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2019 DIGILAW 301 (HP)

Munish Kumar Bali v. State of H. P.

2019-03-19

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellant has challenged the judgment and decree passed by the Court of learned Civil Judge (Junior Division) Court No.2, Nurpur, District Kangra in Civil Suit No. 181/1991 dated 6.6.2012, vide which a suit for declaration filed by his predecessor-in-interest was dismissed by the said Court and also the judgment and decree passed by the Court of learned Additional District Judge-I, Kangra at Dharamshala Circuit Court at Nurpur, District Kangra whereby appeal filed by him against the judgment and decree passed by the learned trial Court stood dismissed. 2. Brief facts necessary for adjudication of the case are that predecessor-in interest of the appellant, namely, Smt. Raj Rani filed a suit for declaration that she was owner in possession of abadi area comprised in khasra No. 952/797 which during settlement was converted into khasra No. 3585 measuring 255sq. Meters, situated in Up Mohal Rampuri, Ward No.7, Nurpur, Tehsil Nurpur District Kangra and that defendant No.1 neither had any right title or interest over the suit land nor said defendant was entitled to interfere in any manner in the ownership and possession of the plaintiff over the suit land or to dispossess her by demolishing her construction. According to the plaintiff, the residential abadi plot i.e. the suit land was sold to her by one Som Raj on 10.5.1989 vide registered Sale Deed of the even date for a consideration of Rs.6,000/- and thereafter, possession of the suit land was with plaintiff, who along with her husband constructed a residential house upon the same. The suit land was wrongly entered in the name of defendant No.1. The Settlement Collector on an application of Som Raj had ordered correction of revenue entries vide order dated 27.4.1989 and necessary corrections were also incorporated in 'Misal Haquiat Bandobast’ for the year 1987-88. Defendants No.3 and 4, who were strangers qua the suit land, but were inimical towards Som Raj filed an application before Divisional Commissioner, Kangra for setting aside the order passed by the Collector and the same was set aside by Divisional Commissioner Kangra on 5.9.1990. As per the plaintiff, this order was null and void, as State was never the owner of the abadi area nor defendant No.1 ever came to be in possession of the same. As per the plaintiff, this order was null and void, as State was never the owner of the abadi area nor defendant No.1 ever came to be in possession of the same. According to the plaintiff, taking advantage of the order passed by Divisional Commissioner, defendants had starred interfering in her possession and were threatening to demolish the construction carried out by her. In these circumstances, the suit was filed. 3. The suit was contested by the defendants. They took the stand that during settlement operation, Som Raj was not found owner in possession of the suit land at the spot and thereafter the land was rightly entered in the ownership of defendant No.1. According to defendants, Sale Deed executed by Som Raj in favour of plaintiff was nullity in the eyes of law as Som Raj had no right, title or interest to hand over the possession of the suit land to the plaintiff. It was further the case of defendant that the order of Divisional Commissioner, vide which order in favour of Som Raj by Settlement Collector was set aside was a valid order as the suit land was owned by defendant No.1 and not by the plaintiff. It was also the stand of defendants that earlier suit land along with adjoining land belonged to one Golu Tarkhan and Ram Shah Khatri. Ram Shah Khatri was owner of 15 kanals land and he sold the same to Roshan Lal in the year 1976-77. Roshan Lal also purchased khasra No. 3586 & 3587 and during settlement, he dedicated both these khasra numbers for charity purpose and thereafter they stood recorded in the ownership of the State of Himachal Pradesh. As Golu Tarkhan was issueless, he also dedicated his entire land for the purpose of charity and also constructed a temple over the aforesaid land. Private defendants claimed themselves to be a Collateral of Golu Tarkhan and contended that the suit land was rightly recorded in the ownership and possession of the State of Himachal Pradesh, as the suit land was never ever sold to Som Raj nor was it ever gifted to him. As per defendants, Som Raj had illegally got certain revenue entries made in his favour at the back of the Collaterals of Golu Tarkhan, which illegal entries rightly stood corrected by the order of Divisional Commissioner Kangra. 4. As per defendants, Som Raj had illegally got certain revenue entries made in his favour at the back of the Collaterals of Golu Tarkhan, which illegal entries rightly stood corrected by the order of Divisional Commissioner Kangra. 4. On the basis of pleadings of the parties and material placed on record, learned trial court framed the following issues:- “1. Whether the plaintiff is the owner in possession of the suit land, as alleged? OPP 2. If Issue No.1 is proved, whether the defendant No.1 interferes in the ownership and possession of the plaintiff over the suit land, as alleged? OPP 3. Whether order dated 5.9.90 passed by the Divisional Commissioner, Kangra at Dharamshala transferring the ownership in the name of defendant No.1 at the instance of defendants No.3 and 4 is wrong, illegal, arbitrary, without jurisdiction, null and void and not binding upon the rights of the plaintiff, as alleged? OPP 4. Whether the suit is not maintainable in the present form, as alleged? OPD-1 5. Whether the plaintiff had got no legally enforceable cause of action, as alleged? OPD-1 6. Whether no legal and valid notice under Section 80 CPC has been served upon the defendant No.1, as alleged? OPD-1 7. Whether this Court has got no jurisdiction to try the present suit, as alleged?OPD-1 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged?OPD-1 9. Whether the plaintiff has no locus standi to sue, as alleged? OPD-3&4. 10. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD 3&4. 10A) Whether the plaintiff being the resident of Punjab was not agriculturist and not entitled to purchase the land within the State of HP on 10.5.1989 and the sale deed if proved is illegal, null and void and against the provisions of Section 118 of HP Tenancy and Land Reforms Act, OPD 11. Relief.” 5. On the basis of evidence both ocular and documentary learned trial court returned the following findings on the said issues:- “Issue No.1 Partly Yes. Issue No.2 No. Issue No.3 No. Issue No.4 No. Issue No.5 No. Issue No.6 No. Issue No.7 No. Issue No.8 No. Issue No.9 No. Issue No.10 No. Issue No.10A Yes. Relief The Suit is dismissed as per operative part of the judgment.” 6. Issue No.2 No. Issue No.3 No. Issue No.4 No. Issue No.5 No. Issue No.6 No. Issue No.7 No. Issue No.8 No. Issue No.9 No. Issue No.10 No. Issue No.10A Yes. Relief The Suit is dismissed as per operative part of the judgment.” 6. Learned trial court held that though plaintiff had failed to prove on record her ownership right over the suit land, but it stood proved on record that she was in possession over the same, which fact stood admitted even by defendant No.4 Tara Chand. Learned trial court also held that the order passed by Divisional Commissioner suffered from no illegality and plaintiff had failed to demonstrate as to how the order of Divisional Commissioner was bad in law. It also held that it stood proved that the order was passed by Divisional Commissioner after following the principles of natural justice and after providing ample opportunities to all the parties to put-forth their case. Learned trial court also held that no responsible person was examined from the locality to prove that Som Raj was ever in possession of the suit land at the time of settlement. The suit filed by plaintiff was thus dismissed by learned trial court by holding that though plaintiff was held to be in possession of the suit, but she was not held to be owner of the same. 7. Learned appellate court upheld these findings. It held that evidence on record demonstrated that plaintiff was not owner of the agricultural land nor plaintiff had entered the witness box to throw light on this aspect of the case. Learned appellate court also held that evidence demonstrated that plaintiff was from Punjab. He was not having any agricultural land in Himachal and plaintiff being a non-agriculturist in Himachal was not competent to purchase the suit land. It further held that though the evidence on record demonstrated that the suit land was in possession of the plaintiff, however, there was nothing on record to demonstrate that plaintiff was also the owner of the same. 8. Feeling aggrieved appellant has filed this appeal. 9. It further held that though the evidence on record demonstrated that the suit land was in possession of the plaintiff, however, there was nothing on record to demonstrate that plaintiff was also the owner of the same. 8. Feeling aggrieved appellant has filed this appeal. 9. Learned counsel for the appellant has argued that the findings returned by learned courts below are perverse, as both the learned courts below have erred in not appreciating that the plaintiff was owner in possession of the suit land, as the same was duly purchased by the plaintiff from its previous owner namely Som Raj. On these basis, he argued that there are substantial question of law involved in the appeal and the judgments and decrees passed by learned courts below were liable to be set aside. 10. On the other hand, learned Additional Advocate General appearing for the respondents has argued that there was no infirmity with the judgments and decrees passed by learned courts below and as there was no substantial question of law involved in the appeal, the same deserves dismissal at this stage itself. 11. I have heard learned counsel for the parties and have also gone through the record of the case as well as judgments and decrees passed by both learned courts below. 12. Having carefully gone through the judgments and decrees passed by learned courts below, this Court is of the view that there is no substantial question of law involved in this appeal The suit filed by the plaintiff was for declaration that plaintiff was owner in possession of the suit land, which was part of abadi, on the ground that the same stood purchased by her from its previous owner by way of a valid registered Sale Deed. Both the learned courts below have concurrently held that plaintiff was not the owner of the suit land. It is a matter of record that the suit land was previously owned by Golu Tarkhan and Ram Shah Khatri. Said Ram Shah Khatri sold his share to Roshan Lal. It is also a matter of record that Golu Tarkhan and Roshan Lal had dedicated the suit land for charity purpose and in this background the same stood recorded in the name of the State. Said Ram Shah Khatri sold his share to Roshan Lal. It is also a matter of record that Golu Tarkhan and Roshan Lal had dedicated the suit land for charity purpose and in this background the same stood recorded in the name of the State. The private defendants in the Civil Suit are none other but the Collateral of Golu Tarkhan, who took the stand in the written statement that though they had inherited the estate of Golu Tarkhan, but rather than using it for their personal use they had carried out the tradition of Golu Tarkhan i.e., the land is being used for the benefit of all. 13. During the course of arguments, learned counsel for the appellant could not demonstrate that these findings are either perverse or were not borne out from the record of the case. Both the learned courts below after proper appreciation of evidence on record have returned the findings that order of the Divisional Commissioner setting aside the order of Settlement Collector was a valid order and as the suit land never belonged to Som Raj and therefore he had no right whatsoever to alienate the same by way of Sale Deed in favour of the plaintiff. Whether or not the suit land belonged to defendant No.1 or Som Raj is a question of fact and not of law. Findings stand returned against the plaintiff by both the learned courts below to the effect that Som Raj was not the owner of the suit land and the same belonged to the Government and therefore, Som Raj could not have sold the same to the plaintiff. Learned courts below have returned these findings on the basis of evidence produced on record by the defendants. Thus the core issue involved in this case, whether or not the suit land was owned by defendant No.1, having been concurrently decided in favour of said defendant by both the learned courts bellow, this Court is satisfied that there is no substantial question of law involved in this appeal and the same is liable to be dismissed at admission stage itself. The appeal is accordingly dismissed. No order as to cost. Pending miscellaneous applications, if any, also stand disposed of.