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2018 DIGILAW 121 (HP)

Jagdish Thakur v. Dila Ram

2018-01-10

CHANDER BHUSAN BAROWALIA

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JUDGMENT Chander Bhusan Barowalia, J. - By way of the present appeal, the appellants have challenged the judgment and decree, passed by the Court of learned Additional District Judge, Ghumarwin, District Bilaspur (H. P), in Civil Appeal No. 125/13 of 2004/2003 and CMP No. 94/6 of 2007/2003, dated 5. 11. 2007, vide which, the learned lower Appellate Court, refused to condone the delay in filing the appeal thereby affirming the judgment and decree, dated 19. 6. 2003, passed by the learned the then Senior Sub Judge, Bilaspur, District Bilaspur, camp at Ghumarwin, in Civil Suit No. 143-1 of 1998/95, for setting aside the judgment and to allow the application, under Section 5 of Limitation Act, filed by the appellant in learned lower Appellate Court for condonation of delay with a direction to the learned lower Appellate Court to hear and decide the appeal on merits. 2. Material facts, necessary for adjudication of this Regular Second Appeal are that plaintiff-respondent (hereinafter referred to as ''plainitff'') maintained a suit for declaration, injunction and possession against defendant No. 1-appellant (hereinafter referred to as ''defendant No. 1'') alleging that he (plaintiff) is owner-in-possession of land measuring comprised in Khata/Khatauni No. 85/103, Khasra No. 6 and 13 area measuring 11-12 bighas, situated in Village Bhanjwani, Pargana Gehrwin, Tehsil Ghumarwin, District Bilaspur, (H. P. ) (hereinafter referred to as ''suit land'') claiming that earlier, he was tenant, under Govind Ram and others and had acquired proprietary rights, under H. P. Abolition of Big Landed Estate Act and was owner-in-possession of the suit land since 1966. Deceased, Sant Ram, became exclusive ownerin-possession of the suit land and after his death, he is owner-inpossession of the suit land. It is further averred that the entry in favour of the defendant, as joint owner-in-possession of the suit land is wrong, illegal and without jurisdiction and on the basis of wrong entry, the defendant maintained an application for partition before Assistant Collector 1st Grade, under Section 123 of H. P. Land Revenue Act, which was decided on 1. 4. 1992 and against the said order, appeal was maintained, which was also decided by the Sub Divisional Collector, Ghumarwin, on 25. 10. 1994. Both these orders of Assistant Collector 1st Grade, dated 1. 4. 1992 and Sub Divisional Collector, Ghumarwin, dated 25. 10. 1994, are illegal, void and without jurisdiction and, therefore, not binding upon him. 4. 1992 and against the said order, appeal was maintained, which was also decided by the Sub Divisional Collector, Ghumarwin, on 25. 10. 1994. Both these orders of Assistant Collector 1st Grade, dated 1. 4. 1992 and Sub Divisional Collector, Ghumarwin, dated 25. 10. 1994, are illegal, void and without jurisdiction and, therefore, not binding upon him. On the basis of these partition orders, the defendants are threatening to dispossess him from the suit land and therefore, as plaintiff is exclusive owner-in-possession of the suit land and for injunction for restraining the defendants from interfering on the suit land. 3. Defendant No. 1-Mahanti, contested and resisted the suit by raising preliminary objections qua maintainability, locus standi, cause of action and the suit is time barred. On merits, she has averred that she is owner-in-possession qua the suit land to the extent of her share. She has admitted to have applied for partition and is joint owner-inpossession of the suit land with the plaintiff and the partition has been effected in accordance with law. 4. Replication was filed on behalf of the plaintiff, who reaffirmed and reasserted the contents, as made in the plaint and denied the averments, as contained in the written statement. 5. From the pleadings of parties, the learned trial Court framed following issues : "1. Whether the plaintiff is exclusive owner in possession of the suit land, as alleged? OPP 2. Whether the revenue entries in favour of the defendant qua the suit land is wrong and illegal, as alleged ? OPP. 3. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed ? OPP. 4. Whether the order dated 1. 4. 1992 passed by A. C. 1st Grade, Ghumarwin and order dated 25. 10. 1994, passed by Sub Divisional Collector, Ghumarwin, is illegal, null and void ? OPP. 5. Whether the suit is not maintainable ? OPD. 6. Whether the plaintiff has no cause of action ? OPD. 7. Whether the plaintiff has no locus standi to file the suit ? OPD. 8. Whether the plaintiff is estopped to file the suit due to his act and conduct? OPD. 9. Whether the suit is barred by limitation ? OPD. 10. Relief. " 6. The learned trial Court after deciding Issues No. 1 to 4 in affirmative and Issues No. 5 to 9 in negative, decreed the suit. 7. OPD. 8. Whether the plaintiff is estopped to file the suit due to his act and conduct? OPD. 9. Whether the suit is barred by limitation ? OPD. 10. Relief. " 6. The learned trial Court after deciding Issues No. 1 to 4 in affirmative and Issues No. 5 to 9 in negative, decreed the suit. 7. Feeling aggrieved thereby the defendant maintained first appeal before the learned Additional District Judge, Ghumarwin, District Bilaspur, (H. P) assailing the findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court refusing to condone the delay in filing the appeal and dismissed the application of the appellant. Thereafter, the appellants have maintained the present Regular Second Appeal, which was admitted for hearing on 20. 12. 2007 on the following substantial questions of law: " 1. Whether the lower Appellate Court has committed grave procedural illegality and irregularity in drawing up the decree sheet, when there was no adjudication made by it on the merits of the claim of the parties ? 2. Whether the Trial Court has acted without jurisdiction in entertaining the suit filed by the respondents assailing the order of partition passed by the competent authorities by ignoring Section 171 of the H. P Land Revenue Act ? 3. Whether the Trial Court has acted in erroneous and perverse manner in ignoring the long standing entries in favour of appellant and by ignoring the material evidence Ex. P-5 and Ex. PR-1 judgments in the previous proceedings on the basis of which the appellant acquired her right in the property in question ?" 8. Mr. Neeraj Gupta, learned counsel appearing on behalf of the appellants has argued that the learned lower Appellate Court has failed to take into consideration the delay, which has occurred, for the sufficient reasons in filing the appeal and so, it should have been condoned and the appeal was required to be heard on merits. 9. On the other hand, Mr. J. L. Bhardwaj, learned counsel appearing on behalf of respondents No. 1 to 3 and 6 to 8 has strenuously argued that the present Regular Second Appeal is not maintainable, as application of the appellant was dismissed for condonation of delay and prays for dismissal of the appeal. 10. 9. On the other hand, Mr. J. L. Bhardwaj, learned counsel appearing on behalf of respondents No. 1 to 3 and 6 to 8 has strenuously argued that the present Regular Second Appeal is not maintainable, as application of the appellant was dismissed for condonation of delay and prays for dismissal of the appeal. 10. In rebuttal, learned counsel appearing on behalf of the appellants has argued that while dismissing the application for condonation of delay, the learned lower Appellate Court has prepared the decree sheet, that is why, the present Regular Second Appeal was maintained. 11. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 12. At the very outset, it is seen that the suit of the plaintiff was decreed on the ground that he (plaintiff) is exclusive owner-inpossession of the suit land. The suit was decreed on 19. 6. 2003, but the appellant maintained the appeal, much thereafter, when the same became time barred and the learned lower Appellate Court, dismissing the application of the appellant, vide impugned order, dated 5. 11. 2007, hence the present Regular Second Appeal. 13. As far as case of the plaintiff is concerned, plaintiff has deposed that he alongwith proforma defendant is owner-in-possession of the suit land and revenue entries in favour of the defendant are wrong. The documents Ex. P1 to Ex. P7 and Ex. PR1, were produced by the plaintiff, which shows that these documents are ample enough to prove that the plaintiff is owner-in-possession of the suit land. Ex. P7, Missal Hakiat for the year 1961-62, which shows that Govindu etc; as owners of the suit land and deceased Sant Ram, father of the plaintiff is shown, as tenant over the suit land, on payment of rent, as reflected in the column of rent. Ex. P1, copy of mutation No. 166, which shows that suit land, was mutated in favour of Sant Ram, predecessor-in-interest of the plaintiff and proforma defendants. It means that deceased Sant Ram, predecessor-in-interest of the plaintiff and proforma defendant became exclusive owner-in-possession of the suit land on 18. 2. 1966, when the mutation was sanctioned in his favour during consolidation. Ex. P6, copy of jamabandi for the year 1965-66, in which, deceased Sant Ram, has been recorded, as exclusive owner-in-possession of the entire suit land. It means that deceased Sant Ram, predecessor-in-interest of the plaintiff and proforma defendant became exclusive owner-in-possession of the suit land on 18. 2. 1966, when the mutation was sanctioned in his favour during consolidation. Ex. P6, copy of jamabandi for the year 1965-66, in which, deceased Sant Ram, has been recorded, as exclusive owner-in-possession of the entire suit land. The same position has been reflected in jamabandi for the year 1981-82. Ex. P-3, copy of jambandi for the year 1981-82, which shows that deceased Sant Ram, predecessor-in-interest of the plaintiff and proforma defendants were exclusive owner-in-possession of the suit land. The entry of ownership to the extent of 108 shares in favour of the defendant for the first time in jamabandi Ex. P2, for the year 1991- 92. Prior to this entry, as reflected in Ex. P2, it was deceased Sant Ram, who was exclusive owner-in-possession of the suit land. The entry as reflected in Ex. P2, copy of jamabandi for the year 1991-92, is without any basis. Even, the defendant has not pleaded any thing as to how, she came in possession of the suit land. So, the revenue entry of ownership in favour of the defendant qua suit land is without any basis and infact the defendant has no right whatsoever with the suit land. 14. From this, it is clear that the plaintiff and proforma defendant were owner-in-possession of the suit land and the revenue entry in favour of the defendant was wrong. Now, coming to the findings recorded by the learned lower Appellate Court on appeal, the defendant in the learned Court below has deposed that when she (Mahanti Devi) met the Advocate, she came to know that her case was dismissed, but there is nothing on record to suggest that why on a particular date, she has come to Ghumarwin. The suit was decreed on 19. 6. 2003, but the appellant came to know about her case on 5. 8. 2003, without bringing anything on record in the application, as to what prevented her or her husband to come to the Court earlier. Moreover, the version of AW-1, is found to be not in consonance with the assertions in the application, which is silent about AW-1, having accompanied his wife to Ghumarwin on 5. 8. 2003. 8. 2003, without bringing anything on record in the application, as to what prevented her or her husband to come to the Court earlier. Moreover, the version of AW-1, is found to be not in consonance with the assertions in the application, which is silent about AW-1, having accompanied his wife to Ghumarwin on 5. 8. 2003. It is not clear as to when the appellant had met her counsel last and why she came only on 5. 8. 2003 to find the fate of her case and why not prior to that. It is also not clear as to whether she met her first counsel after the decision of the case and if so, when and where. Merely, coming to Ghumarwin on a day, under compulsion will not make her case reliable particularly, when the counsel, who was looking her case never stepped into the witness box in support of her case that he was not available at Ghumarwin on 5. 8. 2003 nor he could communicate the decision in the case of the appellant. The delay is not required to be condoned and the revenue entry creates no right in favour of the appellant, as it was new entry without any order, it seems that the defendant was satisfied with the decree and only to take chance, the appeal was filed in the learned lower Appellate Court with the application of condonation of delay, which was dismissed. So, I do not find any illegality and infirmity with the impugned judgment and decree passed by the learned Court below. 15. Our own Hon''ble High of Himachal Pradesh in case titled State of H. P & others vs. Hira Singh and another,2011 2 HimLR 577, wherein it has been held as under : "6. I have heard learned counsel for the parties to say that the delay has been occasioned because of ineptness and lackadaisical attitude of the applicants and do not constitute ground for condonation of delay. The file has been tossed from table to table for opinion to opinion without any manner meeting the mandate of law and that action should be initiated within a period of limitation provided. On the application filed and the evidence on affidavit filed by the applicants, I cannot hold that the delay which has been occasioned is bonafide. The file has been tossed from table to table for opinion to opinion without any manner meeting the mandate of law and that action should be initiated within a period of limitation provided. On the application filed and the evidence on affidavit filed by the applicants, I cannot hold that the delay which has been occasioned is bonafide. If the reasons set out in the application are accepted, it would constitute a ground in all cases to condone the delay in instituting appeals/petitions and would subject the law to an exception which is that it is the whim and pleasure of the State and its functionaries that cases/appeals can be instituted in Court. " 16. However, the judgment in case titled N. Balakrishnan vs. M. Krishnamurthy , 1998 7 SCC 123 , relied upon by the learned counsel for the appellant is not applicable to the facts of the present case, as in the instant case, there was no sufficient cause proved by the defendant before the learned lower Appellate Court to condone the delay. So, this Court find no any illegality and infirmity with the impugned order passed by the learned Trial Court in not condoning the delay. Further, as has been discussed hereinabove, rights of the plaintiff were determined by the learned Trial Court, on the basis of long standing revenue entry in their favour. Even otherwise, on merits, as has been discussed hereinabove, no case is made out in favour of the appellant. 17. The net result of the aforesaid discussion is that the decree sheet was though drawn by the learned lower Appellate Court, but the findings shows that there was no order of the learned lower Appellate Court to draw the decree sheet meaning thereby that the appellant-defendant was well aware that it was dismissal of the application only and maintaining Regular Second Appeal itself shows that the appellant has not followed the right procedure, so substantial question of law No. 1, is decided accordingly. So far as substantial question of law No. 2, is concerned, suit for declaration to the effect that the plaintiff is exclusive owner-in-possession of the suit land and the change in revenue entry qua the defendants were wrong, as the plaintiff is exclusive owner-in-possession of the suit land and so, the findings recorded by the learned Trial Court suffers from no illegality. Substantial question of law No. 3, is decided holding that there was a long standing revenue entries in favour of the plaintiff, as tenant and right of the plaintiff thereafter coming into ownership by the act of legislature and so, the findings recorded by the learned Trial Court are as per law and the material evidence i. e. Ex. P5 and Ex. PR1, were rightly appreciated by the learned Trial Court. 18. In view of the above discussion, the appeal of the appellants is without merit, deserves dismissal and is accordingly dismissed. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending application (s), if any, shall also stands disposed of.