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2019 DIGILAW 1903 (HP)

Kalan Devi v. Munshi Ram

2019-12-12

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal has been maintained by the appellant, who was the plaintiff before the learned trial Court (hereinafter to be called as “the plaintiff”), laying challenge to the judgment and decree, dated 21.03.2005, passed by learned Additional District Judge, Ghumarwin, District Bilaspur, H.P., in Civil Appeal No. 210/13 of 2004/1999, whereby the judgment and decree, dated 26.04.1999, passed by learned Sub-Judge 1st Class, Ghumarwin, District Bilaspur, H.P. was affirmed, wherein suit of the plaintiff was dismissed. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal are that the plaintiff filed a suit against the respondent-defendant (hereinafter to be called as “the defendant”), seeking declaration and possession of land measuring 0.12 biswas, comprised in Khata/Khatouni No. 5/6, Khasra No. 60, situated in village Bhagot, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur (hereinafter to be called as the “suit land”), wherein it has been averred that previously Bihari Lal, brother of the plaintiff was owner in possession of the suit land, who was unmarried and after his death, the plaintiff had inherited his property including the suit land, whereas, the defendant is shown as non-occupancy tenant thorough Saju Devi, widow of late Fithu, who died about eight years back. It has been further averred that after the death of Saju Devi, the defendant in connivance with the revenue officials, got his name entered as non-occupancy tenant in the suit land and forcibly occupied the land about 5-6 years back, as such, the entries in favour of the defendant in the revenue record are wrong and illegal. 3. The suit of the plaintiff was contested by the defendant by filing written statement, wherein preliminary objections qua maintainability, cause of action, locus standi, limitation and estoppal have been taken. On merits, it has been averred that Bihari Lal, predecessor-in-interest of the plaintiff never remained in possession of the suit land. In fact, Saju had become owner in possession of the suit land by way of adverse possession prior to consolidation operation and during consolidation operation in the year 1961-62, the consolidation authorities had alloted the suit land to her. It has been further averred that Saju vide Gift Deed, dated 22.02.1968 had gifted her entire property including the suit land in favour of the defendant and since then, the defendant has been owner in possession of the same. It has been further averred that Saju vide Gift Deed, dated 22.02.1968 had gifted her entire property including the suit land in favour of the defendant and since then, the defendant has been owner in possession of the same. The defendant has also claimed that he has become owner of the suit land by way of adverse possession and prayed for dismissal of the suit with costs. 4. By filing replication, the contents of the plaint were reasserted. 5. On the pleadings of the parties, the learned trial Court framed the following issues for determination and adjudication: “1. Whether the plaintiff is owner-in-possession of the suit land, as alleged? OPP 2. Whether the revenue entry qua the suit land in favour of the defendant is wrong and illegal? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff has no cause of action to file the suit? OPD 5. Whether the plaintiff has no locus standi to file the suit? OPD 6. Whether the suit is barred by limitation? OPD 7. Whether the plaintiff is estopped to file the suit due to her acts and conduct? OPD 8. Whether the defendant has become owner of the suit land by way of adverse possession as alleged? OPD 9. Relief.” 6. After deciding issues No. 1 to 5, 7 & 8 in negative and issue No. 6 in affirmative, the suit of the plaintiff was dismissed. Subsequently, the plaintiff maintained an appeal before the learned first Appellate Court, which was also dismissed and the judgment and decree of learned trial Court was affirmed. Hence, the present regular second appeal, which was admitted for hearing on the following substantial questions of law: “1. Whether the finding returned by the trial Court that suit was barred by time is contrary to the provisions of law? 2. Whether the first Appellate Court has fallen in error and has committed a serious illegality in holding that the plaintiff-appellant is not the owner of the suit land and at the same time holding that the respondent too has not acquired title by prescription? 7. Ms. Tim Saran, learned Counsel for the appellant has argued that the learned Court below has failed to take into consideration the fact that the defendant never remained tenant of the brother of the plaintiff, Bihari Lal and the land in dispute could not have gone to him. 7. Ms. Tim Saran, learned Counsel for the appellant has argued that the learned Court below has failed to take into consideration the fact that the defendant never remained tenant of the brother of the plaintiff, Bihari Lal and the land in dispute could not have gone to him. She has further argued that the entries in the Jamabandi were rebuttable and has been rebutted by the statement of the plaintiff. She has further argued that the tenant of the widow cannot become the owner of the land by way of adverse possession and the learned Court below has not decided the question of title. She has argued that though the plea of adverse possession of the defendant has been dismissed, however, the suit which was required to be decreed, was not decreed. 8. On the other hand, Mr. N.S. Chandel, learned Senior Counsel appearing on behalf of the respondent has argued that the defendant was the tenant of Saju and was maintaining her and Saju has gifted 8 bighas of land to him. Further, the defendant was also tenant qua the present suit land as non-occupancy tenant and after the death of Saju, he remained continuous tenant of Bihari Lal and after the death of Bihari Lal, the appellant has nothing to do with the suit land, as the defendant has become owner of the suit land. He has further argued that the suit was filed beyond the limitation and the revenue entries, which were in favour of the defendant from 1961-62, were not rebutted. 9. In rebuttal, Ms. Tim Saran, learned Counsel has argued that the findings of the learned Court below are perverse and required to be set aside. 10. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 11. The plaintiff, in order to prove the case has examined herself as PW-1 and deposed that Bihari Lal was her real brother and was in possession of the suit land, as such, the inheritance of her brother will come to her. She has further deposed that Girdawari has been wrongly entered in the name of the defendant. She denied that the defendant is non-occupancy tenant over the suit land. In cross-examination, she denied that at the time of consolidation, the suit land was allotted to late Saju and she had gifted the same to the defendant. 12. She has further deposed that Girdawari has been wrongly entered in the name of the defendant. She denied that the defendant is non-occupancy tenant over the suit land. In cross-examination, she denied that at the time of consolidation, the suit land was allotted to late Saju and she had gifted the same to the defendant. 12. The defendant, Munshi Ram, appeared in the witness box as DW-1 and deposed that late Saju had become owner of the suit land by adverse possession and gifted her entire property including the suit land in his favour in the year 1968, as such, he had also become owner of the suit land by way of adverse possession. In cross-examination, he denied the case of the plaintiff. 13. DW-2, Nand Lal, attesting witness of Gift Deed, Ext. DW-2/A, has deposed that Gift Deed was executed by Saju in his presence, which was scribed by petition writer in his presence. He further deposed that Gift Deed was firstly read over and explained to late Saju and then she had signed the same in his presence. 14. DW-3, Bhagirath, has deposed that Bihari Lal never remained in possession of the suit land, as previously the suit land was in possession of Saju and thereafter she had gifted the same to the defendant. 15. The case of the plaintiff is that Bihari Lal, who was unmarried and died issue-less, was her brother and in possession of the suit land and after his death, she, being his sister, inherited the suit land. On the other hand, after the death of Saju, the defendant manipulated entries of the revenue record qua the suit land in his favour and later on forcibly occupied the suit land, as such, she is entitled to a decree for declaration and possession. 16. Whereas, case of the defendant is that Saju had become owner of the suit land by way of adverse possession before consolidation operation and during consolidation operation, the suit land was allotted to her, as such, she was owner in possession of the suit land by way of adverse possession. Further, Saju had gifted her entire estate including the suit land in favour of the defendant, vide registered Gift Deed, Ext. DW-2/A, thus, he had become owner of the suit land by way of adverse possession. 17. In copies of Jamabandies (Exts. Further, Saju had gifted her entire estate including the suit land in favour of the defendant, vide registered Gift Deed, Ext. DW-2/A, thus, he had become owner of the suit land by way of adverse possession. 17. In copies of Jamabandies (Exts. PA & DC) for the year 1991-92, Bihari Lal is recorded owner of the suit land and Saju is recorded as “Gair Moursi Abbal”, whereas Munshi Ram is recorded as “Gair Moursi Doem” and entries in remarks column No. 9 are that Saju is owner of the land till her life and Munshi Ram is in possession thereof as tenant in lieu of rendering personal services. Further, there are entries in remarks column that mutation No. 139 of inheritance of Bihari Lal has been attested in the name of Smt. Kalan Devi on 28.11.1994. In copy of Jamabandi for the year 1981-82, Ext. DA, Bihari Lal is recorded owner of the suit land and Saju is recorded in column of possession as “Gair Moursi Abbal” and Munshi Ram as “Gair Moursi Doem”, whereas entries in column No. 9 are that Saju is owner till her life and Munshi Ram is tenant in possession in lieu of rendering personal services. In copy of Jamabandi for the year 1961-62, Ext. DB, Bihari Lal is recorded as owner and Saju is recorded in column of possession as “Gair Moursi” and entries in column No. 9 are that Saju is owner of the land without paying rent. In copy of Khasra Girdawari for the period from Kharif 1977 to Rabi 1982, Ext. DD, Bihari Lal is recorded owner of the suit land and Saju as “Gair Moursi” as owner and at the time of recording Khasra Girdawari for Kharif 1980, entries were made that Munshi Ram was inducted tenant by Saju in lieu of rendering personal services. 18. As far as Bihari Lal is concerned, he has never instituted any suit against Munshi Ram qua the suit land. It is also on record that Munshi Ram was maintaining Saju and that is why the entries in the revenue record to the extent of “Bila Lagan Batswar Malkiyat Khud Parvarish Min Jabib Gair Moursi Abal” has been shown, which shows that Munshi Ram was maintaining the deceased and in lieu of the maintenance, she has gifted him 8 bighas of land. 19. 19. Whereas, the plaintiff was unaware about the time when the defendant has come into possession of the present suit land. The plaintiff also remained unaware as to when revenue entries came into existence and the evidence which she has led is nowhere of the standard, required to rebut the presumption of truth in the revenue record and in favour of the defendant and when the revenue entries were not rebutted and even the plaintiff herself was not aware from when the revenue entries existed in favour of the defendant, the learned trial Court has not committed any illegality in dismissing the suit, being barred by time, and substantial question of law No. 1 is answered accordingly. Though, the defendant has failed to prove the adverse possession, but, he was occupying the land as a tenant of Bihari Lal and he has right under the Tenancy and Land Reform Act (for short “Act”). However, since this was not the subject matter of the dispute, the learned first Appellate Court has not committed any illegality in not deciding with respect to ownership, on the basis of tenancy and acquired right, being a tenant and substantial question of law No. 2 is answered accordingly. 20. As far as cross-objections are concerned, the same are considered, however, ingredients of adverse possession are not proved by the defendant. The defendant cannot be declared owner because of adverse possession, as is continuing as tenant, so his right to become owner by the Act of the State neither are involved in the present litigation nor required to be decided, as such, needs no findings, as it is a matter required to be dealt with by the revenue Courts. 21. The net result of the above discussion is that the instant appeal, as well as cross-objections, sans merit, deserves dismissal and are accordingly dismissed. Pending applications, if any, also stands dismissed.