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2021 DIGILAW 404 (HP)

Thopi & Ors. v. Gawanu (since Deceased)

2021-07-14

SURESHWAR THAKUR

body2021
JUDGMENT Sureshwar Thakur, J. - The plaintiffs instituted Civil Suit No. 37/99/94 before the learned Sub Judge, Court No.2, Mandi, District Mandi, H.P. In the afore instituted civil suit, the plaintiffs sought a declaration, for setting aside and quashing of the revenue entries as made in the jamabandis appertaining to the suit land. Furthermore, the plaintiffs also claimed, the, making of a decree for permanent prohibitory injunction, vis-a-vis, the suit khasra numbers, and, against the defendants, for restraining them from interfering with the possession of the plaintiffs over the suit land. The learned Civil Court concerned, made a decision, on 18.05.2002, upon, the afore civil suit. Through, the afore made verdict, the learned Civil Court concerned, dismissed the plaintiffs' suit. The aggrieved plaintiffs, challenged the verdict of dismissal of their suit, as made by the learned trial Court, through, theirs instituting an appeal before the learned First Appellate Court. The learned First Appellate Court, through, a verdict made, on 2.11.2006, upon, Civil Appeal No. 89/2002, 152/2004, dismissed the plaintiffs' appeal, and, consequently, maintained the verdict of dismissal of the plaintiffs' suit, as, pronounced by the learned trial Court concerned. 2. Consequently, the plaintiffs are aggrieved by the afore respective concurrently recorded verdicts of dismissal of the their Civil Suit, and, of their Civil Appeal, respectively by the learned Trial Court concerned, and, by the learned First Appellate Court, and, for annulling the afore concurrently recorded verdicts, they instituted the extant Regular Second Appeal before this Court. 3. When the appeal came up for admission, this Court, on 25th March, 2009, hence, admitted the appeal instituted by the plaintiffs/appellants, against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether right to sue accrues from the date of adverse revenue entry or when the defendants try to assert their right and interfere by making a fresh denial of the plaintiffs rights and not when the defendants have got their names mutated by way of mutation in the revenue record. 2. Whether right to sue accrues from the date of adverse revenue entry or when the defendants try to assert their right and interfere by making a fresh denial of the plaintiffs rights and not when the defendants have got their names mutated by way of mutation in the revenue record. 2. Whether mutations having been declared to be illegal and still continuing as a paper entry can be used for the purposes of conferment of proprietary right and whether subsequent mutation of conferment of right and the consequent jamabandis are also per se illegal and void being based upon such void mutation and do not affect the rights of the actual owner in possession? Substantial question of Law No.1 & 2: 4. Through mutation bearing No. 4, attested on 25.3.1968, the predecessor-in-interest of the defendants one Sh. Narotam, is, averred to, behind the back of plaintiff No.1, and, Sh. Devi Ditta, Tandu, and, Sh. Bihu, ensure the making of a manipulated order of vestment of proprietary rights. Therefore, annulment(s) of the afore order of mutation, and, of the consequent therewith drawn revenue entries, hence, occurring in the jamabandis appertaining to the suit land, is/are espoused. 5. Be that as it may, the validity of the attestation of afore order of mutation No.4 as made on 25.3.1968, and, wherethrough, proprietary rights were conferred upon, Narotam, Gawanu and Palas Ram, can be rested, upon, the plaintiffs succeeding, in proving, that the afore order of mutation, did visibly breach, the verdict passed by the learned Additional Subordinate Judge, Mandi, District Mandi, H.P., upon, Civil Suit No. 190 of 1963. The afore alluded judgment is embodied in Ex.PB. The plaintiffs would succeed in establishing, the afore trite factum probandum, upon, theirs respectively sustaining through the relief claimed therein, and, from the memo of parties, drawn in Ex.PB, and, from the relief clause herein besides from the memo of parties drawn in the extant Civil Suit No. 37/99, that there was not only commonality, of the suit khasra numbers carried therein, with the suit khasra numbers in the extant suit, but also theirs firmly establishing, that there is the completest inter se commonality inter se the contesting litigants in the memo of parties, as, drawn in the copy of judgement drawn in Ex.PB, and, the memo of parties drawn in the extant civil suit. 6. 6. Through, apparently, Ex.PB, does reflect that through the afore verdict, mutation No. 38, as made on 24.9.1962, was declared null and void, and, also when the suit khasra numbers carried therein, are partly analogus to the suit khasra numbers in the extant suit, and, that hence the order of mutation No.4, as, made on 25.3.1968, would be prima facie amenable for being quashed and annulled. However, the mere factum of part analogity of khasra numbers as reflected in the judgment and decree, as, drawn in Ex.PB, and, wherethrough, Narotam's suit for declaration, that mutation No. 38, attested on 24.9.1962 being pronounced to be validly attested, become dismissed, would not per se tantamount to the contested order mutation No.4 drawn in the year 1968, breaching and flouting Ex.PB. The reason, is that, a bare reading of the memo of parties appertaining to the defendants, and, as, carried in Ex.PB, does not demonstrate, that there is any completest apparent analogity inter se the defendants drawn in the memo of parties drawn therein, with the arrayed litigants in the memo of parties, as, drawn in the extant civil suit. Consequently, the afore lack of imperative analogities, does not give any ground to the plaintiffs, to contend, that the order of mutation carrying serial No.4, hence attested on 25.3.1968, breaching the mandate carried in Ex.PB, nor they can hence contend that the afore order of mutation being declared to be null and void, and, nor also can contend that the consequent therewith entries carried in the jamabandis appertaining to the suit land, being declared to be null, and, void. 7. The imperative sequitur of the afore drawn conclusion, is that the making of the order of mutation No.4, and, attested on 25.3.1968, does carry immense probative vigour, and, that also the consequent therewith entries, as, carried in the jamabandi(s), appertaining to the suit land, also likewise carrying the fullest vigour and tenacity. 8. Be that as it may, since it is averred, and, also prima facie proven, that the contentious order of mutation, bearing mutation No.4, attested on 25.3.1968, was drawn behind the back of the plaintiffs, and, may be hence, it breached the solemn principle of audi alterm partem, and, maybe hence it acquires the vice of it being void ab intio, rather rendering it to be challengable at any time. However, the challenge as made to the afore contentious order, of mutation, though is a highly belated challenge, and, it is obviously beyond prescribed period of limitation under Limitation Act. 9. Dehors the above, even though, the plaintiffs' suit is outside the period of limitation. However, the rigour of the period of limitation as prescribed, for the relevant purpose, under the Limitation Act, may not become attracted against the plaintiffs nor their suit would be barred by the vice(s) of limitation, (i) yet only upon the plaintiffs proving that they had not in contemporaneity to the making of the contentious order of mutation, acquired any knowledge about its making and recording, (ii) and, that they had acquired knowledge about its making, only upon commencement of cause(s) of action, as, sparked from untenable interferences being made by the defendants over their settled possession upon the suit land. Significantly, only upon emergences of the afore, the plaintiffs could stop the rigour of the bar of limitation, hence, prima facie engulfing their suit, and they may challenge it, at any stage, on core of it being void ab initio, for its breaching the principle of audi alterm partem. 10. However, a reading of the cross-examination of the plaintiffs' statement, discloses that he had admitted that the Halqua Patwari, at the time of his holding harvest inspections or his preparing girdawaris, with respect to the suit land/suit khasra numbers, his recording his presence before him. In sequel, it appears, that the plaintiffs, since the making of the contentious order of mutation, were aware of its making, and, also were aware of the possession of the defendants over the suit land, and, as becomes, in consonance with the apposite girdawaris rather reflected in the jamabandis appertaining thereto. Consequently, despite the afore knowledge/awareness of the plaintiffs with respect to the afore trite factum probandum, they have chosen to institute the apposite civil suit, rather much beyond/outside, the statutorily prescribed period of limitation. Therefore, the afore exception against the plaintiffs' suit otherwise being hit by the bar of limitation, is not, available to be depended upon by the plaintiffs. In sequitur, it is held that the plaintiffs' suit is grossly hit by the bar of limitation, and, that the plaintiffs' suit is dismissable, as, was aptly done by both the learned courts below. 11. In sequitur, it is held that the plaintiffs' suit is grossly hit by the bar of limitation, and, that the plaintiffs' suit is dismissable, as, was aptly done by both the learned courts below. 11. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, are based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court, as well as the learned trial Court, have not excluded germane and apposite material from consideration. Substantial questions of law No.1 and 2, are answered in favour of the respondents, and, against the appellants. 12. In view of the above discussion, there is no merit in the extant appeal, and, it is dismissed. In sequel, the judgements and decrees, rendered by both the learned Courts below, are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.