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2018 DIGILAW 122 (HP)

Roshani Alias Jai Dei v. Mahanti

2018-01-10

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J. - The present regular second appeal is maintained by the appellant, who was the plaintiff before the learned Courts below (hereinafter to be called as "the plaintiff"), laying challenge to the judgment and decree, dated 01. 11. 2004, passed by learned District Judge, Bilaspur, H. P. , in Civil Appeal No. 35 of 2003, whereby the judgment and decree, dated 16. 01. 2003, passed by the learned Senior Sub-Judge, Bilaspur, District Bilaspur, H. P. , in case No. 1/1 of 2000, was affirmed. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the plaintiff filed a suit against the respondents, who were the defendants before the learned Courts below (hereinafter to the called as "the defendants") for declaration and permanent injunction, wherein plaintiff has alleged that she is owner-in-possession of land, measuring 9 Biswas out of 19 Biswas, comprised in Khasra No. 45, situated in Village Khansra. It was further alleged that revenue entries showing the names of defendants No. 1 and 2 as owners-in-possession over the entire land, measuring 19 Biswas are wrong, illegal, null and void. As per the plaintiff, defendants No. 1 and 2 or their predecessor-in-interest was never remained in possession of the suit land and the revenue entries, as well as mutation attested by the Assistant Collector Second Grade on 11. 03. 1976 in favour of defendants No. 1 and 2 are null and void and since the defendants are threatening to take possession of the suit land, therefore they are liable to be restrained from interfering in the suit land. 3. The defendants, by filing written statement, resisted the suit of the plaintiff and took preliminary objections qua maintainability, jurisdiction, cause of action, limitation and estoppel. On merits, it has been averred that the predecessor-in-interest of defendants No. 1 and 2 was in possession of the whole land measuring 0. 19 Bigha as a tenant and he was declared owner under Section 104 of the H. P. Tenancy and Land Reforms Act, vide mutation attested on 11. 03. 1976, in presence of the plaintiff. Therefore, the plaintiff has no right, title or interest in the suit land and to challenge the said entries, as she never filed an appeal against the said mutation and order, as such, the defendants prayed for dismissal of the suit. 4. 03. 1976, in presence of the plaintiff. Therefore, the plaintiff has no right, title or interest in the suit land and to challenge the said entries, as she never filed an appeal against the said mutation and order, as such, the defendants prayed for dismissal of the suit. 4. The learned Trial Court on 11. 05. 2000 framed the following issues for determination and adjudication: "1. Whether the plaintiff is owner in possession of suit land? OPP 2. Whether the plaintiff is entitled to a decree for permanent injunction? OPP 3. Whether the plaintiff is entitled to a decree for possession as prayed? OPP 4. Whether this Court has no jurisdiction to hear and decide the suit? OPD 5. Whether the suit is within time? OPP 6. Whether the plaintiff is estopped to file the suit by her act and conduct? OPD 7. Relief. " 5. After deciding issues No. 1, 2, 4 & 5 in negative, issue No. 3 in redundant, issue No. 6 being not pressed, the learned trial Court dismissed the suit of the plaintiff. Subsequently, the plaintiff maintained an appeal before the learned first Appellate Court, which was also dismissed. Hence the present regular second appeal, which was admitted for hearing on the following substantial question of law: "1. Whether both the Courts below have ignored the principles of law that the mutation does not confer any right and proceeded to put wrong reliance on the revenue entries which are documents of title in holding the defendantrespondent to be owner in possession of the suit land? Are not the findings of both the Courts below erroneous and perverse when both the Courts below ignored the fact that the plaintiff-appellant restricted her claim to 9 biswas of land only and there was no admission by her with respect to the suit land and the relationship of land owner and tenant between the parties and the defendantrespondent having acquired proprietary right over 10 biswas only? Have not both the Courts below acted in a highly erroneous and perverse manner in misreading the statement of PW-1 and dismissing her suit? 2. Have not both the Courts below acted in a highly erroneous and perverse manner in misreading the statement of PW-1 and dismissing her suit? 2. Whether the lower Appellate Court has committed grave error of jurisdiction in holding the suit beyond the competence of the civil Court when the defendant-respondent did not assail the findings on issue No. 4 rendered by the trial Court and the issue was not pressed by the learned counsel of the defendant respondent? Had the lower Appellate Court otherwise wrongly applied the ratio of the judgment of Chunia Devi''s case and has erroneously dismissed the suit? 3. Whether the findings of both the Courts below that the suit of the plaintiff-appellant was barred by limitation are illegal, erroneous, arbitrary and perverse by taking the accrual of the cause of action in the year 1976 on account of the passing of the order of the Assistant Collector? Have not both the Courts below committed grave error of jurisdiction in wrongly appreciating the pronouncement of the Hon''ble Supreme Court and misapplying the same to the facts of the present case by ignoring the fact that the suit of the plaintiff was barred on title and could not have been held to be barred by applying Article 100 of the Limitation Act? 6. Learned senior counsel appearing on behalf of the appellant has argued that the revenue entries itself shows that the land, which was given to the defendants was only 10 Biswas, however the proprietary rights were vested in their favour with respect to 19 Biswas of land and as far as 9 Biswas of land is concerned, that was never given to them in tenancy, so these entries are wrong. On the other hand, learned counsel for the respondents has argued that there is no illegality in the judgments and decrees, passed by the learned Courts below, as the whole land was in the tenancy of the appellant. 7. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 8. The plaintiff in order to prove her case has stepped into the witness box as PW-1 and admitted that the suit land has been given to deceased Tota Ram by her mother, about 40 years back and on this land, two houses, kitchen and cowshed of the defendants are situated. She has further admitted that on 11. 03. 8. The plaintiff in order to prove her case has stepped into the witness box as PW-1 and admitted that the suit land has been given to deceased Tota Ram by her mother, about 40 years back and on this land, two houses, kitchen and cowshed of the defendants are situated. She has further admitted that on 11. 03. 1976, mutation was attested and sanctioned in favour of deceased Tota Ram, however neither she has filed any appeal nor filed any suit for setting aside that mutation order. In her crossexamination, she has admitted that the defendants are residing in the houses constructed on the suit land. She has further admitted that the defendants were tenant on the suit land and they have now become its owner. 9. Conversely, DW-1, Roop Lal, has deposed that the suit land was given to deceased Tota Ram by the mother of the plaintiff about 40-45 years back for construction of house and now there are three old houses, one new house, kitchen and cowshed. He has further deposed that on 11. 03. 1976, mutation was attested and sanctioned in favour of deceased Tota Ram in presence of the plaintiff. 10. Dw-2, Jagdish Ram and DW-3, Chhota Ram, have deposed that the suit land was given to deceased Tota Ram by Sunehru about 40-42 years back and after his death, the suit land remained in possession of Mahanti and Judhya. DW-3 further deposed that the suit land is 19 Biswas, upon which the defendants have constructed their houses. 11. In the present case, mutation No. 48, Ext. P-5, regarding proprietory rights was sanctioned and decided in favour of the predecessor-in-interest of the defendants No. 1 & 2 on 11. 03. 1976. The plaintiff in her cross-examination, has also frankly admitted that she has not preferred any appeal or civil suit against mutation, dated 11. 03. 1976. The perusal of mutation shows that it has been attested and sanctioned in presence of the plaintiff. It is settled proposition of law that any order passed by the competent Public Officer, is to be challenged within a year from the date of passing of that order. However, in the present case, the order has been passed on 11. 03. 1976, whereas the suit has been filed on 17. 01. 2000. 12. The Jamanbandies, Exts. P-3 & P-4 and Jamabandi Ext. However, in the present case, the order has been passed on 11. 03. 1976, whereas the suit has been filed on 17. 01. 2000. 12. The Jamanbandies, Exts. P-3 & P-4 and Jamabandi Ext. P-6, for the years 1972-73, shows that earlier, Tota Ram, predecessor-in-interest of defendants No. 1 & 2 was tenant under Sunehru, mother of the plaintiff and after the death of Sunehru, he became tenant under the present plaintiff and mutation No. 48 was attested in his favour, in her presence on 11. 03. 1996. After the death of Tota Ram, defendants No. 1 & 2, are now recorded owners-inpossession of the suit land, which is reflected in Jamabandi Ext. P-1 and Missal Hakiat, Ext. P-2. Even the plaintiff while appearing as PW-1, has admitted in her statement on oath that the suit land had been given to deceased Tota Ram by her mother about 40 years back and on this land, two houses, kitchen and cowshed of the defendants are situated. She has also admitted that on 11. 03. 1976, mutation was attested and sanctioned in favour of deceased Tota Ram and she did not maintain any appeal against the said order, neither filed any suit to set aside the same. 13. There is nothing on record to show that the plaintiff has challenged the order of Land Reforms Officer in the manner, as laid down in the Chunia Devi''s case and there were no allegations made that the statutory authorities had not acted in conformity with the fundamental principles of judicial procedure or that the provisions of the Act had not been complied. Thus, the question qua conferment of proprietory rights has rightly been looked into by the learned Courts below. 14. As discussed hereinabove, it is clear that the defendants were tenants on the suit land and the revenue entries were rightly reflecting their possession and the mutation was rightly conferred. Thus, the question qua conferment of proprietory rights has rightly been looked into by the learned Courts below. 14. As discussed hereinabove, it is clear that the defendants were tenants on the suit land and the revenue entries were rightly reflecting their possession and the mutation was rightly conferred. The admission on the part of the plaintiff also proves that the defendants were tenants, thus the findings are not a result of misreading of statement of PW-1, as the statement has to be read as a whole, so the substantial question of law No. 1 is answered holding that the learned Courts below have not ignored the principles of law and placed reliance on the revenue entries correctly and it cannot be said that the findings of the learned Courts below are erroneous, as the same are after appreciating the facts, law and statement of PW-1 to its true perspective. At the same point of time, this Court finds that as the order of the revenue authorities, with respect to the conferment of proprietory rights, suffers from no illegality, prime facie the findings of the revenue Courts cannot said to be with jurisdictional error and the ratio of the judgment of Chunia Devi''s case has rightly been applied by the learned lower Appellate Court in view of the facts and circumstances of the present case, so the substantial question of law No. 2 is answered accordingly. Now coming to substantial question of law No. 3, as the order with regard to the attestation of mutation was passed in the year 1976 and the suit was maintained after more than 13 years, thus it cannot be said that the findings recorded by both the learned Courts below are erroneous or against the law, so the substantial question of law is answered accordingly. 15. The net result of the above discussion is that the instant appeal, sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. 16. Pending miscellaneous application(s), if any, also stand(s) disposed of.