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2018 DIGILAW 1802 (HP)

Jaswant Singh v. Iqwal Singh

2018-10-08

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. 1. By way of present Review Petition filed under Order 47, Rules 1 & 2 of the Code of Civil Procedure, a prayer has been made on behalf of the petitioners defendants- appellants to review and recall the judgment dated 17.03.2018, passed by this Court in Regular Second Appeal No.231 of 2006, titled as: Jaswant Singh & Others vs. Iqwal Singh, whereby this Court upheld the judgment dated 23.2.2006 passed by learned Additional District Judge, Una in Civil Appeal No.59/2002, affirming the judgment and decree dated 25.6.2002 passed by learned Sub Judge Ist Class, Court No.2, Amb, District Una, in Civil Suit No.196 of 1993. 2. In nutshell ground, as set up in the present petition for seeking review of the judgment dated 17.03.2018 passed by this Court in RSA No.231 of 2006, is that this Court has failed to appreciate that the petitioners-appellants defendants (hereinafter referred to as ‘defendants’) are the lawful owners of the land measuring 0-02-70 hectares bearing Khewat No.21 min, Khatauni No.60 min, comprised in Khasra Nos.642, 643 & 642/1 to the extent of ½ share only, situate in village Mubarikpur, Tehsil Amb, District Una, H.P., as per Farad Jamabandi for the year 1953-54. Defendants have averred in the petition that though trial Court in para-8 of its judgment dated 25.6.2002 has considered Farad Jamabandi for the year 1953-54 Ex.PX-1, but has failed to indicate the name of Ms. Asha Devi widow of Hari Singh, who was equal co-sharer along with the defendants. Defendants have further averred that learned trial Court wrongly concluded that it was in the exclusive Hissedari possession of the plaintiff-respondent (hereinafter referred to as the ‘plaintiff’) by ignoring the well settled principle of law that possession by one co-sharer is considered as possession by all the co-sharers. 3. Defendants have further averred that learned trial Court wrongly concluded that it was in the exclusive Hissedari possession of the plaintiff-respondent (hereinafter referred to as the ‘plaintiff’) by ignoring the well settled principle of law that possession by one co-sharer is considered as possession by all the co-sharers. 3. Apart from above, it has further been averred in the review petition that this Court has failed to appreciate the aforesaid Farad Jamabandi for the year 1953-54, which otherwise stands duly discussed in para-8 of the judgment of the learned trial Court and it has been wrongly concluded by this Court in para-11 of judgment, sought to be reviewed in the instant petition, that defendants failed to adduce any evidence of their rights, whereas, as a matter of fact, the possession of the defendants stood duly proved to the extent of their share on the basis of the said Farad Jamabandi for the year 1953-54 and this document fortified the pleadings of the defendants that they were coming in possession of the suit land from the time of their ancestors to the extent of their shares. 4. I have heard learned counsel for the parties and gone through the record of the case. 5. After having heard learned counsel for the parties and carefully perused the material adduced on record vis-à-vis impugned judgment sought to be reviewed, this Court has no hesitation to conclude that there is no mistake or error apparent on the face of the record, which could persuade this Court to review its judgment. Bare perusal of pleadings, adduced on record by respective parties during the trial, clearly suggests that it was none of the case of the defendants that they are co-sharers in the suit land, rather defendants by way of filing joint written statement refuted the claim put forth by the plaintiff on the ground that the suit land comprised in Khasra No.643 is in their possession since the time of their ancestors and they are using the same for storing fuel wood and also to go to answer the call of nature as a matter of right. 6. Apart from above, defendants also claimed that they have become owners by way of adverse possession. 6. Apart from above, defendants also claimed that they have become owners by way of adverse possession. Defendants also claimed before the trial Court that there exists an old cattle shed over Khasra No.642, which was reconstructed by their father in the month of June, 1960 over the same place and land of Khasra No.642 denoted by letters EFGJ is situated in between the cattle shed, Abadi and court-yard of defendants. According to defendants, they are coming in open, continuous and peaceful possession of the suit land to the knowledge of plaintiff and they are in hostile and adverse possession of the same and as such have become owners with the passage of time. 7. Most importantly, document Ex.PX-1 i.e. Jamabandi for the year 1953-54, sought to be relied upon, never came to be placed on record by the defendants, rather the same was placed on record by the plaintiff, perusal whereof though suggests that Heera Singh, predecessor-in-interest of the defendants, was shown to be co-sharer to the extent of ½ share in the land comprised in Khasra Nos.1709, 1710 and 1711 (old), measuring 0-13 hectares, but careful perusal of subsequent Jamabandies pertaining to the years 1964-65 and 1988-89 clearly suggests that the name of predecessor-in-interest of defendants was not reflected in the column of ownership qua the land in question, but, at no point of time objection, if any, was ever raised by the predecessor-in-interest of the defendants or his legal representatives. 8. Pleadings available on record clearly reveals that the plaintiff filed a Civil Suit, praying therein for decree of permanent prohibitory injunction or possession restraining the defendants from interfering in any manner in the suit land owned and possessed by him specifically averring therein that he is owner in possession of the land measuring 0-02-70 hectares bearing Khewat No.21 min, Khatauni No.66 min, Khasra Nos.642, 643 and 642/1, as entered in Missalhaquiat for the year 1988-89, situate in village Mubarikpur, Tehsil Amb, District Una, H.P. Plaintiff sought injunction squarely on the basis of entry in his favour made in Jamabandi pertaining to the year 1988-89, wherein he is shown to be owner in possession of suit land as detailed hereinabove. 9. 9. As has been taken note hereinabove, it was not the case set up by the defendants that their predecessor-in- interest was co-sharer along with the predecessor-in-interest of the plaintiff, rather entire endeavour in written statement is/was to project the case that they have become owners of the suit land by way of adverse possession. Otherwise also, there is no evidence adduced on record by the defendants that the proceedings, if any, were ever initiated by them or their predecessor-in-interest for correction of revenue entry, especially when, in the year 1964-65, name of their predecessor-in-interest did not figure in the column of ownership as owner in possession qua the suit land. Defendants did not raise a plea of being co-owner in the written statement nor lead any evidence in this regard. Moreover, defendants did not even raise it as a ground in the grounds of appeal before the first appellate Court nor any substantial question of law, in this regard, has been formulated in the Regular Second Appeal also. Now, at this stage, the defendants cannot be permitted to raise a question, which was neither pleaded nor put in issue for adjudication before the learned first appellate Court or before this Court. The present petition is not only misconceived but frivolous one. 10. Hence, this Court sees no material irregularity manifest in the order, undermining its correctness or resulting into miscarriage of justice. Needless to say that the review is not an appeal in disguise, entitling a party to be heard, simply because the party wants decision to be otherwise. 11. Consequently, in view of above, as well as principles laid down in the judgment rendered by Hon’ble Apex Court in Kamlesh Verma vs. Mayawati & Ors, (2013)8 SCC 320 and Akhilesh Yadav Etc. vs. Vishwanath Chaturvedi, (2013)2 SCC 1 , present petition is dismissed. Pending applications, if any, are also disposed of.