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2019 DIGILAW 1464 (HP)

Thinku Ram deceased through LRs. v. Om Parkash

2019-09-30

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. The plaintiff's suit, for, rendition of, a, decree, for, permanent prohibitory injunction, vis-a-vis, the, suit khasra numbers, and, against the defendants, stood dismissed, hence, by the learned trial Judge, (i) and, in an appeal carried therefrom, by the aggrieved plaintiff, before the learned first appellate Court, the latter Court also, upon, Civil Appeal No. 62/1 of 2002/2001, hence made, a, verdict, in affirmation, vis-a-vis, the, verdict, pronounced by the learned trial Court concerned. The aggrieved therefrom plaintiff, has, through the instant appeal, cast before this Court, strives to seek reversal, of, the concurrently pronounced verdicts, against him. 2. Briefly stated the facts of the case are that the appellant Thinku Ram, claims himself to be a non-occupancy tenant on land comprising in khasra No. 253, measuring 306 bighas, situate at village Lana Pallar, Tehsil Sangrah, District Sirmour, H.P., as per jamabandi for the year 1962-63 under khata No. 106/180 and for 1996-97 under khata No. 116/172. The respondents are the sons of late Basti Ram, who was one of the co-owner. The grievance of the plaintiff is that the defendants are interfering in the suit land and are intending to oust him from the suit land by hook or crook. They have interfered in his possession over suit land on 29.8.2001 by damaging the maize crop and also uprooted some banana trees besides damaging his cow-shed causing a loss of Rs.5000/-. As such, the plaintiff preferred the present suit seeking to restrain the defendants form interfering in any manner in the suit land. 3. The suit was contested by the defendants by taking preliminary objections on the ground of maintainability, locus-standi, non-joinder and cause of action. The defendants case is that in fact before 1958-59, the suit land was mortgaged with one Ran Singh, who was recorded as such. Thereafter, from the year 1962-63 to 1972-73, the plaintiff was recorded as non-occupancy tenant in the column of possession on behalf of Ran Singh, mortgagee but in the year 1972-73, the suit land was redeemed and the entry of mortgage was deleted. The plaintiff is said to have wrongly been continued as the vendor in the revenue record which entry is alleged to be totally illegal, wrong and collusive. The plaintiff is said to have wrongly been continued as the vendor in the revenue record which entry is alleged to be totally illegal, wrong and collusive. The defendants case is that in fact their father has been coming in possession of the suit land since 1974 as he was given possession of the same by the true owners. Thereafter the entry of Gair Marusi Doyam figured in the khasra girdawari in favour of the defendants in the year 1981 though, it was not carried in the jamabandi by the revenue staff. Therefore, they moved an application before the revenue officer in the year 1992. The revenue officer on 2.12.1992 accepted the application after proper verification and ordered the correction of entry in the revenue record. Hence they are in possession of the suit land since 1974. 4. On the basis of the pleadings of the parties, the learned trial Court struck the following issues, inter-se, the parties at contest:- 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed? OPP 2. Whether the sit in the present form is not maintainable? OPD 3. Whether the plaintiff is not in possession of suit land, therefore, he is not entitled to relief of injunction, as prayed? OPD 4. Whether the plaintiff has no locus-standi to file the present suit? OPD 5. Whether the suit is bad for non-joinder of necessary parties? 6. Whether the plaintiff has no cause of action to file the present suit? 7. Relief. 5. On an appraisal of evidence, adduced before learned trial Court, the learned trial Court, dismissed the plaintiff's suit. In an appeal, preferred therefrom, by, the plaintiff, before the learned First Appellate Court, the latter Court had also dismissed, the, appeal, and, the findings qua dismissal, of, the suit of the plaintiff, as, rendered by the learned trial Court, stood upheld. 6. Obviously, through the instant Regular Second Appeal, cast, before this Court, by the appellant, the latter seeks reversal of the concurrent pronouncements, as, made, against him, by both the learned Courts below. 7. This Court, on 25.8.2005, had, admitted the appeal, instituted by the appellant/plaintiff against the concurrently pronounced verdicts, by both the learned courts below, upon, the hereinafter extracted substantial questions of law, for, its hence making, an adjudication thereon:- 1. Whether order dated 2.12.2002 Ext. 7. This Court, on 25.8.2005, had, admitted the appeal, instituted by the appellant/plaintiff against the concurrently pronounced verdicts, by both the learned courts below, upon, the hereinafter extracted substantial questions of law, for, its hence making, an adjudication thereon:- 1. Whether order dated 2.12.2002 Ext. D-1 of Assistant Collector 2nd Grade is wrong, illegal and without jurisdiction vide which long standing revenue entry of plaintiff as tenant on suit land and incorporated in many jamabandies has been changed showing the defendants in possession of the suit land and the learned District Judge has erred in relying Ext. D-1 in dismissing the suit of the plaintiff? 2. Whether presumption of truth attached to jamabandies prepared after 1962-63 regarding the suit land showing the plaintiff as tenant under the owners has been rebutted by the defendants by legal evidence to show that they are in possession of the suit land instead of plaintiff? 3. Whether compromise dated 15.10.2001 Ext. PW-4/A which establishes the possession of the plaintiff on the suit land has been misconstrued, misinterpreted by the learned District Judge and has been ignored illegally? 4. Whether the courts below have misconstrued, misinterpreted and misapplied the pleadings, jamabandies form 1962-63 onwards of the suit land, Ext. D-1 order dated 2.12.1992, ext. D-2 order dated 15.3.2002, compromise dated 15.10.2001 Ext. PW-4/A and other material on record in taking the view that the plaintiff is not in possession of the suit land? Substantial questions of Law No.1 to 4 : 9. Both the learned courts below, declined, to, assign sanctity, to, Ext. PB, comprising, the, jamabandi, appertaining to the suit land, and, drawn, vis-a-vis, the years 1962-63, hence recording the plaintiff, as, a non-occupancy tenant, upon, the, suit khasra numbers, (i) and despite the afore entries, also continuing, upto, the year 1996-97, (ii) primarily, on anvil qua uncontrovertedly, the suit land becoming, in, the year 1959, hence mortgaged, vis-a-vis, one Ran Singh, and, thereafter, the plaintiff being recorded as, a, gair morusi in the column, of, possession, in the jamabandies, as, stood drawn, for, the year 1962-63, (ii) however, the suit land become redeemed by the defendants, in the year 1972-73, and, mutation bearing No. 629, becoming, in concurrence therewith hence attested. Consequently, the plaintiff was enjoined to make, a, deposition, vis-a-vis, the name hence with clarity, of, the land owners, and, qua his capacity, as, a tenant, under him, in the suit land, inasmuch as, his being enjoined to make bespeakings, vis-a-vis, his recorded possession, vis-a-vis, the suit land rather being in, the, capacity as, a, tenant. However, a, closest reading of his deposition reveals qua the afore being amiss therein, (a) inasmuch, as the land owner, whereunder when, he stood inducted, as, a tenant, in, the suit land, and, the exact time, whereat, he, stood inducted as, a, tenant, in the suit land, rather not with precision occurring therein, (b) whereupon, hence, the afore lack, of, precise bespeakings, in his deposition, does benumb, all the averments, as, carried in the plaint. Furthermore, his gross ignorance qua a mortgage being created, vis-a-vis, Ran Singh, and, qua the suit, and, thereafter, its redemption occurring in the year 1972-73, also constrain a conclusion, qua his afore ignorance, begetting concomitant effect(s), (c) qua his setting up, a, false projection, in the plaint, (d) and, with, a, further corollary thereto being qua also an inference becoming and engendered, vis-a-vis, his misespousing qua his holding possession, of, the suit land. The afore presumption of truth hence becomes scuttled, (e) and, carries, a, sequel qua the afore entries, occurring in the jamabandies appertaining, to, the suit land, and, borne, in, ext. D-1, to, Ext. D-15, hence carrying reflections, vis-a-vis, the plaintiff rather holding possession, as, a gair morusi tenant, upon, the suit khasra numbers, hence becoming ipso facto, on anvil of the afore ignorance, of, the plaintiff, rather becoming dislodged, and, rebutted. In aftermath, on anvil of the afore entries, the plaintiff being disabled, to, derive any capitalization. 10. Be that as it may, the plaintiff, had not claimed, any relief in the suit, hence, for quashing, and, setting aside Ext. In aftermath, on anvil of the afore entries, the plaintiff being disabled, to, derive any capitalization. 10. Be that as it may, the plaintiff, had not claimed, any relief in the suit, hence, for quashing, and, setting aside Ext. D-1, exhibit whereof, is, recorded, on 2.12.1992, hence by the Assistant Collector 2nd Grade, (i) where through, in substitution of the recorded possession, of, the plaintiff, vis-a-vis, the suit khasra numbers, rather, the possession, of, the defendants, was, reflected therein, (ii) yet, it appears that this Court had qua the afore unespoused relief, rather formulated substantial question, of, law No.1, (iii) hence, it appears, that obviously, the, afore formulated substantial question of law, is, beyond the espoused relief, in the suit, (iv) thereupon, this Court is of the formidable view, that it not being amenable, for, any answer, being meted thereon, (v) as, thereupon any answer, vis-avis, the plaintiff or the defendants, would assuredly sequel, the, inapt consequences, of, this Court proceeding, to, make or pronounce, a, decree, vis-a-vis, an unespoused relief. 11. The defendants had contrarily relied, upon, the afore exhibits, for sustaining their contention, vis-a-vis, theirs' therefrom, hence, holding evident possession, vis-a-vis, the suit khasra numbers. The order embodied, in Ext. D-1 underscores, vis-a-vis, it being preceded, by, a detailed verification, vis-a-vis, the suit khasra numbers, rather being made hence by the revenue official concerned, (i) and, also it being preceded, by, representation, therebefore, being made, on, behalf of the plaintiff, and, hence when the order, borne in Ext. D-1, remains un-sullied, by any vice, of, hence the solemn cannon, of, audi-alterum-partem, becoming infringed, (ii), it thereupon per-se comprise, a, valid piece of evidence, for, dislodging the presumption of truth, as, carried in the revenue entries, and, as embodied, in, the apposite jamabandies, appertaining to the suit land, and, commencing, from, the year 1962-63, and, ending in the year 1996-97, wherein the plaintiff, is, recorded, to, hold possession of the suit land, hence as a gair mursi. Furthermore, also a perusal of Ext. D-2, comprising, the, order, made, by the Assistant Collector, 1st Grade, on 15.3.2002, upon the plaintiffs' application, for, correction, of, revenue entries, does make unfoldments, vis-a-vis, his not being in evident possession, of, the suit property. Since the orders respectively, borne in Ext. D-1, and, in Ext. Furthermore, also a perusal of Ext. D-2, comprising, the, order, made, by the Assistant Collector, 1st Grade, on 15.3.2002, upon the plaintiffs' application, for, correction, of, revenue entries, does make unfoldments, vis-a-vis, his not being in evident possession, of, the suit property. Since the orders respectively, borne in Ext. D-1, and, in Ext. D-2, remained unchallenged, before the higher echolors, of, revenue officer(s) concerned, and, also when, the, plaintiff, does not espouse, any relief, qua the afore 424 orders, being set aside, hence they acquire conclusivity, and, binding effects, (i) and, hence reiteratedly, with the afore orders, making marked bespeakings, vis-a-vis, the, defendants holding possession, of the suit land, as gair mursi(s), (ii) thereupon, they prevail upon, and, benumb, all the entries, as, carried, in, the jamabandies, and, appertaining to the suit land, and commencing from years 1962-63, and, ending in the year 1996-97, (iii) wherein rather the plaintiff, is, recorded, in possession, of, the suit land, as, a gair mursi, also, hence the, requisite substitution, is, concluded, to be made, in accordance with law. 12. Lastly, the learned counsel, for the aggrieved plaintiff, has rested his submission, for, negating all the afore conclusion(s), (i) upon, a compromise, borne in Ext. PW-4/A, compromise whereof, is drawn on, 5.10.2001, (i) and, with clause-3 therein, making candid recitals, vis-a-vis, the plaintiff being acquiesced, to hold conditional possession, of, the suit land, uptil, a decision is recorded, upon, any sub-judice lis inter-se them, (ii) hence he contends, that, the plaintiff's suit, for rendition, of, a decree, for permanent prohibitory injunction, rather was decreeable. However, the afore submission, is, rejected, as, the apt clause-3, borne in Ext. PW-4/A, is, a conditional clause, and, also when he has remained unmindful, vis-a-vis, Ext. PW-4/A, standing drawn, on 15.10.2001, (iii) and, hence it appears, that, the afore referred conditional clause, only, appertains, to, the plaintiff, being acquiesced to hold, rather conditional possession, vis-a-vis, the, suit khasra numbers, upto, the authority concerned, pronouncing, a, verdict, upon, the sub-judice lis, inter-se them. However, when the sub-judice lis, inter-se, the contesting litigants, and, as, referred in clause-3 of Ext. PW-4/A, is, comprised, in, the application, and, whereon, an order borne in Ext. However, when the sub-judice lis, inter-se, the contesting litigants, and, as, referred in clause-3 of Ext. PW-4/A, is, comprised, in, the application, and, whereon, an order borne in Ext. D-2, hence stood, subsequent thereto rather rendered, on 15.3.2002, (iv) thereupon the afore clause works, vis-a-vis, the defendants, as, the imperative condition carried therein, unfolds qua, the, acquiesced possession of the plaintiff, in the suit khasra numbers rather remaining alive, only upto, the sub-judice lis, becoming finally adjudicated, (v) whereupon when, as, aforestated, the, apt sub-judice lis, whereon Ext. D-1, stood pronounced, is, borne in Ext. D-2, and, with Ext. D-1, acquiring conclusivity, and, finality, (vi) thereupon the effect, of, finality, being assigned, to Ext. D-2, is qua it negating, the, acquiescing condition, borne in Clause-3, and, obviously it enuring, for, the benefit, of, the defendants. 13. The above discussion, unfolds, qua the conclusion(s), as arrived by the learned Courts below, being based, upon a proper and mature appreciation, of, evidence on record. Accordingly, the substantial questions, of law, are, answered in favour of the respondents/defendants, and, against the appellant/plaintiff herein. 14. In view of the above discussion, the instant appeal, is, dismissed, and, the judgment and decree impugned, before this Court, is, 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.