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2018 DIGILAW 1482 (HP)

Vipin Kumar v. Roshan Lal

2018-08-08

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The plaintiff''s suit for rendition of a declaratory decree, vis-a-vis, the suit khasra numbers, stood, affirmatively decreed by the learned trial Court, and, in an appeal carried therefrom, by, the aggrieved defendants, before the learned First Appellate Court, the latter Court also affirmed the verdict pronounced by the learned trial Court. The defendants/appellants, being aggrieved therefrom, hence, motion this Court, through, the instant Regular Second Appeal. 2. Briefly stated the facts of the case are that the plaintiff had filed a suit for declaration claiming himself to be owner in possession and with consequential relief of permanent injunction restraining the defendants from interfering over the suit land detailed in the plaint. The plaintiff further claimed that the revenue entries qua the ownership and possession over the suit land comprised Khasra No.1250 and the entries of ownership over Khasra No.1251 with defendants are wrong, illegal and collusive. The plaintiff has further claimed that the land has been carved out during settlement from old Khasra No.248 measuring 4 kanals, 19 marlas, which has been shown in the ownership of predecessor-in-interest of the defendants and in possession of the predecessor-ininterest of the plaintiff one Labhu as tenant and the tenancy has never been relinquished at any time thereafter, but the defendants in-connivance with settlement staff after getting bifurcation of old khasra NO.248 into suit land has also changed the entries qua possession including the owner in possession over the suit land as the plaintiff has never been dispossessed by the defendants. The plaintiff has further averred that defendant No.1 had instituted a false suit titled as Kishori Lal vs. Roshan Lal seeking declaration qua part of suit land comprised in Khasra No.1251 in which the present plaintiff being defendant filed counter claim seeking his right over the suit land, but that suit was withdrawn by defendant No.1 and thereafter the present plaintiff also withdrew his counter claim with permission to file a suit/counter claim afresh and thereafter the present suit has been filed by the plaintiff before the learned trial Court seeking declaration and injunction against the defendant qua the suit land. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objection qua maintainability, jurisdiction and locus standi etc.. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objection qua maintainability, jurisdiction and locus standi etc.. On merits, the defendants have denied any right, title or interest of the plaintiff over the suit land as the defendants have denied the possession of the plaintiff over the suit land in any capacity including tenancy as pleaded in the plaint. The defendants have further pleaded and claimed that father of the plaintiff had relinquished his tenancy rights orally in favour of the defendants during his life time and handed over the vacant possession, since then, the defendants have pleaded and claimed to be owner in possession of the suit land and has further claimed and pleaded that the plaintiff forcibly trespassed over part of suit land comprised in Khasra No.1251 in July, 1990, but the defendants have denied any tenancy of the plaintiff over the suit land. The defendants have further pleaded and claimed that the entry during settlement was found to be incorrect as the possession of the defendants was found over the suit land and thereby the proper entry has been incorporated during settlement. However, the defendants have pleaded and claimed that he name of the plaintiff in column of possession on part of the suit land being encroacher has been recorded during settlement in connivance with settlement staff as the plaintiff has trespassed over the part of the suit land after the withdrawal of the previous suit by the present defendant. The defendants have specifically pleaded and claimed that neither the plaintiff nor his predecessor-ininterest has ever remained in possession over the suit land in any capacity during the pendency and thereby have pleaded and claimed that the plaintiff has no right, title or interest over the suit land. 4. The plaintiffs filed replication to the written statement of the defendant(s), wherein, he denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. 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 tenant in possession of the suit land and has become owner of the suit land by operation of law as alleged?OPP 2. Whether revenue entries during settlement are collusive, illegal and wrong, as alleged?OPP. 3. 5. 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 tenant in possession of the suit land and has become owner of the suit land by operation of law as alleged?OPP 2. Whether revenue entries during settlement are collusive, illegal and wrong, as alleged?OPP. 3. Whether the plaintiff has trespassed in Khasra No.1251 after the withdrawal of the previous suit by defendants as alleged?OPD. 4. Whether the plaintiff was never inducted as tenant on the suit land, as alleged?OPD. 5. Whether the plaintiff has no locus standi to sue for declaration and injunction as he is not in possession of the suit land?OPD. 6. Whether the suit for declaration and injunction is not maintainable?OPD. 7. Whether the civil court has no jurisdiction to try the present suit? OPD. 8. Relief. 6. 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 defendants/appellants herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed the findings recorded by the learned trial Court. 7. Now the defendants/appellants herein, have instituted the instant Regular Second Appeal, before, this Court, wherein they assail the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 30.10.2007, admitted the appeal instituted by the defendants/appellants, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the suit of the plaintiff seeking correction of long standing revenue entries to which presumption of truth is attached was maintainable or triable by the civil courts when relief could only has been granted by the revenue courts under Section 171 of the Himachal Pradesh Land Revenue Act? 2. Whether the suit of the plaintiff for declaration and correction of revenue entries which were admittedly made more than 15 years prior to the filing of the suit was within limitation? 3. Whether the presumption of truth attached to the long-standing revenue entries showing the defendant-appellant to be owner in possession of the property can be held to be rebutted and the inference drawn by the courts below are based on wrong assumptions not sustainable in law? 3. Whether the presumption of truth attached to the long-standing revenue entries showing the defendant-appellant to be owner in possession of the property can be held to be rebutted and the inference drawn by the courts below are based on wrong assumptions not sustainable in law? Substantial questions of Law No.1 to 3: 8. The predecessor-in-interest of the plaintiff, one Labhu, is, in the apt revenue record comprised, in, the jamabandi, appertaining to the year 1953-54, borne in Ex.P-7, and, in the jamabandi, appertaining to the year 1959-60, borne in Ex.P-6, besides in the jamabandi, appertaining to the year 1967-68, EX.P-3, and, further in khasra girdwari, appertaining to the suit property, commencing from 24.10.1968 to April, 1974, khasra girdawari whereof is borne in Ex. D-5, hence, continuously recorded therein, to be, a, tenant under the defendants, vis-a-vis, the suit land. However, the efficacy of the entries borne therein, is, contested by the defendants. All the aforesaid reflections, borne, in the afore referred exhibits, do, inevitably carry, a, presumption of truth, and, upon the defendants'' contest, vis-a-vis, efficacy thereof, rather achieving succession, (a) thereupon, the apt presumption of truth, as, carried by the reflections, borne, in the aforesaid exhibits, would be eroded, (b) with a concomitant effect qua the concurrent verdicts pronounced, by, both the learned Courts below, whereunder, the plaintiff''s suit stood decreed, rather constraining this Court, to, reverse the apt concurrent verdicts. 9. Be that as it may, it is incumbent, upon, this Court to allude, to, evidence, as, adduced by the defendants, for, hence displacing the presumption, of, truth, garnered by the aforesaid exhibits, wherein, the predecessor-in-interest, of the plaintiff, is, reflected as, a, non occupancy tenant, vis-a-vis, the suit khasra number. In the defendants'' endeavour to repel, the efficacy of the presumption, of, truth, marshalled by the aforesaid reflections, borne in the exhibits aforesaid, (i) the defendants merely contend that, upon, failure of the plaintiff to adduce receipts, in display of galla being purveyed by one Labhu, to the defendant or their predecessors-in-interest, hence per se, thereupon, the presumption of truth, ascribable to the apposite entries, hence, getting eroded. However, the aforesaid espousal reared by the defendants, is, amenable to falter, (ii) given the defendants, acquiescing qua Labhu, cultivating the suit land, from about 20 to 25 years, (iii) and, also the defendants rearing a plea of the suit land being mortgaged, vis-a-vis, Labhu, (iv) and, thereafter on redemption of the suit land, rather the defendants holding possession of the suit khasra numbers. Moreover, the aforesaid plea(s), are, per se flimsy and pretextual, (v) given theirs being raised, without any contention in consonance therewith, standing embodied in the apt written statement, (vi) and, hence theirs being reared beyond pleadings, hence are, discardable, corollary whereof, is qua, an inference being bolstered qua the defendants acquiescing, vis-a-vis, the predecessor-ininterest of the plaintiff, one Labhu, hence, holding possession, of, the suit khasra number(s). The defendants had also reared a plea qua the predecessorin-interest of the plaintiff, one Labhu making oral relinquishment of his tenancy, vis-a-vis, the suit khasra number(s), and, qua the defendant. Even the aforesaid plea, cannot be ascribed any tenacity, given no documentary evidence, for, hence meteing succor thereto, being adduced, rather when there exists a statutory interdiction,as, borne in Section 31 of the H.P. Tenancy and Land Reforms Act, provisions whereof stand extracted hereinafter, against relinquishment, of, tenancy(s) qua the landowner, (vii) thereupon, the aforesaid plea also cannot be accepted, rather it gives momentum, for, erection of a firm inference, qua the defendants acquiescing, qua one Labhu holding, the, apposite capacity of, a, gair maurusi, vis-a-vis, the suit khasra number(s), (viii) importantly, when as aforestated, no cogent evidence, stands adduced, even for sustaining the aforestated pretextual plea, and, as, may be comprised in the apposite therewith rapat, rather being entered by the Patwari Halqua concerned. Provisions of Section 31 of the H.P. Tenancy and Land Reforms Act read as under:- "31. Relinquishment.--No relinquishment of a tenancy shall be made by a tenant in favour of landowner. However, if a tenant wants to make a voluntary surrender of his tenancy land, the same shell be in favour of the State Government. The State Government shall have right to induct any suitable tenant or landless agricultural labourer to the relinquished land in the manner to be prescribed." In summa, the inevitable sequel thereof, is, qua the presumption of truth ascribable to all the reflections occurring in Ex. P-3, Ex. The State Government shall have right to induct any suitable tenant or landless agricultural labourer to the relinquished land in the manner to be prescribed." In summa, the inevitable sequel thereof, is, qua the presumption of truth ascribable to all the reflections occurring in Ex. P-3, Ex. P-6, Ex.P-7, Ex.D-5, wherein, one Labhu, the predecessor-in-interest of the plaintiff, stands depicted, as a tenant, vis-a-vis, the suit khasra number(s), hence remaining uneroded, thereupon, conclusivity is to be ascribed, vis-a-vis, the apposite reflections, borne in all the aforesaid exhibits. 10. The effect, of, ascription(s) of conclusivity, visa-vis the apt reflections, carried in the aforesaid exhibits, does, foist, a, duty upon this Court, to conclude qua, the, purported stay entry borne in exhibit D-2, exhibit whereof, is a copy of missal hakiyat bandobast jadid, appertaining to the year 1976-77, wherein, the plaintiff stands displayed in the apposite column, to, rather hold unathorised possession of the suit kahsra numbers, rather carrying any validity or otherwise. The aforesaid reflections carried in Ext. D-2, in case, stand, established to be authorisedly made, thereupon, given its comprising, the latest revenue record appertaining to the suit land, would, hence render them, to, enjoy preeminence, vis-avis, prior thereto prepared revenue records, and, also would hence rebut the presumption of truth, as, carried by all the apt entries, borne, in the aforesaid preceding therewith apt revenue records. In determining whether the purported stray entry borne in Ex. D-2, carries, any, presumption of truth or also is authorisedly made, this Court on making disinterrings, from, the apposite thereto record, has, rather failed to discover any valid order made by the competent revenue officer, in sequel, whereto, the purported stray entry, borne in Ex.D-2, stood recorded. The effect, of, want of making, of, any valid order, by any revenue officer, in sequel whereto, EX.D-2, was prepared, rather renders, all the apt reflections borne therein, hence, manifesting qua the plaintiff standing depicted as an encroacher, vis-a-vis, the suit land, being, hence construable to be unauthorisedly made, (i) hence, they does not don any mantle of any validity, sequel thereof is qua theirs being enjoined to be quashed and set aside, also hence it does not outweigh the creditworthiness, of, a;; the reflections borne in the aforesaid exhibits, wherein, Labhu, the predecessor-ininterest of the plaintiff, is depicted as, a, tenant, vis-a-vis, the suit land. 11. 11. The learned counsel appearing for the aggrieved defendants/appellants herein, has contended with much vigour (i) that with the provisions borne in Section 171 of the H.P. Land Revenue Act (hereinafter referred to as the Act), especially the one occurring, in clauses (v) and (vi) to sub-section (2) of Section 171 of the Act, the relevant provisions whereof stand extracted hereinafter:- "171. Exclusion of jurisdiction of Civil Courts in the matters within the jurisdiction of Revenue Officers.-Except as otherwise provided by this Act- (1)................................. (2) A Civil Court shall not exercise jurisdiction over any of the following matter, namely- (i)............................. (ii).............................. (iii)............................ (iv) any notification direction the making or revision of a record-of-rights; (v) the framing of a record-of-rights or periodical record or the preparation, signing or attestation of any of the documents included in sch a record; (v-a) order regarding complete remeasurement of an estate or sub-estate under section 33A of this Act; (vi) the correction of any entry in a record-ofrights, periodical record or register of mutation;.........................." hence casting a statutory interdiction, against, the Civil Courts rather making any order for correction of any entry, borne in a record of rights, or against theirs making any order, for any correction in the register of mutation, nor hence with, the, civil court, holding any jurisdiction, to direct the framing of record of rights, whether annually or periodical, (ii) whereas, with the purported stray entry borne in Ex. D-2, appertaining, to the apt jurisdiction statutorily vested in the revenue officers concerned, and, also falling within the statutory interdiction cast, in, clauses (v) and (vi) to sub-section(2) of Section 171 of the Act, (iii) thereupon, the apt verdicts concurrently hence decreeing the plaintiff''s suit rather are construable to be rendered without jurisdiction, and, hence the apt verdicts, are, amenable to suffer negation. However, the aforesaid contention reared, before this Court by the learned counsel, appearing for the defendants/appellants herein, has no foundation, as, it has been made, with his being completely unmindful, visa-vis, the provisions borne in Section 38, and, in Section 46 of the Act, provisions whereof also stands extraction hereinafter:- 38. Restrictions on variations of entries in records. However, the aforesaid contention reared, before this Court by the learned counsel, appearing for the defendants/appellants herein, has no foundation, as, it has been made, with his being completely unmindful, visa-vis, the provisions borne in Section 38, and, in Section 46 of the Act, provisions whereof also stands extraction hereinafter:- 38. Restrictions on variations of entries in records. - Entries in records-of-rights or in [periodical] records, except entries made in [periodical] records by patwaris under clause (a) of section 36 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in subsequent records otherwise than by - (a) making entries in accordance with facts proved or admitted to have occurred; (aa) making entries in respect of Government land in accordance with the order made by the State Government or by a Revenue Officer not below te rank of the Collector; (b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties; and (c) making new maps where it is necessary to make them. 46. Suit for declaratory decree by persons aggrieved by an entry in a record. - If any person considers himself aggrieved as to any right of which he is in possession by an entry in a record of rights or in [a periodical] record, he may institute a suit for a declaration of his right under [chapter VI of the Specific Relief Act, 1963]" (i) whereas both the aforesaid provisions, are, be read in conjunction, with clauses (v) and (vi) to sub-section (2), of, Section 171 of the Act. Apparently, clauses (v) and (vi) to sub-section (2) of Section 171 of the Act, confer an exclusive right upon a revenue officer, to, prepare the records, of rights, whether periodical or annual, and, also foist exerciseable jurisdiction, in, the revenue officer concerned, to, only initially make orders, for correction of any entry, in the records of rights or to make any order for making corrections, in the register of mutations, (ii) obviously, hence the Civil Courts, are barred to usurp the aforesaid jurisdiction, statutorily foisted under clauses (v) and (vi) to sub-section (2) of Section 171 of the Act. Nonetheless, the aforesaid simplistic conception carried by the aforesaid provisions, only, appertains, vis-a-vis, the apt jurisdiction contemplated, in, clauses (v) and (vi) to sub-section (2) of Section 171 of the Act, or in other words, it appertains to the apt jurisdiction, in respect thereto, as, exclusivity conferred upon the revenue officer concerned, (iii) yet their apt connotation, vis-a-vis, their scope and domain, as aforesaid, rather does not extend to Civil Court(s) hence being ousted to test the validity(ies) thereof nor their mandate(s) are extendable, to a construction of it overriding or benumbing, the, effect of the provisions borne, in, Section 38, and, in, Section 46 of the H.P. Land Revenue Act, (iv) rather the latter provisions are to be read in conjunction therewith, and, upon making a conjunctive reading thereof, vis-avis, clauses (v) and (vi) to sub-section (2) of Section 171 of the Act,(v) hence the inevitable inference therefrom, is, rather qua the exercise of jurisdiction, under, powers vested in the revenue officer under clause clauses (v) and (vi) to sub-section (2) of Section 171 of the Act, being statutorily made amenable, to face the apt test of validity(ies), upon, emergence, of, evidence qua the exercise of jurisdiction, under, clauses (v) and (vi) to subsection (2) of Section 171 of the Act, by the Revenue officer, (vi) being not founded, upon, the facts proved on record, and, the relevant exercise of jurisdiction being not preceded by any order made by the Revenue officer concerned, and, the orders made by the revenue officer being not acquiesced, by apt interested parties or not being supported by any decree binding upon the parties. Consequently, when evidently hereat, the purported stray entry borne in Ex. Consequently, when evidently hereat, the purported stray entry borne in Ex. D-2, does not satiate, any of the aforestated ingredients, cast in Section 38 and Section 46 of the Act, (vii) and with the latter provisions foisting a statutory right in the aggrieved, to make a challenge, upon, erroneous or false entries, as, carried in the apt revenue record, by his casting a civil suit, (viii) thereupon, obviously statutory preeminence, is, given to the verdicts, and, decrees pronounced by the Civil Courts, vis-a-vis, orders, if any, pronounced by the revenue officers, under the clauses (v) and (vi) to subsection (2) of Section 171 of the Act, (ix) also hence the mightest clout or sway, is to be assigned, to the judgments and decrees pronounced by the civil courts, vis-a-vis, any orders initially or prior thereto, made by the Revenue Officers concerned. The effect of the aforesaid inference is qua the exclusionary provisions, depended upon, by the counsel for the appellant, and, as borne in Section 171 of the Act, are hence subject, to the provisions borne in Section 38 and in Section 46 of the Act, and, thereupon, the Civil Court(s) hence hold(s) jurisdiction to test the validity of any orders, as, initially made by any Revenue Officer, for making any entry in the record of rights, whether annual or periodical, and, concomitantly also hold jurisdiction to test the validity, of, any revenue entry(ies). 12. The learned counsel appearing for the aggrieved defendants/appellants herein, has, contended that, with the purported of stray entry borne in Ex.D-2 being effected in they year 1976-77, hence, with the suit being instituted belatedly therefrom, hence, the plaintiff''s suit rather warrants, it being dismissed, it being filed beyond limitation. However, the aforesaid submission, cannot be accepted, as the apt accrual of causes of action, vis-a-vis, the aggrieved plaintiff, from the apposite entry, is not engendered, from the date of making of the entry, rather is engendered, from, the date of acquisition of knowledge, vis-a-vis, the entry, or accrual of apt causes of action qua the aggrieved, arising from, any proven overt acts, of, invasion or interference mounted, vis-a-vis, the settled rights, of, the aggrieved, upon, the suit property. Bearing in mind, the aforesaid, with the plaintiff acquiring knowledge, vis-a-vis, the invalid stray entry borne in Ex.D-2, (a) upon, prior to the institution of the extant suit, the defendants instituting a suit, wherein, they espoused relief for rendition of a declaratory decree, vis-a-vis, the suit kahsra numbers, (b) and, also with his averring, qua thereat his acquiring knowledge, vis-a-vis, the inefficacy of the purported stray entry borne, in, Ex.D-2, and, when also leads evidence in consonance therewith, (c) thereupon, the date of preparation of Ex.D2, is, insignificant nor therefrom the apt causes of action accrue, vis-a-vis, the plaintiff, rather accrual of causes of action, vis-a-vis, the plaintiff rather hence accrue, upon, his acquiring knowledge, vis-a-vis, the inefficacy of the purported stray entry, borne in Ex. D-2. Consequently, the plaintiff''s suit is within limitation. 13. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have not excluded germane and apposite material from consideration. Accordingly, the substantial questions, of law are answered in favour of the respondent/plaintiff, and, against the appellants/defendants. 14. In view of the above discussion, there is no merit in the present Regular Second Appeal, and, it is dismissed accordingly. In sequel, the judgements and decrees rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.