of law No.1. 11. Both the learned Courts below had imputed sanctity to the jamabandi borne on Ex.P-10, jamabandi whereof pertains to the year 1952-53, wherein, in the ownership column, reflections occur with respect to Thakur Ram Chander Ji, being owner of the suit land and also with respect to one Smt. Janki wd/o Saran Dass and one Rewat Ram son of Girdhari being the Kardar of the Devta concerned. In column of possession thereof, Smt. Janki widow Saran Dass and Rewat Ram stood recorded as “maurusi” “through” Tej Ram son of Tule Ram as also through Tule Ram son of Dila Ram, latter whereof however stand reflected therein to be holding actual possession thereof as “tenants at Will”. The aforesaid reflection occurring in Ex.P-10 enjoy a presumption of truth, yet no evidence stands adduced for dislodging the aforesaid presumption of truth enjoyed by them, hence, sequelling, an inference that they acquire conclusivity. In the jamabandi for the year 1971-72, jamabandi whereof is comprised in Ex.DC, Smt. Janki Devi wd/o Saran Dass and Rewat Ram son of Girdari stand recorded therein as owners of the suit land and in the possessory column thereof Tej Ram son of Tule Ram and Tule Ram son of Dila Ram “through” Rewat Ram stand recorded therein to be in actual physical possession of the suit land, in the capacity of tenants at Will. Further more in the jamabandi for the year 1986-87, jamabandi whereof is comprised in Ex. DE, the name of Kamal Kant, Tushar, Susheel Kant, Sudhir Kant sons of Rewat Ram as also of Rewat Ram stand recorded as owners of the suit land and in possessory column whereof, Tej Ram son of Tule Ram and Tule Ram son of Dila Ram stand recorded “through” Rewat Ram to be in actual physical possession of the suit land, as tenants at will.
In the jamabandi for the year 1991-92 (Ex.P-7), reflections occur with respect to the name of Rewat Ram “through” Tej Ram son of Tule Ram, holding possession of the suit land “as a tenant at will”, whereupon, the name of Tule Ram son of Dila Ram, who was the predecessor-in-interest of Madho Ram, hence, remained omitted to be reflected therein qua his holding possession of the suit land as a “tenant at will”, yet no capital can be derived therefrom by the plaintiffs, significantly when Ex. DF, exhibit whereof comprises a report of the Patwari Halqua concerned makes a pronouncement qua omission of reflection therein of Tej Ram son of Dila Ram, hence, holding possession of the suit land in the appropriate capacity, being occasioned by inadvertence, hence order in respect thereof being recorded therein, order whereof remained unassailed, whereupon it acquires conclusivity. In sequel to Ex. DF, proprietary rights qua the suit land stood conferred upon Madho Ram and Ashok Kumar vide mutation comprised in Ex.DA, whereupon, it being inconsonance with the aforesaid reflections borne in the relevant jamabandi, renders it to, if permissble under law, hence, enjoy a binding valid force. 12. An incisive perusal of the aforesaid revenue records makes a vivid display that earlier Thakur Ram Chander ji stood recorded as owner of the suit land and Smt. Janki Devi and Rewat Ram stood recorded as Kardars of the Devta, as also, they stood recorded as Maurusi in the column of possession “through” Tej Ram son of Tule Ram and Tule Ram son of Dila Ram, latter whereof however stood recorded to be holding its physical possession as “tenants at will”. Since, the actual physical possession of the suit land in the capacity of “tenant at will” was held by the predecessors-in-interest of defendants No.2 and 3, hence, they alone stood entitled for title as owners, if permissible under law, qua the suit land being conferred upon them. Contrarily, with the predecessors-in-interest of the plaintiffs nor codefendant No.1 standing depicted in the apposite possessory column of the jamabandi to hold actual physical possession of the suit land, rendered them defacilitated to stake a claim qua conferment of proprietary rights thereto.
Contrarily, with the predecessors-in-interest of the plaintiffs nor codefendant No.1 standing depicted in the apposite possessory column of the jamabandi to hold actual physical possession of the suit land, rendered them defacilitated to stake a claim qua conferment of proprietary rights thereto. Also when co-defendant No.1 is averred by the newly impleaded co-defendants Madho Ram and Ashok to be incapacitated to comply with the conditions of the grant, whereunder he was bestowed with the capacity of a tenant at will upon the suit land, incapacity whereof is comprised in his being personally incapacitated to personally serve the deity concerned, personal incapacity whereof arose on his taking to join the Army in the year 1943, factum whereof remains uneroded of its vigour for want of evidence in rebuttal thereto being adduced. Thereupon, with evidently co defendant No.1 infracting the condition of the relevant grant made upon him with respect to the suit land, also begets an inference that the entries in the column of possession “of” jamabandi with respect to the suit land, wherein the predecessors-in-interest of codefendants Ashok Kumar and Madho Ram is shown to be holding actual physical possession of the suit land, hence, acquire absolute sanctity. However, no documentary evidence stands adduced on behalf of the plaintiffs to prove that the subsequent revenue records/jamabandi, wherein entries occur with respect to their apposite ownership or with respect to the apposite ownership of their predecessor-ininterest hence acquiring any validation , more so, when no valid order in suppression of previous entries, for hence imputing validation thereto stands adduced,. Consequently, for the reason aforesaid, the entries with respect to the ownership of the plaintiffs “hold no vigour”, in sequel, the plaintiffs cannot be held owners of the suit land. Contrarily, with reflections occurring in the revenue records of Tej Ram and Tule Ram son of Dila Ram (predecessors-in-interest of the Madho Ram and Ashok Kumar) holding physical possession of the suit land as “tenants at will” remaining unimpeached by adduction of evidence, for hence dispelling their probative worth, corollary whereof is that they acquire conclusivity. Consequently, the claim of the plaintiffs qua theirs holding possession of the suit land, as owners, is bereft of any sanctified vigour, especially when no documentary evidence in support thereof stands adduced.
Consequently, the claim of the plaintiffs qua theirs holding possession of the suit land, as owners, is bereft of any sanctified vigour, especially when no documentary evidence in support thereof stands adduced. In aftermath, when documentary evidence aforesaid, for eroding the worth of their espousal, holds conclusivity, resultantly, the plaintiffs/appellants do not on the purported ground of theirs holding possession of the suit land in the espoused capacity “of” theirs standing inducted thereon as “tenants at will” by the lawful owner, hence hold any right to stake any claim with respect to the suit property. Accordingly, substantial question of law No.2 is answered in favour of the respondents and against the appellants. 12. 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. 13. 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.