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Himachal Pradesh High Court · body

2019 DIGILAW 530 (HP)

Lekh Ram v. Chanchal Ram

2019-04-30

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellant/plaintiff has challenged the judgment and decree passed by the Court of learned Civil Judge (Senior Division) Court No.1 Mandi in Civil Suit No. 99/2002 dated 5.4.2005 vide which, relief to the extent of grant of injunction in favour of the plaintiff and against defendants qua Government land stood denied by learned Trial Court, as also the judgment and decree passed in appeal by the learned Presiding Officer, Fast Track Court, Mandi in Civil Appeal No. 54/2005, 193/2005 dated 8.11.2006 vide which appeal filed by present appellant against the judgment and decree passed by learned Trial Court stood dismissed. 2. Brief facts necessary for adjudication of the present appeal are that appellant/plaintiff (hereinafter referred to as plaintiff) filed a suit for permanent prohibitory injunction against the defendants, seeking injunction in respect of suit land as stated in para-1 and para-2 of the plaint. The suit land mentioned in para-1 was owned and possessed by the plaintiff, whereas as per averments made in the plaint, the suit land described in para-2 of the plaint though was owned by the Government, but was purportedly stated to be in possession of the plaintiff. The case of the plaintiff was that defendants who had no right, title or interest over the suit land were habitual and casual trespassers over the suit land and were causing obstruction by way of demolishing dunga, removing grass and maize crop etc. Defendants denied the claim of the plaintiff and stated that they had never trespassed upon the suit land owned by the plaintiff and as plaintiff was having inimical relations with them, the suit was in fact filed just to harass them. Defendants denied that the suit land mentioned in para-2 of the plaint was in possession of the plaintiff. 3. On the basis of pleadings of the parties, learned trial Court framed the following issues :- “1. Whether the plaintiff is joint owner in possession of the land described in para-1 of the plaint? OPP 2. Whether the plaintiff is in settled possession of the got. Land described in para-2 of the plaint? OPP 3. Whether the defendants without any right, and title are causing interference with the possession of the plaintiff in respect of land described in para-1 and 2 of the plaint? OPP 4. OPP 2. Whether the plaintiff is in settled possession of the got. Land described in para-2 of the plaint? OPP 3. Whether the defendants without any right, and title are causing interference with the possession of the plaintiff in respect of land described in para-1 and 2 of the plaint? OPP 4. Whether the defendants have caused damage to grass, maize crop and Danga existing over land mentioned above worth Rs. 18,000/- and plaintiff is entitled to recover the same from defendants? OPP 5. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction against defendants, as prayed for? OPP 6. Whether the suit in the present form is not maintainable as alleged? OPD 7. Whether the plaintiff has no cause of action to file the suit, as alleged? OPD 8. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction, as alleged? OPD 9. Relief.” 4. On the basis of evidence led by parties, learned trial Court returned the following findings on the said issues:- “Issue No.1 : Partly Yes. Issue No.2. : No. Issue No.3. : Partly Yes. Issue No.4. : No. Issue No.5. : Yes Issue No.6. : No. Issue No.7. : No. Issue No.8. : No. Relief : Suit partly decreed and partly dismissed per operative part of the judgment.” 5. Thus, learned trial Court decreed the suit of the plaintiff with regard to the suit land, details of which were described in para-1 of the plaint. However, with regard to land described in para-2 of the plaint, learned trial Court held that plaintiff was not entitled to the relief of injunction as plaintiff had failed to prove his possession over the suit land as also his locus to file the suit with regard to Government land described in para-2 of the plaint. 6. Feeling aggrieved, plaintiff filed an appeal. 7. Learned appellate Court while upholding the findings returned by learned trial Court held that except the bald statements of PW1 and PW2 that plaintiff was in possession of the Government land as described in para-2 of the plaint, there was no evidence on record to prove the same and the stand of the plaintiff was belied/contradicted by revenue record which was produced on record by the plaintiff himself. Learned appellate Court held that Ex. Learned appellate Court held that Ex. PB copy of jamabandi for the year 1995-96 clearly demonstrated that land described in para-2 of the plaint was recorded to be owned by the State of Himachal Pradesh and was in possession of estate right holders and there was no entry in the jamabandi that the plaintiff was in unauthorized possession over the suit land. It further held that presumption of truth was attached with the copy of latest jamabandi unless the same was rebutted and as entry in copy of jamabandi Ext. PB was against the plaintiff, onus was upon the plaintiff to rebut the said presumption by leading convincing and satisfactory evidence but plaintiff had failed to do so. It further held that the entry in the copy of Misal Haquiat Bandobast Jadeed Ex. PC in which land detailed in para-2 of the plaint was shown in possession of Hari Ram, who is alleged to be the grandfather of plaintiff was of no help to the plaintiff because said entry was a stray entry and plaintiff had failed to place on record any other jamabandi in which possession of the plaintiff or his grandfather over the Government land was recorded. It held that said entry as contained in the copy of Missal Haquiat Bandobast Jadeed Ex. PC stood rebutted by the entry in latest jamabandi i.e. Ext. PB in which the land defined in para-2 of the plaint was recorded to be in possession of estate right holders. Learned appellate Court further held that it was settled law that in case of conflict between the latest revenue entry and previous revenue entry, it is the latest entry which will prevail over the previous revenue entry unless it is shown that the latest revenue entry was incorporated without following the proper procedure. It held that plaintiff did not lead any evidence to prove that entry in the copy of jamabandi Ex. PB was incorrect and the same was not incorporated in accordance with the prescribed procedure. On these basis, learned appellate Court dismissed the appeal. 8. Feeling aggrieved, appellant filed this present appeal which was admitted on the following substantial question of law:- “Whether both the ld. Courts below have misread, misinterpreted and misconstrued the oral as well as documentary evidence of the parties especiall9y Ex.P2, Ex.PW5/A, Ex.PW6/A, Ex.PW7/A and Ex.PD, which has materially prejudiced the case of the appellant? 9. 8. Feeling aggrieved, appellant filed this present appeal which was admitted on the following substantial question of law:- “Whether both the ld. Courts below have misread, misinterpreted and misconstrued the oral as well as documentary evidence of the parties especiall9y Ex.P2, Ex.PW5/A, Ex.PW6/A, Ex.PW7/A and Ex.PD, which has materially prejudiced the case of the appellant? 9. 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 the learned Courts below. 10. There is a concurrent finding of fact returned by both the learned Courts below against the plaintiff that he was not able to prove that suit land described in para-2 of the plaint was in his possession. A perusal of the record demonstrates that findings so returned by both the learned Courts below are duly borne out from the record of the case and the same cannot be said to be perverse findings. The documents which find mention in the substantial question of law do not further the case of the plaintiff because fact of the matter remains that Ex.PB, which is the latest revenue entry placed on record by the plaintiff himself demonstrates that the suit land mentioned in para-2 of the plaint though was owned by the Government, but it was shown to be in possession of the estate right holders. As held by learned both Courts below, onus was squarely upon the plaintiff to have had proved that the said revenue entry was incorrect and it was the plaintiff who was in possession over the suit land. As I have already mentioned herein-above that there is a concurrent finding returned against the plaintiff that it is not he who is in possession over the suit land prescribed in para-2 of the plaint, but the same is in possession of the estate right holders. The findings returned by both the learned Courts below are based upon the entry as contained in Ext.PB Jamabandi of year 1995-1996. During the course of arguments learned counsel for the appellant relied upon the entry contained in Ext. PC, but the fact of the matter remains, as rightly observed by learned appellate Court, this was a stray entry and there was nothing on record as to how this entry came to be incorporated in the Misal Haquiat. During the course of arguments learned counsel for the appellant relied upon the entry contained in Ext. PC, but the fact of the matter remains, as rightly observed by learned appellate Court, this was a stray entry and there was nothing on record as to how this entry came to be incorporated in the Misal Haquiat. Thus there is no infirmity with the findings returned by both the learned Courts below to the effect that the suit land prescribed in para-2 of the plaint was not in possession of the plaintiff. Substantial question of law is answered accordingly. The appeal is accordingly dismissed. No order as to cost. Pending miscellaneous applications, if any, also stand disposed of.