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2019 DIGILAW 414 (HP)

Murari Dass v. Gopal Dass

2019-04-10

TARLOK SINGH CHAUHAN

body2019
JUDGMENT Tarlok Singh Chauhan, J. - Defendant No.1 is the appellant, who after having lost in both the learned Courts below, has filed the instant regular second appeal. 2. The parties shall be referred to as the ''plaintiff'' and the ''defendants''. 3. The plaintiff filed a suit for declaration to the effect that the plaintiff is the joint owner in possession along with his share holders as entered in the jamabandi for the year 1991-92, comprised in Khewat No. 264, Khatauni No. 413/414/415, Khasra Nos. 601, 653, 675, 683, 1431, 791, 1378 and 1377, measuring 4-7 bighas, situated at Village Panjgain, Pargana and Tehsil, Sadar, District Bilaspur, H.P. and the entry in the names of the defendants in column No.9 as ''Babajah Rehan'' is illegal, void, without any basis, against Act, Rules and Statute and against the principles of natural justice which does not bind the plaintiff in any manner and for permanent prohibitory injunction restraining the defendants not to interfere in the ownership and possession of the plaintiff in any manner. In the alternative, suit for possession on the basis of title, if the defendants claim their possession on the basis of illegal entries. It was averred that defendants in connivance with the field staff of the revenue department manipulated the alleged entry of mortgage of the suit land contrary to law and that too behind the back of the plaintiff and his predecessor-in-interest. It was further averred that the defendants never possessed any part of the suit land at any time and now on the basis of the alleged entries, they are threatening to take forcible possession of the same to which the plaintiff resisted, but in vain. As per plaintiff, on 07.06.1996, he came to know from the Halqua Patwari that the defendants have manipulated a fictitious entry of the suit land. The cause of action arose to the plaintiff on 02.06.1996 when the defendants threatened to take forcible possession of the suit land, hence, the suit. 4. Defendant No.1 resisted the suit by filing written statement wherein he took preliminary objections qua maintainability, limitation, cause of action and non-joinder of necessary parties. On merits, it was averred by defendant No.1 that he is owner in possession of Khasra Nos. 791, 1378 and 1377 since the plaintiff failed to redeem the suit land within the stipulated period of 30 years and the land comprised in Khasra Nos. On merits, it was averred by defendant No.1 that he is owner in possession of Khasra Nos. 791, 1378 and 1377 since the plaintiff failed to redeem the suit land within the stipulated period of 30 years and the land comprised in Khasra Nos. 791, 1378, 1377 in Khata No. 264, Khatauni Nos. 414 and 415 was mortgaged by the ancestors of the plaintiff about 100 years ago with the ancestors of the defendant, as such, the plaintiff had no right to file the suit and the same is time barred. In the alternative, it was further averred that if the defendant failed to prove the mortgage, in that event, he has become owner of Khasra Nos. 791, 1378 and 1377 by way of adverse possession. Defendant No.1 also averred that he has no concern with the land in Khatauni No. 413, however, he has claimed exclusive ownership and possession of Khasra Nos. 791, 1378 and 1377. 5. Defendant No.2 did not contest the suit and he was ordered to be proceeded ex parte vide order dated 13.09.1996. 6. The plaintiff filed replication wherein he reiterated the averments made in the plaint and that of the written statement were denied. 7. From the pleadings of the parties, the learned trial Court on 16.04.1999 framed the following issues:- "1. Whether the plaintiff is joint owner in possession and entry of defendants as "Babajah Rehan" is illegal, void as alleged? OPP. 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? OPP. 3. Whether the defendants have become owners by foreclosure as alleged? OPD. 4. Whether the defendant No.1 has become owner in possession of the suit land by way of adverse possession? OPD. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the plaintiff has no cause of action to file the present suit? OPD. 7. Whether the suit is time barred? OPD. 8. Whether the suit is not maintainable for the nonjoinder of necessary parties? OPD. 9. Relief." 8. In support of his evidence, the plaintiff tendered certain documents and thereafter closed the evidence in affirmative. OPD. 6. Whether the plaintiff has no cause of action to file the present suit? OPD. 7. Whether the suit is time barred? OPD. 8. Whether the suit is not maintainable for the nonjoinder of necessary parties? OPD. 9. Relief." 8. In support of his evidence, the plaintiff tendered certain documents and thereafter closed the evidence in affirmative. However, the defendant did not lead any evidence, whereas the plaintiff examined two witnesses in rebuttal and on the basis of the evidence coming on record, the learned trial Court decreed the suit and the said judgment and decree were affirmed by the learned first appellate Court, constraining the defendant to file the instant appeal. 9. It is vehemently argued by Shri G.D.Verma, Senior Advocate, assisted by Shri B.C.Verma, Advocate, for the defendant/appellant that once the defendant had not led any oral evidence, the plaintiff had no right to lead evidence in rebuttal, therefore, the judgment and decree passed by the learned first appellate Court which is based entirely on the basis of two witnesses i.e. PW-1 and PW-2, who were in fact examined in rebuttal evidence, is not sustainable in the eyes of law and, therefore, deserve to be set aside. 10. On the other hand, Shri Bhupender Gupta, Senior Advocate, assisted by Shri Janesh Gupta, Advocate, for plaintiff/respondent No.1 would argue that the learned first appellate Court has only made a reference to the statements of PW-1 and PW-2, whereas, the basis for confirming the judgment and decree of the learned trial Court is the oral evidence that has been led and has gone unrebutted on record. 11. I have heard the learned counsel for the parties and have also gone through the records of the case. 12. At the outset, it needs to be observed that the parties are ad idem and even otherwise it is borne out from the facts that the plaintiff only led documentary evidence and thereafter closed its evidence in affirmative, whereas, the defendant had not led any evidence and in such circumstances, there was no question of the plaintiff being allowed much less permitted to lead evidence in rebuttal. Therefore, the evidence of PW-1 and PW-2 cannot be looked into by the Court. 13. Therefore, the evidence of PW-1 and PW-2 cannot be looked into by the Court. 13. However, now the moot question is whether the decree of the learned first appellate Court in which the decree of the learned trial Court has merged, has been passed on the basis of the statements of PW-1 and PW-2 or is based on the documentary evidence produced by the plaintiff. 14. For this purpose, it would be necessary to notice that the learned first appellate Court in paras 18 and 19 has made cursory reference to the statements of PW-1 and PW-2 and has thereafter discussed the entire documentary evidence produced by the plaintiff from paragraphs 20 to 26 of the impugned judgment which in fact forms the basis of dismissing the appeal. Nowhere, in these paragraphs has there been any reference to the oral evidence i.e. statements of PW-1 and PW-2. In these circumstances, the contention raised by the learned counsel for the defendant/appellant that the basis of the judgment of the learned first appellate Court is the oral testimonies of PW-1 and PW-2 is fallacious and contrary to the records. 15. As regards the documentary evidence on record, the same has been appreciated in its right perspective. Exhibit PA is the copy of ''missal-haqiyat'' for the year 1968-69 of Mauza Panjgain which shows the father of the plaintiff Shri Nathu as coowner in the column of ownership along with other co-sharers, but in Khatauni Nos. 492 and 493 Shri Murari Dass and Shri Bohra defendants have been recorded as ''Davedar Rehan'' under Shri Nathu. Exhibit PB is the copy of the jamabandi for the year 1960-61 which shows that previous Khata No. 198 has been recorded as 199. Shri Gokul, Nathu and other co-sharers have been recorded as owners in possession of the suit land on Khata No.156 which was previously Khata No.155. Exhibit PC is the copy of the jamabandi for the year 1961-62 regarding Khewat No.151 and previous Khewat No.150, wherein Shri Nathu, Ram Lal and other co-sharers have been recorded as owners in possession of the suit land. To similar effect is Ex. PD which is copy of jamabandi for the year 1960-61 in which Khewat No. 152 previously Khewat No. 151, is shown in the ownership and possession of Nathu and other co-sharers. This position is reflected in Ex. To similar effect is Ex. PD which is copy of jamabandi for the year 1960-61 in which Khewat No. 152 previously Khewat No. 151, is shown in the ownership and possession of Nathu and other co-sharers. This position is reflected in Ex. PE the copy of jamabandi for the year 1991-92 wherein the ownership and possession of Shri Nathu and other co-sharers is recorded, whereas, the defendant is shown as ''Davedar Rehan'' under Nathu. 16. The pleaded case of the defendant is that the land comprised in Khasra Nos. 791, 1378 and 1377, measuring 15 biswas was mortgaged with his ancestors by the ancestors of the plaintiff about 100 years ago, but then the defendant has led no oral and documentary evidence to this effect. The defendant has failed to prove as to who created the mortgage and when the same was in fact created. The defendant is otherwise silent with regard to mortgage being oral or through a written instrument. It was for the defendant to have proved as to how and under what circumstances the entry as ''Davedar Rehan'' came into existence in the column of cultivation. However, since the defendant failed to lead any evidence, be it oral or documentary evidence, he has no one to blame except himself. 17. The findings recorded by the learned Courts below are pure findings of fact. No question of law, much less any substantial question of law, arises for determination in this appeal. 18. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.