Bhagwan Dass v. Roshan Lal (since deceased) through his legal heirs
2017-07-28
SURESHWAR THAKUR
body2017
DigiLaw.ai
Sureshwar Thakur, J. The instant appeal stands directed against the concurrently recorded verdicts of both the learned Courts below, whereby, they decreed the suit of the plaintiff, wherein, he claimed a declaratory decree in respect of the suit land being pronounced upon the defendants. In sequel thereto, defendant No.1/appellants herein is driven to institute the instant appeal herebefore. 2. Briefly stated the facts of the case are that the plaintiff claims himself owner in possession to the extent of 1/3rd share of the suit land of Khata No. 74 min, Khatauni No.113, Khasra No.1390/1350, Tika Ropari, Mouza Lohdar, Tehsil Barsar, District Hamirpur, H.P. and challenged contrary revenue entries not showing him in possession as owner to be illegal, null and void and not binding on him. Also sought injunction against the defendants from dispossessing him from the suit land qua his 1/3rd share. It was claimed by the plaintiff that he got 1/3rd share in the suit land by way of registered gift deed dated 18.11.1974 from owner Radhan Devi widow of Shri Milkhi Ram including share in the Shamlat. After gift, he became owner of the share of said Radhan Devi including her share in the Shamlat and became owner with other co-sharers, but the revenue entries reflecting him as such, are wrong. 3. The defendants contested the suit and filed written statement, wherein, it was claimed that defendant No.1 had sold his share in the suit land to defendants No.2 and 3 and plaintiff is bound by the same. However, execution of gift deed dated 18.11.1974 by Smt. Radhan in favour of the plaintiff is admitted to be correct, but averred that the plaintiff is out of possession of the suit land which is in [possession of the defendants. As the plaintiff is out of possession so his suit is not maintainable. Defendant No.1 being legal heir of Radhan Devi was competent to sell land to defendants No.2 and 3 which is valid and binding upon the plaintiff. Possession of defendants NO.2 and 3 is continuous. After purchasing, defendants No.2 and 3 constructed shops on the suit land. Objections qua maintainability, cause of action, locus standi, limitation and valuation were also raised. 4. 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 the owner in possession of the suit land, as alleged?OPP. 2.
Objections qua maintainability, cause of action, locus standi, limitation and valuation were also raised. 4. 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 the owner in possession of the suit land, as alleged?OPP. 2. Whether the entries showing defendants No.2 and 3 in the column of possession as vendees in the revenue record are wrong, illegal, null and void, as alleged?OPP. 3. Whether the plaintiff is entitled to the relief of injunction, as prayed for?OPP. 4. In case, the plaintiff is not found in possession of the suit land, whether he is entitled to possession of the same by way of alternative relief, as alleged?OPP. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the plaintiff has no cause of action?OPD. 7. Whether the plaintiff has no locus standi to sue?OPD. 8. Whether the suit is barred under limitation Act?OPD. 9. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD. 10. Whether the defendants No.2 and 3 are the bonafide purchasers as alleged, if so, its effect?OPD. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the defendant(s)/appellant herein before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 6. Now defendant No.1/appellant herein, has instituted the instant Regular Second Appeal before this Court, for assailing the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on 25.05.2006, this Court, admitted the appeal instituted by defendant No.1/appellant against the impugned judgment and decree, on the hereinafter extracted substantial questions of law:- 1. Whether the two Courts below have misread and misconstrued the gift deed executed by Radhan Devi in favour of respondent-plaintiff? Substantial question of Law No.1: 7. One Radha Devi under a gift deed borne on Ex.PW1/A, gift deed whereof was executed on 18.11.1974, proceeded to thereunder bestow her share in the joint land she held with the defendants vis-a-vis the plaintiff also thereunder she bestowed her share in Shamlat land upon the plaintiff.
Substantial question of Law No.1: 7. One Radha Devi under a gift deed borne on Ex.PW1/A, gift deed whereof was executed on 18.11.1974, proceeded to thereunder bestow her share in the joint land she held with the defendants vis-a-vis the plaintiff also thereunder she bestowed her share in Shamlat land upon the plaintiff. The validity of execution of gift deed remains not contested by the defendants, rather the validity of apposite bestowment(s) by the aforesaid donor of her share in shamlat land is under contest. The mutation attested by the revenue officer concerned, in sequel to execution of Ex.PW1/A, mutation whereof is borne on Ex.D-5, though unravels, of it, therein recording the factum of mutation standing attested in respect of the land owned and possessed by Radha Devi in the joint holdings, in respect whereof she executed Ex.PW1/A vis-a-vis the plaintiff, yet it does not therein record the fact of the share of Radhan Devi held in the Shamlat land, share whereof also she under Ex. PW1/A bestowed it upon the plaintiff, being hence also sanctioned to be mutated in his favour. Consequently, with the revenue record omitting to make a display in respect aforesaid, thereupon, the plaintiff was led to institute a suit for a declaratory decree being pronounced upon the revenue officers, for theirs making incorporation(s) in the revenue record(s) appertaining to the suit land, with reflections therein of 1/3rd share held by Radhan Devi in Shamlat land, in respect whereof, she conferred bestowments under Ex.PW1/A upon the plaintiff, hence being borne therein. 8. As aforestated with the validity of execution of Ex.PW1/A not being contested by the defendants, thereupon, it was incumbent upon the revenue officers concerned to while in Ex.D-5, attesting mutation on anvil of Ex.PW1/A also record a recital therein in respect of sanction being also accorded vis-a-vis 1/3rd share of Radhan Devi in Shamlat land, being mutated vis-a-vis the plaintiff. Contrarily, the revenue officers concerned while under Ex.D-5, attesting mutation on anvil of Ex.
Contrarily, the revenue officers concerned while under Ex.D-5, attesting mutation on anvil of Ex. PW1/A, omitted to hence mete the fullest reverence to the recitals borne in the undisputed validly executed gift deed comprised in Ex.PW1/A. The aforesaid omission(s), in the revenue records appertaining to Shamlat land, wherein Radha Devi held 1/3rd share remained palpably unrectified, though, Radhan Devi as divulged by Jamabandi prepared in respect of the suit land, jamabandi whereof is comprised in Ex.P-1, is reflected therein to along with other co-owners in Shamlat land (s) hence hold possession thereof. The gross error committed by the Revenue Officers concerned comprised in theirs omitting to mete the fullest reverence to Ex.PW1/A, comprised in theirs not in Ex. D-5, incorporating the recitals aforesaid, displaying of sanction being accorded in respect of 1/3rd share of Radhan Devi in Shamlat land, share whereof also she had under Ex.PW1/A bestowed vis-a-vis the plaintiff, when apparently has sequeled concomitant non reflection(s) of the name of the plaintiff in the apposite jamabandi appertaining to Shamlat land, thereupon this Court is inevitably constrained to order for an apposite correction of the revenue records. Also reflections, if any, in the revenue record pertaining to the Shamlat land, wherein, there is omission of display of the name of the plaintiff in substitution of Radhan Devi, though enjoy a presumption of truth, yet in the awake of the undisputed valid execution of Ex.PW1/A, thereupon the presumption attached to the reflections occurring in the revenue record appertaining to Shamlat land, hence stands eroded. Furthermore, with the validity of execution of Ex.PW1/A remaining not contested also with no evidence being adduced that at the time contemporaneous to the execution of Ex.PW1/A, the plaintiff along with the land owned by the donor not taking possession of the share of the donor in Shamlat land besides with no evidence being adduced that during her life time, the donor rather bestowing possession of Shamlat land upon the defendants, thereupon, it is to be concluded that the plaintiff at the time contemporaneous to the execution of Ex.PW1/A, his along with the land owned by the plaintiff, bestowment(s) whereof upon him occurred under Ex.PW1/A also taking possession of the share of Radhan Devi in Shamlat land, land(s) whereof along with the share of the donor in the joint holdings stood under Ex.PW1/A gifted to him. 9.
9. The above discussion unfolds the fact that the conclusions as arrived at by both the learned Courts below being based upon a proper and mature appreciation of evidence on record. While rendering their findings, both the learned Courts below have not excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the plaintiff/respondent(s) herein and against defendant No.1/appellant herein. 10. In view of the above discussion, the present Regular Second Appeal is dismissed and the impugned judgment(s) and decrees are maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.