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2019 DIGILAW 730 (HP)

Darshana Devi v. State of Himachal Pradesh

2019-06-18

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellants have challenged the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.), Court No. 1, Nurpur, District Kangra, HP, dated 23.07.2014, vide which a suit filed by the appellants/ plaintiffs for declaration qua the suit land as also for possession of the same with consequential relief of permanent injunction, restraining the defendants permanently from interfering in any manner over the peaceful possession of the plaintiffs over the suit land, was dismissed and also the judgment and decree passed by the learned Additional District Judge-1, Kangra at Dharmshala, Circuit Court at Nurpur, District Kangra, HP, in Civil Appeal No. 27-N/XIII/2014, vide which their appeal against the judgment and decree passed by the learned trial Court stands rejected. 2. Learned Counsel for the parties have been heard today for admission purpose. 3. Brief facts necessary for adjudication of this appeal are as under:- Appellants herein (hereinafter referred to as the 'plaintiffs’) filed a suit for declaration that they were owners in possession of the land comprised in Khata No. 752 min, Khatauni No. 962 min, Khasra Nos. 3202, 3204 and 3208, plots 3 (old Khasra Nos. 837 min, 837 min, 837 min), land measuring 424.79 sq meters, situated in Up-Mohal Rampuri, Nurpur town, Tehsil Nurpur, District Kangra, HP (hereinafter referred to as the 'suit land’) and that they were entitled to remain as owners in possession in future also of the suit land and entries reflecting the defendants as owners in the ownership column and Table Hakuk Bartandaran in the possessory column in revenue record were wrong, null and void and against law and facts as defendants never remained in possession in any capacity over the suit land and were having no right, title and interest over the suit land. According to the plaintiffs, the suit land was coming in their possession since the time of their ancestors. The abadi came to plaintiffs from the original owner Laxman. After the death of Laxman, suit land was inherited by Bhago and after Bhago by Kalu. The suit land was inherited by predecessor-in-interest of the plaintiffs Mangat Singh from Kalu and after the death of Mangat Singh, the same was inherited by the plaintiffs on the basis of Will dated 18.12.1999 executed by Mangat Singh in favour of the plaintiffs. After the death of Laxman, suit land was inherited by Bhago and after Bhago by Kalu. The suit land was inherited by predecessor-in-interest of the plaintiffs Mangat Singh from Kalu and after the death of Mangat Singh, the same was inherited by the plaintiffs on the basis of Will dated 18.12.1999 executed by Mangat Singh in favour of the plaintiffs. As per the plaintiffs settlement staff of the State had done great illegality at the back and without the consent of the plaintiffs by making entries in favour of the defendants which entries were wrong, illegal, null and void and not binding upon the plaintiffs. 4. The suit was resisted by the defendants. It was denied that there was any ancestral house of plaintiffs over the suit land or that plaintiffs were in the possession of the land since the time of their ancestors. As per the defendants, during settlement, suit land was found vacant and the local inhabitants were using the same as 'Chargah Bila Darkhatan’. Accordingly, entries were made in this regard as per the instructions of the Financial Commissioner. No objection was raised at the time of settlement by the plaintiffs or their ancestors. Said land was presently being managed and maintained by the Municipal Committee, Nurpur, and record of constructed area was duly prepared and maintained by the Municipal Committee, Nurpur and plaintiffs had no right, title or interest over the same. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues:- “1. Whether the plaintiffs are owners in possession of the suit land, as alleged? OPP 2. Whether the entries appearing in the record of rights showing the defendant as owner of the suit land and 'Tabe Kahuk Bartandaran’ in the possession of the same are wrong, null and void and not binding on the rights of the plaintiffs? OPP 3. Whether the plaintiff is entitled for the consequential relief of permanent injunction, as prayed for? OPP 4. Whether the suit is not maintainable? OPD 5. Whether this Court has no jurisdiction to tray and entertain the present suit? OPD 6. Whether the plaintiff has no cause of action to file the present suit? OPD 7. Whether the suit is bad for non-joinder of necessary parties? OPD 8. Whether the suit is time barred? OPD 9. OPP 4. Whether the suit is not maintainable? OPD 5. Whether this Court has no jurisdiction to tray and entertain the present suit? OPD 6. Whether the plaintiff has no cause of action to file the present suit? OPD 7. Whether the suit is bad for non-joinder of necessary parties? OPD 8. Whether the suit is time barred? OPD 9. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 10. Whether the plaintiff is estopped to file and maintain the suit due to her own act and conduct? OPD 11. Relief.” 6. On the basis of pleadings and evidence led by the parties in support of their respective cases, the issues so framed were answered by the learned trial Court as under:- “Issue No.1 : No. Issue No. 2 : No. Issue No. 3 : No. Issue No.4 : Yes. Issue No. 5 : Yes. Issue No. 6 : Yes. Issue No. 7 :No. Issue No. 8 :Yes Issue No. 9 :No. Issue No. 10 :No. Final Order : The instant suit is dismissed as per the operative portion of this judgment.” 7. Learned trial Court dismissed the suit by holding that in a suit for permanent injunction, plaintiff has to demonstrate that he is in possession of the suit land and as on the date of the suit, he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Learned trial Court also held that where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. But if the property is a vacant site, which is not physically possessed, used or enjoyed, then the principle is that possession follows title. It held that if two persons claim to be in possession of a vacant site, one who is able to establish title will be considered to be in possession as against who is not able to establish title. Learned trial Court thereafter held that the suit land comprised of three plots measuring 424.79 sq meters and as per jamabandi for the year 2002-03, the suit land was owned by the State and was shown to be in the possession of Bartan Daran. It further held that the suit land was described as 'charagah’. Learned trial Court thereafter held that the suit land comprised of three plots measuring 424.79 sq meters and as per jamabandi for the year 2002-03, the suit land was owned by the State and was shown to be in the possession of Bartan Daran. It further held that the suit land was described as 'charagah’. There was no tax receipt, water connection receipt or other document to show that plaintiffs were still having abadi over the suit land. Plaintiffs’ witnesses had stated that the suit land was vacant and Municipal Committee was taking care of that land. Learned trial Court held that claim of the plaintiffs that they still had abadi over the suit land was devoid of any evidence. Learned trial Court also held that as revenue entries could be assailed before a revenue Court, the Civil Court had no jurisdiction to try the suit and the suit was not maintainable under the garb of declaration. It also held that it stood established that plaintiffs were not having proprietary rights over the suit land, thus, plaintiffs had no cause of action to file and maintain the suit. On these bases, learned trial Court dismissed the suit. 8. Learned Appellate Court upheld the findings returned by the learned Trial Court. It held that Ext. P-9 to Ext. P-12, which were Jamabandis pertaining to the suit land demonstrated that the suit land was abIadi, owned and possessed by the proprietor of Tikka. The suit land had been carved out from Khasra No. 837, measuring 218 Kanals 6 Marlas. Large part of the land was 'gair mumkin abadi’. Jamabandis categorically demonstrated that the suit land was originally part of a big chunk of land. It held that as far as abadi deh is concerned, possession follows the title and to substantiate their possession, plaintiff Ravinder Singh, who entered the witness box as PW1, in his cross examination, could not tell as to whose land was situated towards southern and western side of the suit land. He had not preferred any appeal qua entries made during settlement. He had denied that Bartandaran were in possession of the suit land. He had not preferred any appeal qua entries made during settlement. He had denied that Bartandaran were in possession of the suit land. Learned Appellate Court also held that PW2 Harbans Singh and PW3 Chamaru Ram, who were examined as plaintiffs’ witnesses, feigned ignorance to the fact that as to in which Ward the suit land was situated and Chamaru Ram, in fact, admitted that he was resident of Bharmour and had no landed property in Nurpur. Learned Appellate Court also held that during settlement in Municipal area, entry of abadi deh in government notification were changed in the names of individual owners, who were found in possession on the spot and during settlement operation, the land, which was found vacant on the spot by the Settlement Collector, was recorded to be owned by the State of H.P. and in possession of Kabza Swayam Tabe Hakuk Bartandaran as reflected in the copy of Misal Haquiat Bandobast Jadid Ext. P-5. Learned Appellate Court also held that plaintiffs miserably failed to substantiate that they were proprietors of Mahal Lagore wherein the suit land was situated within the Lal Lakeer. Learned Appellate Court thus while concurring with the findings returned by the learned Trial Court, dismissed the appeal. 9. Feeling aggrieved, the appellants have filed the present appeal. 10. I have heard learned Counsel for the parties for the purpose of admission. 11. There are concurrent findings returned by both the learned Courts below that the plaintiffs were not in possession of the abadi land/suit land. These findings have been returned by the learned Courts below on the basis of record. Learned Counsel for the appellants during the course of arguments could not demonstrate that said findings were perverse and not borne out from the record of the case. Similarly, both the learned Courts below have concurrently returned the findings that at the time of settlement, the suit land was found vacant and accordingly, it was entered into the name of the State as per procedure. During the course of arguments, it could not be substantiated by the appellants that the said findings returned by both the learned Courts below were either perverse or not borne out from the record of the case. 12. As has been held by the learned Courts below, in a suit for injunction, the party has to prove that it is in possession of the suit land. 12. As has been held by the learned Courts below, in a suit for injunction, the party has to prove that it is in possession of the suit land. In the present case, appellants herein have not been able to prove their possession over the suit land. Whereas plaintiff Ravinder Singh in the witness box could not state as to whose land was contiguous to the suit land on the southern and western side of the same, PW2 Harbans Singh could not state as to in which Ward, the suit land was situated. PW3 was not even a resident of Nurpur, where the suit land was situated. Thus, there is no infirmity with the findings returned by both the learned Courts below to the effect that plaintiffs failed to demonstrate that they were in possession of the suit land. 13. The findings returned by the learned Courts below that the suit land was 'abadi deh’ and was in possession of Tabe Hakuk Bartandaran behind the back of the plaintiffs have been elaborately explained by both the learned Courts below on the basis of evidence on record. The suit was filed by the plaintiffs. Onus was upon them to have had proved their ownership and possession over the suit land, which they miserably failed to prove. Thus, in view of concurrent findings having been returned against the plaintiffs that they were not owners in possession of the suit land and the suit land, in fact, was owned by the State of Himachal Pradesh and was being looked after by the Municipal Committee, Nurpur, the judgments and decrees passed by the learned Courts below do not call for interference as during the course of arguments, appellants could not substantiate that any substantial question of law was involved in this appeal. Accordingly, this appeal being devoid of any merit is dismissed at the stage of admission itself. Pending miscellaneous application (s), if any also stand disposed of. No orders as to costs.