Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1437 (HP)

Shanta Devi v. Rup Lal

2018-08-01

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J. - By way of this appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Mandi, in Civil Appeal No. 82 of 2007, dated 17.04.2008, vide which, learned Appellate Court while dismissing the appeal filed by the present appellant, upheld the judgment and decree passed by the Court of learned Civil Judge (Sr. Division), Sarkaghat, District Mandi, in Civil Suit No. 119 of 2003, dated 02.07.2007, whereby learned trial Court had decreed the suit filed by the plaintiff for permanent prohibitory injunction by restraining the defendants therein from interfering in the suit land. 2. This appeal was admitted on 25.06.2009 on the following substantial question of law:- "1.Whether the findings of the learned trial Court as well as first Appellate Court are result of misreading, misinterpretation of the evidence on record and against settled position of law" 3. Brief facts necessary for adjudication of the present case are that respondent/plaintiff (hereinafter referred to as ''plaintiff'') filed a suit for declaration that he was exclusive owner in possession of the suit land comprised in Khewat Khatauni No. 111/118 min, Khasra No. 1019, land measuring 0-00-40 hectare, situated in Village Jamni/402, III, Bhadrota, Tehsil Sarkaghat, Distt. Mandi, HP (hereinafter referred to as ''suit land'') and the defendants, who were strangers to the same, were threatening to raise construction in the form of structure over the same by destroying crops of the plaintiff. Prayer was also made by the plaintiff that defendants be restrained from interfering in the suit land and mandatory injunction may also be granted in his favour ordering demolition of the structure, if any, raised during the pendency of the suit. 4. By way of written statement, the defendants contested the claim of the plaintiff. According to the defendants, they were in exclusive possession of Khasra No. 1154, i.e. the suit land since the year 1989. It was further the case of the defendants that plaintiff was a co-sharer alongwith them in the suit land and during consolidation proceedings, plaintiff had exchanged some portion of his land with Ramesh Chand and others, however, as far as defendants were concerned, plaintiff had no concern with them. As per defendants, plaintiff was not in possession of the suit land. 5. As per defendants, plaintiff was not in possession of the suit land. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues:- "1.Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? OPP 2. Whether the suit is not maintainable, as alleged? OPD 3. Whether this Court has no jurisdiction to try and entertain the present suit? OPD. 4. Whether the plaintiff has no enforceable cause of action to file the present suit as alleged? OPD 5. Whether the plaintiff has not come to the court with the clean hands, as alleged? OPD. 6. Relief." 6. On the basis of evidence led by the parties, both ocular as well as documentary in support of their respective cases, the issues so framed were answered by the learned trial Court in the following manner:- "Issue No.1 : Partly Yes. Issue No. 2 : No. Issue No. 3 : No. Issue No.4 : No. Issue No. 5 : No. Relief : The suit of the plaintiff is partly decreed." 7. Learned trial Court decreed the suit of the plaintiff for permanent prohibitory injunction by restraining the defendants from interfering over the suit land. It was held by the learned trial Court that plaintiff Rup Lal, who entered the witness box as PW1, had deposed that the suit land came to him during the course of consolidation and that he was owner in possession of the same. In his cross examination, said witness denied the fact that the suit land was in possession of the defendants. Leaned trial Court also held that the factum of the plaintiff being owner in possession of the suit land was also deposed in the Court by PW2 Chet Ram, who stated that his house was adjacent to the suit land. This witness denied that defendants were in possession of the suit land. Learned trial Court also referred to the statement of defendants'' witnesses. It held that DW1 Munshi Ram had stated that suit land was given to him by way of gift by his father in the year 1989, though he produced copy of mutation Ext. D-1 showing that khasra No. 1154 was given to him by one Jindi. This witness did not produce any revenue record establishing that khasra No. 1154 was the old khasra No. of the suit land. D-1 showing that khasra No. 1154 was given to him by one Jindi. This witness did not produce any revenue record establishing that khasra No. 1154 was the old khasra No. of the suit land. Learned trial Court took note of the fact that this witness himself stated that possession of the suit land was not given to the defendants in his presence, which falsified the fact that defendants were in possession of the suit land. Learned trial Court also held that Nek Ram, who entered the witness box as DW2, had admitted in his cross examination that in the course of consolidation, both parties were present. Learned trial Court also took note of the fact that Gurdev, who entered the witness box as DW3 and who was uncle of defendant No. 2 Munshi Ram, had admitted that he was not having good terms with the plaintiff. Learned trial Court also held that this witness had admitted that both the parties and other villagers were present during the consolidation proceedings. On these bases, it was held by the learned trial Court that revenue record, i.e. copy of jamabandi Ext. P-1 demonstrated that it was the plaintiff who was owner in possession of the suit land. It further held that presumption of truth is attached to the revenue record which is in favour of the plaintiff and it were the defendants who had to rebut the said entry. Learned trial Court thereafter held that Munshi Ram himself stated that possession of the suit land was not delivered to the defendants in his presence. Learned trial Court also held that as it was evident from the statement of defendants'' witnesses itself that both the parties were present at the time of consolidation, this falsified the plea of the defendants that entries in favour of plaintiff were made during consolidation at their back. Learned trial Court also held that defendants were unable to prove that khasra No. 1154 was the old khasra number of the suit land. On these bases, it was concluded by the learned trial Court that defendants had failed to rebut the entry in revenue record to prove that they were owners in possession of the suit land. Learned trial Court thus concluded that plaintiff was entitled for relief of permanent prohibitory injunction. However, it dismissed the case of the plaintiff as far as mandatory injunction was concerned. 8. Learned trial Court thus concluded that plaintiff was entitled for relief of permanent prohibitory injunction. However, it dismissed the case of the plaintiff as far as mandatory injunction was concerned. 8. Feeling aggrieved, the defendants filed appeal before the learned Appellate Court, which was dismissed by the learned Appellate Court vide its judgment dated 17.4.21008. Learned Appellate Court upheld the judgment and decree passed by the learned trial Court by holding that evidence on record clearly demonstrated that at the time of consolidation proceedings, both the parties were present and defendants had slept over the matter for 10-15 years and had filed proceedings under section 54 of the H.P. Holdings (consolidation of fragments) Act, 1971, after filing of the suit. Learned Appellate Court also held that it was the duty of the authorities under the H.P. Holdings (consolidation of fragments) Act, 1971, to put the parties in physical possession of land and no symbolic possession was envisaged nor could be inferred, being totally foreign to the object of the Act. It held that official acts are presumed to have been done as per law and normally consolidation proceedings cannot be said to be legally complete unless tenure holders are put in possession of their respective holdings under the provisions of the Act. On these bases, it concurred with the findings returned by the learned trial Court that it was the plaintiff who was owner in possession of the suit land. 9. Feeling aggrieved, defendants/appellants have filed the present appeal. 10. I have heard learned counsel for the parties and also gone through the records of the case as well as the judgments passed by both the learned Courts below. 11. As already mentioned above, this appeal was admitted on the following substantial question of law:- "1.Whether the findings of the learned trial Court as well as first Appellate Court are result of misreading, misinterpretation of the evidence on record and against settled position of law" 12. Before proceeding further, it is pertinent to take note of the fact that there are concurrent findings in favour of the plaintiff and against the defendants by both the learned Courts below that it is the plaintiff who is owner in possession of the suit land. Before proceeding further, it is pertinent to take note of the fact that there are concurrent findings in favour of the plaintiff and against the defendants by both the learned Courts below that it is the plaintiff who is owner in possession of the suit land. Both the learned Courts have also returned concurrent findings in favour of the plaintiff that he was put in possession of the suit land during the course of consolidation proceedings and that defendant had not brought any evidence on record to rebut the revenue entries in favour of plaintiff in this regard. A careful perusal of the evidence on record demonstrates that said findings returned by both the learned Courts below are duly borne out from the records of the case. In addition to the statement of the plaintiff, who entered the witness box as PW1, statement of PW2 Chet Ram, also demonstrates that it was the plaintiff who was owner in possession of the suit land. On the other hand, defendant Munshi Ram, who entered the witness box as DW1, in his examination in chief himself stated that the possession of the suit land was not given to the defendants in his presence. Therefore, this finding of fact recorded by the learned trial Court and affirmed by the learned Appellate Court is duly borne out from the records of the case. 13. Besides this, Ext. P-1, which is the copy of Jamabandi for the year 1999-2000, clearly demonstrates that in the columns of ownership and possession, name of Rup Lal alongwith Megh Chand was entered. Record also demonstrates that defendants have not produced any evidence to substantiate that the revenue entries contained in the jamabandi were incorrect. In this view of the matter, it cannot be said that the findings returned by the both the learned Courts below are result of misreading and misinterpretation of the evidence on record and against settled position of law. The substantial question of law is answered accordingly. In view of above discussion, as there is no merit in the present appeal, the same is accordingly dismissed. Consequently, judgments and decrees passed by the learned Courts below are upheld. Pending miscellaneous application(s), if any, also stand disposed of.