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2018 DIGILAW 558 (HP)

Sita Devi v. Rattan Singh

2018-04-05

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J —By way of this appeal, the predecessor-ininterest of the present appellants challenged the judgment and decree dated 24.12.2003, passed by the Court of learned Civil Judge, (Junior Division) , Barsar, District Hamirpur in Civil Suit No. 355/97(RBT 550/98) , whereby learned Trial Court dismissed the suit for permanent prohibitory injunction filed by him, and also the judgment and decree dated 20.09.2005, passed by the Court of learned District Judge, Hamirpur, in Civil Appeal No. 3 of 2004, vide which learned Appellate Court while dismissing the appeal of the predecessor-ininterest of the present appellants upheld the judgment and decree passed by the learned Trial Court. 2. Brief facts, necessary for adjudication of the present appeal are that the predecessor-in-interest of the present appellants (plaintiff) (hereinafter referred to as ''the plaintiff'') filed a suit for permanent prohibitory injunction with a prayer that he was owner-in-possession of the suit land comprised in Khata No. 6, Khatauni No. 6, Khasra No. 138, measuring 1-10 Kanals, as per jamabandi for the year 1979-80, situated in Tika Desan, Tappa Garli, Tehsil Barsar, District Hamirpur (hereinafter referred to as ''suit land'') and as the respondents/defendants (hereinafter referred to as ''the defendants'') were interfering in the possession of the plaintiff despite the fact that the defendants were strangers to the suit land, a decree for permanent prohibitory injunction for restraining the defendants from interfering in the suit land be issued. In the alternative, he prayed for decree of possession in case the defendants occupied any portion of the suit land. 3. The claim of the plaintiff was denied by the defendants, who took the stand that the suit land earlier belonged to two brothers, namely, S/Shri Bidhu and Dayala, who got separated about 55 years back. Thereafter, Village Panchayat had distributed the land belonging to their father and uncle between them and in this process, Khasra No. 138 fell to the share of Shri Bidhu. After his death, the plaintiff and defendants inherited the same, being his legal heirs. Defendants constructed a new house on the suit land, which was in their exclusive possession. Further, the stand of the defendants was that as Khasra No. 138 was not directly abutting the common village path, they executed an exchange with one Milkhi Ram of an equivalent portion of land from Khasra No. 138 for this purpose. Defendants constructed a new house on the suit land, which was in their exclusive possession. Further, the stand of the defendants was that as Khasra No. 138 was not directly abutting the common village path, they executed an exchange with one Milkhi Ram of an equivalent portion of land from Khasra No. 138 for this purpose. Revenue authorities while preparing record of exchange, wrongly prepared Tatima. Their further stand was that they were in possession of the suit land since the year 1977 and they had carried out construction on the same in the years 1992-1994 as well as in the years 1995-1996. Further as per the defendants, share of the plaintiff was wrongly reflected as 2/3rd in the revenue record, because in fact the share of the plaintiff was only 1/3rd in the estate of Bidhu. 4. On the basis of pleadings of the parties, the learned Trial Court framed the following issues:- " 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for? ...OPP 2. Whether in alternative the plaintiff is entitled for the relief of possession as prayed for? ...OPP 3. Whether the suit is not maintainable in the present form? ...OPD 4. Whether the plaintiff has no cause of action? ...OPD 5. Whether the share of the plaintiff has been wrongly shown as 2/3rd instead of 1/3rd and whether the tatima has been wrongly prepared by Revenue authorities? ...OPD 6. Whether the defendants have become owners by way of adverse possession qua the share of plaintiff as alleged? ...OPD 7. Whether the house in question was made by the defendants in the year 1977 in Khasra No. 28, if so, its effects? ....OPD 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? ...OPD 9. Whether the defendants are entitled for special costs under Section 35-A of C.P.C.? ...OPD 10. Relief." 5. On the basis of evidence adduced by the parties, learned Trial Court returned the following findings on the issues framed. 6. Learned Trial Court, thus, held that the plaintiff had not produced on record any cogent evidence to demonstrate that it was he, who was in possession over the suit land or the house existing upon the same. Relief." 5. On the basis of evidence adduced by the parties, learned Trial Court returned the following findings on the issues framed. 6. Learned Trial Court, thus, held that the plaintiff had not produced on record any cogent evidence to demonstrate that it was he, who was in possession over the suit land or the house existing upon the same. It also held that it had come in evidence that the family of the plaintiff had, in fact, settled in Chandigarh and in these circumstances, the plaintiff was required to be specific in his pleadings that he was in possession of which very portion of the land. Learned Trial Court further held that there was also no documentary evidence in the shape of revenue records showing his exclusive possession over the suit land or the house. It also held that though presumption of truth was attached to the revenue record, but the same was rebuttable. It further held that the evidence on record established that it were defendants, who were in possession over the suit land as also the house existing thereupon and therefore, this demonstrated that construction of revenue record was not as per actual and factual position. Learned Trial Court further held that construction of the revenue records otherwise was also doubtful from the manner the fact of exchange was given effect to in the revenue records. Learned Trial Court further held that the suit filed by the plaintiff was for permanent prohibitory injunction with the alternative prayer that in case the defendants were found in possession, a decree of possession be passed in favour of the defendants, however, throughout his pleadings, the stand taken by the plaintiff was that it was he, who was in possession of the suit land and it was nowhere in the plaint that he admitted the factum of defendants being in possession of the suit land. It further held that the defendants had improved their title over the suit land by purchasing share of one of the co-shares. On these basis, the learned Trial Court held that the plaintiff was not in possession of the suit land or the house. 7. In appeal, the findings so returned by the learned Trial Court were upheld by learned Appellate Court. 8. On these basis, the learned Trial Court held that the plaintiff was not in possession of the suit land or the house. 7. In appeal, the findings so returned by the learned Trial Court were upheld by learned Appellate Court. 8. Learned Appellate Court held that save and except his own statement, no cogent evidence had been produced on record by the plaintiff to substantiate his claim that he was in possession of the suit land. It also held that cross-examination of the plaintiff demonstrated that his contention of having constructed a house over the suit land was absolutely false. Learned Appellate Court further held that taking into consideration the fact that the plaintiff was a petty Class-IV employee posted in Chandigarh w.e.f. 1969, though his statement that he had constructed a doubled storeyed house, was liable to be rejected, more so, when he could not state the names of masons and labourers employed by him in the construction of the house and also, he could not state names of dealers from whom he had purchased construction material. It also held that the plaintiff had not been registered as a voter in Revenue Estate Dessan. Learned Appellate Court further held that the statements of PW-3 and PW-4 also did not substantiate the case of the plaintiff as their depositions were not reliable. It further held that the plaintiff had admitted possession of the defendants over the suit property in his statement in affirmative on 05.11.1999. It also held that water and power connections of the house in dispute were in favour of the defendants for more than 20 years. On these basis, learned Appellate Court dismissed the appeal of the appellant. 9. Feeling aggrieved by the judgments and decree passed by learned Courts below, the appellant has filed the present appeal. 10. On 29.06.2007, this appeal was admitted on the following substantial questions of law: "1. Whether the learned Courts below could have discarded the revenue record to which the presumption of truth is attached, more so when the defendants themselves had not challenged the said records by filing a counter claim? 2. 10. On 29.06.2007, this appeal was admitted on the following substantial questions of law: "1. Whether the learned Courts below could have discarded the revenue record to which the presumption of truth is attached, more so when the defendants themselves had not challenged the said records by filing a counter claim? 2. Whether the learned Courts below could have dismissed the suit of the plaintiff by holding the defendants to be the owner in possession of the suit land particularly when it was the case of the defendants themselves that they had exchanged their shares of the suit land with Shri Milkhi Ram in the year 1976." 11. I have heard learned Counsel for the parties and have also perused the judgments and decrees passed by learned Courts below as also the record of the case. 12. I will deal with the substantial questions of law, independently. Substantial Question of Law No. 1. 13. It is not disputed that the suit filed by the appellant/plaintiff was for permanent prohibitory injunction and there is concurrent finding returned by both the Courts below against the appellant/plaintiff that it was not he, who was in possession of the suit land and further that the said suit land was in possession of the defendants. It is apparent from the record that the defendants had exchanged their land with the land of Milkhi Ram. In fact, defendants'' case itself was that in the year 1976, they had exchanged a portion of land from Khasra No. 138 for equal share of land from Khasra No. 140 of Milkhi Ram in order to gain access/passage to Khasra No. 138. 14. In order to substantiate that it were the defendants, who were in possession of the suit land, the defendants besides examining one of them, also examined seven other witnesses. DW-2 Prem Chand, working as Senior Assistant in Himachal Pradesh State Electricity Board, Sub Division, Barsar, deposed before learned Trial Court that an application was filed by Rattan Singh (defendant No. 1) for installation of electricity meter and the said meter stood installed in Village Dessan in the year 1977. DW-3 Shri Tej Prakash, Bill Clerk, IPH Sub Division, Barsar, deposed that he had brought relevant record, which demonstrated that there was a water connection in the name of Rattan Singh since the year 1981. DW-3 Shri Tej Prakash, Bill Clerk, IPH Sub Division, Barsar, deposed that he had brought relevant record, which demonstrated that there was a water connection in the name of Rattan Singh since the year 1981. DW-5 Bakhshi Ram deposed before learned Trial Court that he was acquainted with Rattan Singh, as the work of his house was executed by his brother in the year 1977 on the suit land. DW-6 Arjun Singh deposed that he knew parties as they not only belong to his village, but were also the sons of his maternal grand father and that the land where the house in question stood constructed, was in possession of Bidhu (father of the defendants) . DW-7 Sita Ram deposed that it was Rattan Singh, who had constructed the house in question and the work of carriage of stones and other construction material for Rattan Singh was done by him (PW-7) . DW-9 Tilak Raj also deposed that he knew Rattan Singh and that upper storey of the house, in issue, was got constructed by him on the asking by defendant Kashmir Singh. 15. Now, a perusal of the cross-examination of the aforesaid witnesses demonstrates that credibility of their testimony could not be impeached . 16. On the other hand, when one peruses the testimony of the plaintiff''s witnesses, and for that matter, the statement of the plaintiff himself, the only inference, which can be drawn from the same, is that he was not in possession of the suit land. In his crossexamination, he deposed that he got the house constructed in the year 1974 and the construction continued for two years. Though, he denied the suggestion that he was not residing in village Dassan since the year 1969, but he also stated in his crossexamination that he had neither made any ration card in the said village nor there was any entry of his family in Pariwar Register of the said village nor he was paying house tax etc. 17. When we compare the evidence of the plaintiff with the evidence which has been placed on record by the defendants, the only inference which can be drawn, is that it was not the plaintiff who was in possession of the suit land, but it were the defendants. 17. When we compare the evidence of the plaintiff with the evidence which has been placed on record by the defendants, the only inference which can be drawn, is that it was not the plaintiff who was in possession of the suit land, but it were the defendants. There is ample cogent evidence placed on record by the defendants, which demonstrates that it were the defendants, who were in possession of the suit land since long and they had carried out construction over the same in the year 1977. 18. In this background, the findings returned by learned Courts below that the revenue entries were contrary to the factual position, cannot be faulted with. Undoubtedly, presumption of truth was with the revenue entries, but the said presumption is rebuttable and in my considered view also, the defendants were able to rebut the said presumption on the basis of evidence produced by them before learned Courts below. The substantial question of law No. 1 is answered accordingly. Substantial Question of Law No. 2. 19. As far as substantial question of law as to whether learned Courts below could have dismissed the suit of the plaintiff by holding the defendants to be the owners in possession of the suit land is concerned, the suit seeking decree of permanent prohibitory injunction was filed by the plaintiff before learned Trial Court. There is concurrent finding returned by both learned Courts below in favour of the defendants and against the plaintiff that the suit land was in possession of the defendants and not the plaintiff. Further, there is also concurrent finding returned by learned Courts below against the plaintiff that the defendants had not dispossessed him during the years 1998-2000, as alleged and in fact, the defendants were in possession of the suit land since long and they had also carried out construction over the same in the year 1977 and thereafter. 20. The case with regard to exchange of land is not what the appellant wants this Court to believe. A perusal of the averments made in para-4 of the preliminary objections in written statement of defendants demonstrates that entire land in Khata No. 3, comprising a number of khasras, including Khasra No. 138, as per Record of Rights, was family land inherited in equal share by the parties after the death of their father in the year 1974. A perusal of the averments made in para-4 of the preliminary objections in written statement of defendants demonstrates that entire land in Khata No. 3, comprising a number of khasras, including Khasra No. 138, as per Record of Rights, was family land inherited in equal share by the parties after the death of their father in the year 1974. In the year 1976, they had exchanged a portion of land from Khasra No. 138 for equal share of land from Khasra No. 140 of late Shri Milkhi Ram in order to gain access/passage to Khasra No. 138, where the defendants were to construct their house. It is not understood as to how from the said stand of the defendants, it can be inferred that they were not in possession of the suit land, more so, when it stands established on record that the defendants were not only in possession of the suit land since long, but had also constructed a house upon the same in the year 1977. In my considered view, there is no infirmity with the finding returned by both learned Courts below that it was not the plaintiff, but the defendants who were in possession of the suit land. In this regard, it can neither be said that there was any misreading of evidence on record by learned Courts below nor that the findings returned by learned Courts below are perverse being contrary to evidence on record. This substantial question of law is answered accordingly. 21. In view of the above discussion, as there is no merit in the appeal, accordingly, the same is dismissed, so also pending application(s) , if any. 22. There will be no order as to costs.