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2018 DIGILAW 675 (HP)

Sant Ram v. Jangan Nath

2018-04-18

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The plaintiffs' suit for rendition of a decree, for permanent prohibitory injunction besides for rendition of a decree, for declaration, stood decreed by the learned trial Court. In an appeal carried therefrom, before the learned First Appellate Court, by the defendants, the latter Court allowed his appeal besides obviously reversed the trial Court's judgment and decree. 2. Briefly stated the facts of the case are that the plaintiffs filed a suit for declaration and permanent prohibitory injunction in respect of the land comprising khasra Nos. 8,23, 36, 29, 59, 60,61, 100, 101, 106, 118, 130, 4, 5, 6, 125, 56 and 85, situated in Village Dati, Pargana Dhar, Tehsil Arki, District Solan, on the averments that late Sh. Sita Ram and one Smt. Uganu were the owners of the suit land in equal share. Sita Ram had two sons Sh. Nanku and Sh. Devi Ram and the plaintiffs are successors of late Sh. Nanku, while the defendants are the successors of late Sh. Devi Ram and the land of Sh. Sita Ram was inherited in equal share by Sh. Nanku and Devi Ram. Smt. Uganu had inducted Sh. Nanku as tenant qua the half share in the said land and since then the plaintiffs have been coming in exclusive possession of the land qua the share of Smt. Uganu and as such they have become owners in possession of the same by operation of law and in the alternative the plaintiff claimed adverse possession after death of late Smt. Uganu, the plaintiffs being in exclusive possession as right openly, peacefully and continuously to the knowledge of all including the defendants and further the said tenancy of Sh. Nanku was never terminated legally or otherwise but the revenue agency has wrongly passed the mutation dated 15.4.1956 behind the back of the plaintiffs and on the basis of the wrong mutation in subsequent jamabandis Sh. Devi Ram and the defendants have been wrongly shown as joint owners in possession of the land of which Smt. Uganu was owner and taking undue advantage of the wrong entries, the defendants filed an application for partition before the Assistant Collector, which was objected by the father of the plaintiff and after his death by the plaintiff and that Sh. Nanku died on 26.1.1977 and the application for partition was allowed by the Assistant Collector vide his order dated 28.8.1974 and 8.10.1974 which orders were challenged upto the Financial Commissioner but all the revenue courts wrongly relied upon the revenue entries and ordered the partition without jurisdiction as the land in suit is not joint as the partition in respect of the other property and the land inherited from Sh. Sita Ram by the parties have taken place about 39 years ago and since then they are living separately without any joint status in any respect as the Assistant Collector has ordered to deliver the possession of the land to the defendants as per the order of partition, whereas, the defendants have no right, title, or interest over the land in suit and the plaintiffs are the absolute owners in possession of the same and the defendants have threatened to dispossess the plaintiffs and in that eventuality, they would cause an irreparable loss or injury. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections of jurisdiction, limitation, cause of action, valuation etc. On merits, it is contended that though Nanku and Devi Ram were real brothers, who had inherited the property of deceased Sh. Sita Ram in equal share and Smt. Uganu died issueless in the year 1955-56 and her property was inherited by Nanku and Devi Ram in equal share and mutation No.175 of 15.4.1956 was rightly attested in favour of both real brothers and Sh. Nanku, the father of the plaintiffs was never inducted as a tenant by deceased Smt. Uganu and the property was joint Hindu Co-oparcenary property and Smt. Uganu had no right to alienate the property without the consent of Devi Ram, who was the presumptive reversioner and the land in question was cultivated by the plaintiffs and defendants jointly. So, the revenue Court has rightly allowed the parties and the plaintiffs have not challenged the final order of the Financial Commissioner within the period of limitation nor this Court has jurisdiction to decide the partition proceedings. They have also denied that there was any private partition between the parties. 4. 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 become the owners in possession of the share of late Sh. They have also denied that there was any private partition between the parties. 4. 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 become the owners in possession of the share of late Sh. Devi Ram by way of adverse possession, as alleged? OPP. 2A. Whether the father of the plaintiffs was tenant of late Smt. Uganu, as alleged, if so its effect? OPP. 2. Whether the suit is not within limitation? OPD. 3. Whether the suit is not maintainable in the present form? OPD. 3A. Whether the plaintiffs are estopped by their acts, conducts etc. to file the suit as alleged? OPD. 3B. Whether mutation No.175 has been wrongly attested and the subsequent entries in the revenue record are wrong, as alleged? OPP 3C. Whether the partition of land inherited from Sita Ram had already taken place 39 years ago, if so, its effect? OPP. 4. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom, by the defendants/respondents herein before the learned First Appellate Court, the latter Court allowed the appeal and reversed the findings recorded by the learned trial Court. 6. Now the plaintiffs/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, on 25.07.2005, this Court, admitted the appeal instituted by the plaintiffs/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether the first Appellate Court erred in law and fact that on the death of a widow tenancy created by her comes to an end? 2. Whether the findings of the learned first Appellate Court are dehors the pleadings and evidence on record? Substantial questions of Law No.1 and 2: 7. One Smt. Uganu, whereunder whom one Nanku, the predecessor-in-interest of the plaintiffs was a tenant, expired in the year 1955-56. 2. Whether the findings of the learned first Appellate Court are dehors the pleadings and evidence on record? Substantial questions of Law No.1 and 2: 7. One Smt. Uganu, whereunder whom one Nanku, the predecessor-in-interest of the plaintiffs was a tenant, expired in the year 1955-56. The contest, reared, by the learned counsel appearing for the plaintiffs/appellants vis-a-vis the findings recorded by the learned Appellate Court, is confined to the latter irrevering the mandate, of, Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter referred to as the Act, relevant provisions whereof stand extracted hereinafter: “11. (1) Notwithstanding any law, custom or contract to the contrary a tenant other than a sub-tenant shall on application made to the compensation officer at any time after commencement of this Act, be entitled to acquire, on payment of compensation, the right, title or interest of the landowner in the land of the tenancy held by him under the landowner; Provided that a tenant not having a right of occupancy shall not be entitled to acquire the right, title and interest of the landowner in the land of the tenancy from which he is liable to ejectment under clause (d) or clause (f) or clause (g) of sub section (1) of Section 54. (2) Nothing contained in sub-section (1) shall apply to a landlord, if he has no other means of livelihood and is a minor, widow or a person suffering from physical or mental disability incapable of earning his livelihood. In the case of a minor, sub-section (1) shall not apply during his minority and in other cases for his life time. (3) The application referred to in sub-section (1) shall be made in writing to the compensation officer who shall thereupon determine the amount of compensation payable to the landowner in respect of the land in accordance with the provisions of Sections 12 and 13. (3) The application referred to in sub-section (1) shall be made in writing to the compensation officer who shall thereupon determine the amount of compensation payable to the landowner in respect of the land in accordance with the provisions of Sections 12 and 13. (4) ..........................................................................” (i) and thereupon contends, that, even though a specific statutory bar stands embodied in subsection (2) thereof, against a tenant, staking any claim for vestment of proprietary rights, (ii) on anvil of his being recorded as a tenant vis-a-vis th suit khasra numbers, (iii) especially with its being evidently invincible , from, the apposite revenue records, of his holding tenancy under a minor, widow or a person suffering from physical or mental disability incapable of earning his livelihood, (iv) and hence he accept(s) that thereupon the predecessor-in-interest of the plaintiffs, given his evidently holding tenancy under one Uganu, uncontrovertedly a widow, rather being estopped or statutorily barred to, on demise of Uganu, stake any claim for statutory vestment of proprietary rights, (v) yet he proceeds to contend that the aforesaid statutory bar is limited (a) only vis-a-vis the tenant staking vestment of proprietary rights, (b) whereas, there is no statutory bar, against, the predecessor-in-interest of the plaintiffs, and, thereafter the plaintiffs hence making a valid claim, for bestowment, of, tenancy(ies), vis-a-vis the suit khasra numbers, tenancy whereof existed inter se one Nanaku, and, deceased Uganu, and, the aforesaid claim also surviving beyond the life time of one Uganu, and, also hence a concomitant pronouncement being made upon the defendants, for, accepting the plaintiffs, as tenants vis-a-vis the suit khasra numbers. The aforesaid submission addressed before this Court, by the learned counsel appearing for the plaintiffs/appellants, would acquire leverage, upon, the pleadings cast in the plaint hence rather evidently bearing consonance with his submissions. However, an incisive perusal of the pleadings, unfolds of the plaintiffs, claiming rather a declaratory decree being rendered vis-a-vis theirs being pronounced to be owners in possession, of, the suit khasra numbers. However, an incisive perusal of the pleadings, unfolds of the plaintiffs, claiming rather a declaratory decree being rendered vis-a-vis theirs being pronounced to be owners in possession, of, the suit khasra numbers. The anvil of the plaintiffs' claim for rendition(s) of a declaratory decree, qua theirs being pronounced to be owners in possession of the suit land, is embodied, in their predecessor-in-interest, one Nanku holding with an animus possidendi hence possession thereof, besides his possession being open, peaceful, and, to the knowledge of one Devi Ram, and, thereafter on demise of Nanku, the possession of the suit khasra numbers being held, by the plaintiffs with an alike animus possidendi, and, also its being open, peaceful, and, to the knowledge of the defendants. Apparently, hence, the aforesaid staking(s), of, rendition of a declaratory decree, is visibly embodied in besides is squarely rested, upon, the plaintiffs hence propagating acquisition of title by prescription vis-a-vis the suit khasra numbers. The aforesaid mode of an affirmative staking by the plaintiffs, of, acquisition of title vis-a-vis the suit khasra numbers, is squarely blunted, by a catena of decision(s) recorded, by the Hon'ble Apex Court, with, clear expostulations occurring therein, of, the plea of acquisition of title, by adverse possession, being a plea rearable only in defence, and, the plaintiff(s) being barred to rear it, in the affirmative. In aftermath, the manner and the mode of acquisition title, vis-a-vis the suit khasra numbers, as, propagated by the plaintiffs, hence disempower(s) them, to seek rendition of any declaratory decree qua of theirs being pronounced, to be owners in possession of the suit land, besides obviously the aforesaid conclusion per se, negatives, the aforesaid espousal of the counsel, for the appellants. 8. Be that as it may, as aforestated, for the plaintiffs, to succeed qua for theirs, not falling, within the ambit, of, the statutory bar constituted under Section 11 of the Act, and, rather theirs, on demise of one Uganu, hence being declared as tenants vis-a-vis the suit khasra numbers, predominantly given, one Nanku holding tenancy, under one Uganu, and, the aforesaid status subsequently thereafter continuing even vis-a-vis the extant landowners, rather, is also a plea which is neither founded nor is rested upon apposite pleadings. For want of the aforesaid espousal made before this Court, hence, remaining unrested upon apposite therewith pleadings, rather with the plaintiffs' claim vis-a-vis the suit khasra numbers hence being anchored upon an unespousable plea, (i) thereupon, the submission made before this Court, by the learned counsel appearing for the plaintiff qua the plaintiffs, being declared to be holding rights of tenancy vis-a-vis the suit khasra numbers, even qua the extant landowners, given their predecessor-in-interest evidently, holding tenancy rights, vis-a-vis the suit kahsra numbers, under one Uganu, and, hence thereafter tenancy being declared to be continuing under the extant landowners, rather hence cannot be come to be accepted. 9. 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 respondent(s) and against the appellant(s). 10. 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. 6-S/13 of 2001 is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.