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2018 DIGILAW 1882 (HP)

State of H. P. v. Pritam Chand

2018-10-31

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The plaintiffs' suit for rendition of a decree, for possession, stood, dismissed by the learned trial Court, and, in an appeal carried therefrom by the aggrieved plaintiffs, the learned First Appellate Court, rather allowed the plaintiffs' appeal, and, hence decreed theirs suit for possession. The State of Himachal Pradesh, is, aggrieved therefrom, hence, has instituted the instant appeal before this Court. 2. The brief facts of the case are that the plaintiffs have filed a suit for possession of land measuring 1 Kanal 10 marlas, marked by letters ABCD as shown the site plan attached with the plaint in red colour out of the total land measuring 22 kanals 18 marlas fully detailed and described in the head note of Civil Suit No.235 of 1993 by removal of super structure, beside the plaintiffs have also sought the relief of injunction against the defendants from their interference in the remaining portion of the suit land. It has been pleaded that the they have been coming in the cultivating possession of land measuring 22 kanals 18 marlas bearing Khasra No.1001 since long and they have become owners of the same by virtue of the provisions of H.P. Tenancy and Land Reforms Act. The plaintiffs have further averred that in the month of April, 1993, the defendants forcibly encroached upon the suit land, and, raised construction of the Panchayat Ghar on it. The matter was reported to police and even notice under Section 80 CPC was not replied by the defendants. On these averments, the plaintiffs have sought the relief claimed by them in the suit. 3. The defendants contested the suit and filed separate written statements. Defendant No.1 in its written statement has taken preliminary objections qua cause of action, estoppel, time barred, non joinder of necessary parties, maintainability etc. On merits, it is submitted that a Sarai in the suit land exists since 1974. According to it, on 10.09.1973 land measuring 1 kanal was gifted by one Bhagwanti out of Khasra No.1979 (old) and Sarai and Panchayat Ghar had been constructed in Khasra Nos.1001/3 and 1001/2. Defendant No.1 described these khasra numbers as newly carved khasra numbers. It has been pleaded that a civil suit No.108 of 1993 is pending inter se the parties at contest. Defendant No.1 described these khasra numbers as newly carved khasra numbers. It has been pleaded that a civil suit No.108 of 1993 is pending inter se the parties at contest. Defendant No.1 also asserted that the value of the construction is about 1,50,000/-, and, as such the plaintiff s have not value the suit properly for the purpose of court fee and jurisdiction. 4. Defendant No.2 in its written statement has taken preliminary objections qua suit being liable to be stayed under Section 10 of the CPC., maintainability, non joinder of parties etc. On merits, the relief claimed by the plaintiffs was resisted on the ground that the land measuring 0-19 marlas was gifted on 10.09.1973 by Smt. Bhagwanti wife of late Sh. Kartar Singh out of Khasra No.1079 (old), for the purpose of construction of Sarai Share Aam and according to defendant No.2 a Panchayat Ghar had been constructed in the part of the said khasra number. It is further pleaded that the suit is bad for non joinder of necessary parties as the owners have not been impleaded in the present lis for the proper adjudication of the case, hence, prayed for dismissal of the suit. 5. The plaintiffs filed replication to the written statements of the defendants, wherein, they denied the contents of the written statements and re-affirmed and re-asserted the averments, made in the plaint. 6. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiffs have been coming in possession of the suit land as tenant at will and become owners by virtue of H.P. Tenancy and Land Reforms Act, as alleged? OPP. 2. Whether the defendants forcibly encroached upon the suit land by raising construction of Panchayat Ghar in the month of April, 1993? OPP. 3. Whether the plaintiffs are entitled to recovery the possession of the suit land? OPP. 4. Whether the plaintiff shave no cause of action? OPD. 5. Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD1 6. Whether the suit is not maintainable? OPD1 7. Whether the suit is not within time? OPD. 8. Whether the suit is bad for non joinder of necessary parties? OPD 9. Whether the suit is liable to be stayed under Section 10 CPC?OPD2 10. Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD1 6. Whether the suit is not maintainable? OPD1 7. Whether the suit is not within time? OPD. 8. Whether the suit is bad for non joinder of necessary parties? OPD 9. Whether the suit is liable to be stayed under Section 10 CPC?OPD2 10. Whether the suit has not been properly valued for the purpose of jurisdiction and court fee. If so, what is the correct valuation of the suit? OPD1. 11. Relief. 7. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/respondents herein. In an appeal, preferred therefrom, by the plaintiffs/respondents herein before the learned First Appellate Court, the latter Court allowed the appeal, and, reversed the findings recorded by the learned trial Court. 8. Now the defendant/appellant herein, has instituted the instant Regular Second Appeal before this Court, wherein it assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 6.1.2011, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the 1st Appellate Court has erred in law in not appreciating that the relief of declaration sought by the plaintiffs in the present case cannot be granted in their favour in absence of true owner i.e. Smt. Bhagwanti Devi? 2. Whether the 1st Appellate Court has erred in law in not appreciating that the suit land was donated by the owner of the land by way of gift deed in favour of Bashindgan Deh for the purpose of Sari and mutation thereof was also attested on 16.02.1974. Which was never challenged by the plaintiff? 3. Whether the 1st Appellate Court has erred in law in not appreciating that the present suit is based on fiction of wrong entries made in the revenue record during consolidation proceedings, when some land of plaintiff was reduced, for which the remedy was by way of initiating the appropriate proceeding before the consolidation officers.? 4. Whether the 1st Appellate Court has erred in law by holding that as per the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act. 4. Whether the 1st Appellate Court has erred in law by holding that as per the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act. The conferment of proprietary rights are automatic w.e.f. 3.10.1975, whereas no such finding could be returned in absence of true owner? Substantial questions of Law No.1 to 4: 9. The plaintiff had claimed rendition of a decree for possession qua land measuring 1 kanal 10 marlas borne in khasra Nos. 1001(22-18). One Bhagwanti widow of late Kartar Singh, donated, land measuring measuring 019 marlas, vis-a-vis, the defendant on 10.09.1973, and, in pursuance thereto mutation No.1225, hence, stood sanctioned on 12.1.1974. In consonance thereto the requisite entries are borne in the revenue records concerned. In the revenue records, the plaintiffs are shown to be 'gair maurusi' on payment of rent, vis-a-vis, the landowners concerned. All the afore referred entries, as, occur in the revenue records, are made at the instance of the revenue officers concerned, and, thereupon, a presumption of truth is acquired by the afore revenue entries. More so, when the defendants neither contested the efficacy thereof nor adduced any evidence (i) that in the occurrence of the afore revenue entries, in, the revenue record concerned, any revenue official hence making, any, gross blatant departure from the norms appertaining to the recording of entries, in the jamabandi, appertaining to the suit land. The further effect thereof is that the defendants are estopped from contending that the plaintiffs, stand erroneously, and, fictitiously recorded, as, “gair maurusi”, vis-a-vis, the suit khasra number, under the landowners, nor hence they can contend that the suit is bad for non joinder, of, the landowners concerned. Paramountly, also rather a firm presumption, of truth is acquired by the revenue entries. 10. Be that as it may, the fulcrum of the entire controversy engaging the parties at contest, rests, upon the defendant raising construction, upon, khasra No.1001(22-18). The admission made by defendant No.1 1's (a) revenue officer, qua the panchayat ghar standing constructed, upon, khasra No.1001, rather stood relied upon by the learned First Appellate Court hence to form a conclusion, that, rather the plaintiff's suit for possession, hence, being amenable for being decreed. Even though the learned Addl. The admission made by defendant No.1 1's (a) revenue officer, qua the panchayat ghar standing constructed, upon, khasra No.1001, rather stood relied upon by the learned First Appellate Court hence to form a conclusion, that, rather the plaintiff's suit for possession, hence, being amenable for being decreed. Even though the learned Addl. Advocate General, has, vehemently canvassed before this Court, that, the reliance, as, placed thereupon, being visibly misplaced, (i) given Ex.D-8, exhibit whereof is a copy of Aks Shajra Kistwar, appertaining to the suit land, and, denotes the factum, of, khasra No.1001 rather standing bifurcated into three parts i.e. Khasra No.1001/1, 1001/2 and 1001/3, (ii) yet the aforesaid contention is blunted by the factum, of, the afore depictions, rather standing belied by Ex.P-6, exhibit whereof is a copy, of, Aksh Shajra Kistwar appertaining to the suit land, (iii) besides when visibly no valid order for making the afore depictions, in, Ex.D-8, hence stands, placed on record, hence renders it, being construable to be fictitiously recorded. Furthermore, the aforesaid espousal, is, waned by Ex. DW1/A, copy of Aks Shajra Latha Istemal appertaining to the year 1984-85, wherein rather there are is no depictions, hence bearing concurrence with the afore reflections, occurring in Ex. D- 8. Further sequel thereof is that when DW-1, the revenue official has with clear unequivocality, rather rendered a deposition, comprised in his examination-in-chief, qua the relevant construction being raised, upon, Khasra No.1001, (iv) khasra number whereof, is, owned and possessed by the plaintiff, and, when for repudiating the afore testification, borne in the deposition of DW-1, cogent evidence hence enjoined adduction, (v) evidence whereof may have been comprised in a validly prepared report, by the demarcating officer, whereas, non adduction thereof hence enjoins probative efficacy being visited, vis-a-vis, the testification of DW-1. In aftermath, the plaintiffs' rather prove the factum of the relevant construction, occurring upon the land owned and possessed by them, whereupon, they are entitled for the relief as claimed for. 11. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court being based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Substantial questions of law are answered in favour of the respondents and against the appellant. 12. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Substantial questions of law are answered in favour of the respondents and against the appellant. 12. In view of above discussion, there is no merit in the instant appeal, and, it is dismissed accordingly. Consequently, the judgment and decree rendered by the learned First Appellate Court in Civil Appeal No. 34 of 2004 is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.