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2017 DIGILAW 972 (HP)

Ved Ram v. Atma Ram

2017-08-29

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. 1. The present regular second appeal is maintained by the appellant, challenging the judgment and decree, dated 01.06.2002, passed by the learned District Judge, Kullu, H.P., in Civil Appeal No. 6 of 2002, whereby the judgment and decree, dated 22.11.2001, passed by the then sub-Judge, 1st Class, Manali, District Kullu, H.P., in Civil Suit No. 17 of 2001, was affirmed. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the plaintiff, who is respondent No. 1 before this Court (here in after to be called as “plaintiff”), has maintained a suit against the defendants, who is appellant before this Court (here-in-after to be called as “the defendants”) for declaration and injunction that he is owner-in-possession of the suit land, comprising Khasra Nos. 55, 57, 60, 359, 367, 368, 370, 382, 428, Kitas 9, Khata/Khatauni No. 25/30, old Khasra Nos. 642, 644, 647, 635, 599 min, 584, 588, area measuring 5-12-0 bighas (0-45-17 hectares), situated at Muhal Defri, Phati Riara, Kothi Baragarh, Tehsil Manali (here in after to called as “the suit land”) with a further prayer that sale deed, Ext. PA, dated 06.01.2001, executed by Maya Dass in favour of Ved Ram for a consideration of Rs. 80,000/- (Rupees eighty thousand) to the extent as it relates to the aforesaid Khasra numbers, owned and possessed by the plaintiffs is null and void and having no force. Further any mutation passed on the basis of aforesaid sale deed is also liable to be modified and be modified. It is further averred that suit land comprised in Khata/Khatauni No. 10/14 to 19, measuring 10-19-0 bighas of Phati Riara, as per jamabandi for the years 1966-67 was entered in joint ownership of Shiam Chand, predecessor-in-interest of defendants No. 3 to 6, Maya Dass, Mehar Chand, Chanan Singh, Bishan Dass, defendants No. 2, 7 to 9, 10 & 12 and one Utti, predecessor-in-interest of defendants No. 7 to 9. However, as per family partition, the owners were in separate and specific possession of the land and thereafter as per their respective shares, they have been alienating the same. However, as per family partition, the owners were in separate and specific possession of the land and thereafter as per their respective shares, they have been alienating the same. The plaintiff has claimed that he was tenant in possession over the suit land, under one Smt. Poshi, defendant No. 11, on payment of rent and subsequently vide mutation No. 859, dated 28.08.1991, got proprietary rights, under Section 104 of the H.P. Tenancy and Land Reforms Act (here in after to be called as “the Act”), since than he is absolute owner-in-possession of the suit land and defendants had no right, title or interest over the suit land. It is further averred that defendant No. 2, in connivance with defendant No. 1, by making wrong revenue entries, executed a fictitious registered sale deed, dated 06.01.2001, showing therein to have sold 25/72 share of the suit land to defendant No. 1 for a consideration of Rs. 80,000/- (Rupees eighty thousand), on the basis of which, mutation No. 13, was sanctioned in favour of defendant No. 1. The sale deed is illegal and not binding upon the plaintiff and defendants be restrained from causing any interference in the peaceful possession of the plaintiff on the suit land. 3. The defendants, contested and resisted the suit of the plaintiffs by taking preliminary objections, viz., maintainability and that the plaintiff is not in possession of the suit land, neither tenant nor inducted as a tenant by any of the owner of the suit land, suit is time barred by resjudicata and under Rule 2, Order 2 CPC and suit was not properly valued for the purpose of court fee. On merits, it has been averred that the entries in the revenue record in favour of the plaintiff are fictitious, baseless, without material and were recorded behind the back of defendants, without their knowledge. It has been further averred that the defendants are joint owners-in-possession of the suit land and no family partition had ever been affected among the co-owners of the suit land, for cultivatory purpose and they are in separate possession without partition. Defendants further declared that they had never inducted the plaintiff as tenant and mutation No. 859, dated 28.08.1991 is baseless and wrong. It was denied that defendant No. 2 has executed fictitious and illegal sale deed in favour of defendant No. 1, Maya Dass. Hence suit of the plaintiff deserves dismissal. Defendants further declared that they had never inducted the plaintiff as tenant and mutation No. 859, dated 28.08.1991 is baseless and wrong. It was denied that defendant No. 2 has executed fictitious and illegal sale deed in favour of defendant No. 1, Maya Dass. Hence suit of the plaintiff deserves dismissal. 4. By filing replication, the plaintiff re-asserted his case. 5. The learned Trial Court on 16.07.2001 framed the following issues for determination and adjudication: “1. Whether the plaintiff is owner in possession of suit land as alleged? OPP 2. If issue No. 1 is proved in affirmative, whether the plaintiff is entitled for the relief of declaration as alleged? OPP 3. Whether the sale deed dated 06.01.2001 is liable to be declared null and void to extent to share of defendant No. 11 etc. etc., as allged? OPP 4. Whether the plaintiff is entitled for relief of injunction, as alleged? OPP 5. Whether the suit is not maintainable as alleged? OPD 6. Whether the suit of plaintiff is hit by the provision of resjudicata, as alleged, if so its effect? OPD 7. Whether the suit of plaintiff is hit by the provision of order 2, Rule II CPC, as allged, if so its effect? OPD 8. Whether the suit of plaintiff is time bar, as allged? OPD 9. Whether the suit of plaintiff is not properly valued for purpose of court fee jurisdiction, if so, what is proper value of suit and its effect? OPD 10. Whether the suit of plaintiff has got no cause of action, as alleged? OPD 11. Whether the suit of plaintiff is stopped to file present suit by his act, conduct and deeds, as alleged, if so its effects? OPD 12. Relief.” 6. After deciding issues No. 1 to 4 in favour of the plaintiff, issue No. 9 in favour of the defendants and issues No. 5 to 8, 10 & 11 against the defendants, the learned Court below decreed the suit of the plaintiff by further directing the plaintiff to pay deficient Court fee within stipulated time, which the plaintiff has deposited before the learned Court below within prescribed time and so the decree became operative in favour of the plaintiff and against the defendants. Thereafter the defendants maintained an appeal before the learned first Appellate Court, which was dismissed. Thereafter the defendants maintained an appeal before the learned first Appellate Court, which was dismissed. Hence the present regular second appeal, which was admitted for hearing on the following substantial question of law: “1. Whether the co-owner can induct a tenant over a joint land without the consent of other co-owners affecting materially their share, when the partition of the joint holdings though pleaded but not proved? Merely the fact that one of the co-owner was recorded in possession of joint holdings could entitle such co-owner to induct the tenant over the entire joint holdings without the consent of the owners? Is such tenancy, if proved, binding on other co-owners? 2. Whether both the courts below have wrongly recorded the findings excluding the jurisdiction of the civil court to go into the question of title of the plaintiff-respondent by relying upon the mutation of the conferment of proprietory rights, which on the fact of it depict that the same was neither attested by the competent authority nor the prescribed procedure was followed in accordance with the law and the Rules? Could such mutation be relied upon as a foundation of title of the plaintiff-respondent when the plaintiff-respondent failed to prove the initial contract of tenancy and the basis of the entries in the revenue records showing him to be a tenant particularly when the person in whom the plaintiff-respondent claim the tenancy right, deny such relationship. 3. Whether the findings rendered by both the courts below that Shri Maya Dass was not having any share in the suit property are erroneous and perverse being against the entries in the revenue records thereby declaring the sale deed executed in favour of the defendant-appellant to be illegal, null and void? Are not such findings based on misreading of material evidence and misinterpreting the entries in the revenue records? 7. Mr. Bhupinder Gupta, learned Senior Counsel appearing on behalf of the appellant/defendants has argued that the judgments and decrees, passed by the learned Courts below are against the law, there is nothing on record with respect to payment of rent and Rs. 5/-, which is mentioned as Mamla, cannot be termed to be rent as it is required to be paid to the State. 5/-, which is mentioned as Mamla, cannot be termed to be rent as it is required to be paid to the State. He has further argued that there is no agreement otherwise also proving the payment of rent or creation of the tenancy, in these circumstances the very basis of the claim of the plaintiff goes and so the suit would have been dismissed, but the learned Courts below without appreciating the facts, which has come on record to its true perspective and by misinterpreting the documents, including revenue record produced before the learned trial Court, has given its findings, which are contrary to law and liable to be set aside. He has further argued that the AC, Second Grade has no powers to confer the proprietory rights on the tenants. On the other hand, Mr. Sanjeev Kuthiala, learned counsel for the respondents/plaintiff has argued that the judgments and decrees, passed by both the learned Courts below are after appreciating the facts, which has come on record to its true perspective and needs no interference. In rebuttal, Mr. Bhupinder Gupta, learned senior counsel has argued that the revenue entries in favour of the respondents/plaintiff are duly rebutted and so the plaintiff could not derive any benefit from the revenue entries which are not correct, as there is no order or agreement with regard to tenancy that started in the name of the plaintiff. 8. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 9. PW-1, Atma Ram, in his examination-in-chief, has deposed that he is owner-in-possession of the suit land, measuring 5-12-0 bighas, in which, there are 7 fields. He has further deposed that earlier they were tenant-at-will to one Poshi, defendant No. 11 and paying rent of Rs. 5/- yearly for two crops. He stated that before him, his father was tenant on the suit land and when his father died he was 15 years of age. After the death of his father he has been paying rent and he used to pay the rent after visiting the house of Poshi, however, in the year, 1991, the ownership rights were conferred upon him under the Act. He has further stated that three months ago Ved Ram has threatened him that he should not spray in the fields, as Ved Ram has purchased the land. He has further stated that three months ago Ved Ram has threatened him that he should not spray in the fields, as Ved Ram has purchased the land. He has deposed that he came to know about the sale of the land three months thereafter and after getting papers from the Patwari, he filed the suit. In his cross-examination, he has deposed that Poshi was the only owner of the suit land and it is wrongly shown in the revenue papers that she was one of the co-owner. He has further deposed that the partition took place somewhere in summers and there was maize crop standing in the fields at that time. He has denied the suggestion that at that time, Poshi has sown maize crop. He has stated that Poshi is widow of Dhani Ram. He has further stated that he used to pay the rent in presence of Teja Singh and Chet Ram. He feigned ignorance about the fact that earlier the defendants were ruling Bara Garh. He has denied that Maya Dass was having right to sold his land. He has further denied that earlier he has filed the suit for adverse possession, with respect to this suit land. 10. PW-2, Meen Chand, has deposed that the land is owned and possessed by plaintiff, Atma Ram and he has seen the plaintiff in possession of the land since childhood. He has further deposed that the suit land is approximately 5 ½ bighas and his land is adjacent to the suit land. In his cross-examination, he has given detailed description of the land, though he could not tell the khasra numbers of the suit land. He has admitted that he is having relations with the plaintiff, however this witness has admitted that he has come to the Court to help the plaintiff, but he denied that he is deposing falsely. The plaintiff through his counsel has also tendered in evidence copy of jamabandi, Ext. P-1, copy of mutation, Ext. P-2 and copy of jamabandies, Ext. P- 3 to P-8. 11. To rebut this evidence, the defendants have examined DW-1, Ved Ram, who has deposed that the land in dispute is having 9 fields and owners of the land are Poshi, Mehar Chand etc and before he purchased the land, it was jointly owned by Maya Dass, Poshi etc, he has placed on record the sale deed, Ext. 11. To rebut this evidence, the defendants have examined DW-1, Ved Ram, who has deposed that the land in dispute is having 9 fields and owners of the land are Poshi, Mehar Chand etc and before he purchased the land, it was jointly owned by Maya Dass, Poshi etc, he has placed on record the sale deed, Ext. PA, executed in his favour and stated that Poshi has sold her share to him and he has sold the same to Karam Chand, son of Sh. Salig Ram, resident of Mandi and at that time, the plaintiff has made no objection and he was tenant on the suit land. He has further admitted that he sold the land about 5 to 7 years ago. In his cross-examination, he has denied that the suit land is having 7 fields. He has feigned ignorance about the khasra numbers of the land and he could not give any description of the fields. He has stated that he did not know that in the year, 1991, the ownership rights were conferred upon the plaintiff. He has denied that Poshi has never sold any land to him, however he has stated that the plaintiff never remained in possession of the suit land. He has further stated that he paid Rs. 1300/- as stamp duty and full consideration amount of Rs. 80,000/- to Maya Dass. He has denied that Maya Dass was not owner-in-possession of the suit land. 12. DW-2, Jeet Ram, has deposed that he knows the parties as they are in his relations and the suit land is 5 ½ bighas to 6 bighas which is 1 ½ Kms away from his house. He has further deposed that suit land is having 8 to 9 fields and Maya Dass has cultivated Saag on the suit land. He stated that in February, March he has also planted the plants for Ved Ram. He has further stated that Atma Ram has never cultivated the suit land. He has deposed that the father of Atma Ram died before his childhood. In his cross-examination, though he has admitted the relationship with the Atma Ram, however he could not tell that Atma Ram is his uncle or someone else, as their relations are from the time of his father. He admitted that he is relative to the defendants and he has come to the Court to depose their favour. In his cross-examination, though he has admitted the relationship with the Atma Ram, however he could not tell that Atma Ram is his uncle or someone else, as their relations are from the time of his father. He admitted that he is relative to the defendants and he has come to the Court to depose their favour. He has denied that earlier Nokhu and thereafter Atma Ram was a tenant over the suit land. He has admitted that he never cultivated the above land on behalf of Maya Dass and Ved Ram. He has further stated that adjacent to the suit land, there are land of Ved Ram and Maya Dass. 13. DW-3, Chura Mani, has deposed that he is owner-in-possession of the suit land and the land is still joint. He has further deposed that he neither kept the father of Atma Ram as tenant on the suit land nor they paid any rent to him. He has further stated that owners are cultivating the land through labourers. In his cross-examination, he has denied that earlier Nokhu and thereafter Atma Ram was tenant. He has admitted that in the year, 1991, after coming into force the Act, the land was mutated in the ownership of Atma Ram. 14. DW-4, Maya Dass, has deposed that he is ill since last three years and he, as well as, Poshi had never kept Atma Ram as tenant on the suit land nor he paid any rent to them. In his cross-examination, he stated that the suit land is having 4 fields and the area of the land is 5 bighas, 12 biswas. He has denied that after the death of Nokhu, plaintiff become tenant on the suit land. He has further denied that after the sale deed, Ext. PA, he has not given possession to Ved Ram. He has admitted that they are living in a distance village. 15. DW-5, Poshi, has deposed that she never kept Nokhu and Atma Ram as tenant nor they paid her any rent. She has further deposed that the suit land is having 9 fields, but she could not tell the khasra numbers of the fields. She has denied that Atma Ram was paying Rs. 5/- as rent for the land. In her cross-examination, she denied that earlier Nokhu was tenant and thereafter Atma Ram is a tenant over the suit land. She has further deposed that the suit land is having 9 fields, but she could not tell the khasra numbers of the fields. She has denied that Atma Ram was paying Rs. 5/- as rent for the land. In her cross-examination, she denied that earlier Nokhu was tenant and thereafter Atma Ram is a tenant over the suit land. She could not say when Nokhu was expired. She has admitted that she sold 1-17-0 bighas land to Ved Ram for a consideration of Rs. 11,000/-. She has denied that only Atma Ram is the owner of the suit land. She has admitted that the Patwari used to go for gildavari on the suit land twice a year and he used to make the entries as per the spot position. She has further admitted that before Nokhu she was in possession of the suit land. She further admitted that she is living in a distant village. She feigned ignorance about the owners of adjoining land to the suit land. She has admitted that she sold the land to Ved Ram. 16. From the evidence it is clear that earlier Nokhu was tenant and after his death his son Atma Ram is a tenant on the suit land. Ext. P-1, copy of Jamabandi for the year 1999-2000, shows that Poshi, being co-owner, has given land on tenancy and after coming into force the Act, ownership rights were vested in Atma Ram and this ownership entry in possessory column was probably made in view of the mutation No. 859, dated 28.08.1991, Ext. P-2 and vide this mutation under the Act, proprietory rights were conferred upon Atma Ram. Where as Ext. P-3, copy of jamabandi for the year 1966-1967 of the land of khata/khatauni No. 10/14 to 19, including the suit land under khatauni No. 18, khata No. 10 shows that the plaintiff is entered as tenant-at-will under Poshi, co-owner and rent payable mentioned therein is Rs. 5/-. Same entries are also mentioned in jamabandies Ext. P-4 to Ext. P-7. 17. So, from the above it is clear that possession of the plaintiff as tenant-at-will under Poshi, co-owner, was continuously recorded since 1966-67 and on the basis of such entries, proprietory rights of the suit land under the Act were conferred upon the plaintiff, vide mutation No. 859, dated 28.08.1991 and, therefore, in jamabandi for the year 1999-2000, Ext. P-7. 17. So, from the above it is clear that possession of the plaintiff as tenant-at-will under Poshi, co-owner, was continuously recorded since 1966-67 and on the basis of such entries, proprietory rights of the suit land under the Act were conferred upon the plaintiff, vide mutation No. 859, dated 28.08.1991 and, therefore, in jamabandi for the year 1999-2000, Ext. P-1, the plaintiff was recorded having become owner with proprietory rights. The entries regarding possession of the plaintiff, as tenant-at-will, under Poshi, coowner are continuous since 1966-67, which presumed to be correct. As far as private family partition is concerned, in this regard, no evidence has been adduced on record. However qua the joint land, co-owners were recorded in specific and distinct possession and such entries are on record since 1966-67, it means that there was some arrangement qua cultivation or for purpose of convenience and co-owners put themselves in specific possession of the joint land and from such joint land, they had been selling and alienating the land, which was in possession of every co-owner. To prove this fact it is apt to discuss the evidence led by the defendants. DW-5, Poshi, has admitted that she sold 1-17-0 bighas land to Ved Ram for a consideration of Rs. 11,000/-, DW-1, Ved Ram has also admitted that he purchased share in the suit land from Poshi, which he subsequently sold to one Karam Chand. It means that after such family arrangement, co-owners have been alienating property in their possession without objection from any other co-sharer. 18. Now coming to oral evidence with regard to the possession of the suit land, PW-1, Atma Ram, has claimed that earlier his father Nokhu was tenant on the suit land and after his death he is paying rent of Rs. 5/- to Poshi and now he has become its owner, according to him Poshi was absolute owner of the suit land. PW-2, Meen Chand has also seen plaintiff possessing the suit land after its purchase. He has denied the plaintiff to be owner of the suit land on the ground that it was owned by Maya Dass. As far as DW-2, Jeet Ram is concerned, he specifically stated that the plaintiff had never possessed or cultivated the suit land. He has denied that the suit land was owned and possessed by Poshi and Nokhu as tenant. As far as DW-2, Jeet Ram is concerned, he specifically stated that the plaintiff had never possessed or cultivated the suit land. He has denied that the suit land was owned and possessed by Poshi and Nokhu as tenant. DW-3, Churamani, co-owner of the suit land has claimed that the suit land is jointly owned and possessed by all the co-owners and plaintiff and his father were never inducted as tenants thereupon, nor they ever paid any rent. He claimed getting the suit land cultivated through labourers and according to him mutation of ownership was wrongly sanctioned in favour of the plaintiff. Similarly, DW-4, Maya Dass has also denied the possession of the plaintiff as tenant. DW-5, Poshi, has denied the fact that plaintiff was inducted as tenant on rent of Rs. 5/- per annum. She has admitted that Patwari had been effecting in khasra gildawari on the spot twice a year. She has also admitted that prior to Nokhu, she herself was owner-in-possession of the suit land. 19. As far as partition of the land is concerned, in cross-examination, the defendants have specifically put the question to the plaintiff that Poshi has sown the maize crop on the suit land, meaning thereby that the defendants admitted that the land was in the exclusive possession of Poshi. Further the defendants are not even aware about the numbers of the fields, this also shows that they are neither in possession of the land nor they know about the land. Even Ved Ram has admitted that Atma Ram was tenant on the suit land and this also clinches the issue, so it is safe to hold that the suit land has rightly been vested in the plaintiff. 20. The revenue entries show that the proprietory rights were ordered to be vested in the plaintiff by AC 1st Grade, thus the arguments of the learned counsel for the appellant/defendants that AC 2nd Grade has no power to confer the proprietory rights upon the tenants are not tenable. 20. The revenue entries show that the proprietory rights were ordered to be vested in the plaintiff by AC 1st Grade, thus the arguments of the learned counsel for the appellant/defendants that AC 2nd Grade has no power to confer the proprietory rights upon the tenants are not tenable. Learned counsel for the appellant/defendants has further argued that the revenue record is not a foundation of the title, there is no dispute to the question of law as the revenue record is not a foundation of the title, however in the instant case the tenancy existing in favour of the plaintiff is continuous, long and from the time of his father and so the findings arrived at by the learned Court below are just holding that the plaintiff has become owner of the suit land on the basis of the conferment of the proprietory rights. Further the partition is proved to be on record, as DW-1 has admitted that Poshi has sown the maize crop on the suit land. 21. There fore, the arguments of the learned counsel for the parties that there cannot be any partition without being recorded in the revenue record, is having no force. At the same point of time, learned counsel for the appellant has argued that Poshi was a widow and so proprietory rights cannot confer upon the plaintiff, however without there being anything on record to show that it was only widow who inducted the plaintiff as tenant, this question cannot be gone into. Further it has come on record that the land was in the tenancy of the plaintiff and earlier his father for more than 50 years continuously, in these circumstance, no conclusion can be arrived at that the plaintiff was inducted as tenant by Poshi when she was widow and the presumption is otherwise. 22. The full Bench of this Hon’ble High Court in Chuniya Devi Vs. Jindu Ram, SLC, 223, has held that “the acceptance of the plea would negate the accomplishment of the object of securing to the actual tiller proprietory rights in the land under his cultivation as a measure of land reforms envisaged in the Act.” 23. 22. The full Bench of this Hon’ble High Court in Chuniya Devi Vs. Jindu Ram, SLC, 223, has held that “the acceptance of the plea would negate the accomplishment of the object of securing to the actual tiller proprietory rights in the land under his cultivation as a measure of land reforms envisaged in the Act.” 23. In view of the above, the substantial question of law No. 1 is answered holding that as Poshi was in exclusive possession of the land, as has come in evidence and the rent was being paid to Poshi, further Poshi was being in exclusive ownership, the proprietory rights were rightly vested in favour of the plaintiff/defendants being tenant-at-will. The plaintiff was inheriting the suit land from the time of his father, who was also tenant on the suit land since long and it has come on record that when the plaintiff was 15 years old his father expired and at the time of evidence he was 54 years old, meaning thereby that from the last 30 years the plaintiff was tenant on the suit land, which has come to the exclusive share of Poshi. In these circumstances, the proprietory rights were rightly conferred on the plaintiff. Whereas substantial question of law No. 2 is answered holding that there is clear cut evidence to conclude that there was relationship of tenant and landlord, thus the findings of the learned Court below are as per law and after appreciating the facts, which has come on record to its true perspective and the law has correctly been applied, in fact, the defendants have tried to play fraud by selling land to one of the defendant and to other persons to nullify, the proprietory rights of which were vested in the plaintiff, so the substantial question of law No. 2 is answered accordingly. As far as substantial question of law No. 3 is concerned, the findings of the learned Court below that Maya Dass is not having any share in the suit property is correct, as per the evidence, which has come on record, it was Poshi, who was owner of the suit land after the land was partitioned inter se the co-sharers, thus the learned Court below has correctly appreciated the evidence, pleadings and the documents, which has come on record to its true perspective. 24. 24. The net result of the above discussion is that the instant appeal, sans merits, deserves dismissal and is dismissed accordingly. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. 25. Pending miscellaneous applications, if any, also stands disposed of.