Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 476 (HP)

Prem Singh v. Joginder Singh & Ors.

2021-07-29

SURESHWAR THAKUR

body2021
JUDGMENT Sureshwar Thakur, J. - The plaintiffs instituted civil suit bearing No. 227- 1 of 1999, before the Sub-Judge, 1st Class, Theog, District Shimla, H.P. In the afore civil suit, the plaintiffs claimed, the, making a decree of permanent prohibitory injunction, against the defendants, and, qua the suit khasra Nos, comprised in khata/khatoni No. 54/82, khasra Nos 927/94, 99, 586, 704, 707 and 708, kitas 6, measuring 50-9 bighas. The learned trial Judge, through his decision made on 28.7.2003, upon the afore civil suit, granted the espoused decree to the plaintiffs. The defendant, one Prem Singh, became aggrieved from the judgment and decree, made by the learned trial Judge, upon, the afore civil suit, and hence preferred an appeal thereagainst, before the learned District Judge, Shimla. The afore Civil Appeal, bearing No. 48-S/13 of 2006/04, became decided on 3.5.2007. Through the afore made verdict, the learned first Appellate Court, dismissed the defendants' appeal, and, obviously upheld the judgment and decree (supra), as became pronounced by the learned trial Judge, upon Civil Suit No. 227-1 of 1999. 2. The defendant, one Prem Singh became aggrieved from the afore made concurrent judgment(s) and decree(s), as became respectively, pronounced by the learned trial Judge concerned, and, by the learned First Appellate Court concerned. Consequently, he instituted the instant Regular Second Appeal, bearing No. 353 of 2007, before this Court, and, therethrough, he strived for annulment(s) of the judgment(s) and decree(s), as became concurrently rendered against him, by both the learned Courts below. When the appeal, came up for admission before this Court, on 21.7.2008, this Court admitted, the instant appeal, on the hereinafter extracted substantial question of law: Whether Decree for 50 Bigha 9 Biswas could be granted in view of the fact that the plaintiffs claimed one third share, in land measuring 50 bighas and 9 biswas, of which they earned ownership, they being the tenants granted ownership? 3. Since the extant Regular Second Appeal, has been admitted on the afore formulated substantial question of law. Therefore, this Court would not delve into the entire gamut of the lis, rather this Court confines itself, only in meteing an answer, to the afore formulated substantial question of law. 4. 3. Since the extant Regular Second Appeal, has been admitted on the afore formulated substantial question of law. Therefore, this Court would not delve into the entire gamut of the lis, rather this Court confines itself, only in meteing an answer, to the afore formulated substantial question of law. 4. Be that as it may, it is yet imperative to bear in mind, the factum that the dimensions of the suit khasra Nos, respectively bearing khasra Nos 927/94, 99, 586, 704, 707 and 708, kitas 6, is 50-9 bighas. The defendants, in their written statement, as became instituted to the plaint, contested the validity of the attestation of mutation, on 31.3.1998, and, where through proprietary rights became conferred, upon, the plaintiffs, vis- -vis, the entire area, of the suit khasra Nos, rather measuring 50-9 bighas. Moreover, they also contested the validity of the revenue entries, as became prepared in consonance with the afore made order of mutation. However, as aforestated, this Court would refrain to delve into the legality of the afore, as this Court confines itself only to meteing an answer, to the substantial question of law (supra), whereon, the instant Regular Second Appeal became admitted by this Court. 5. Therefore, for meting an apt answer to the substantial question of law (supra), and dehors this Court being precluded to delve into the validity or legality of the order of mutation, made on 31.3.1998, and, wherethrough proprietary rights became conferred upon the plaintiffs, vis- -vis, the entire dimension/area(s) of the suit khasra Nos, inasmuch as vis- -vis, an area measuring 50-9 bighas, (i) thereupon the import of the displays, made in Ext. PA, is also required to be analyzed. Ext. PA is the Jamabandi, appertaining to the suit khasra Nos. Though, entries carried in the Jamabandi concerned, carry a presumption of truth, and, also though the afore presumption of truth, is rebuttable. However, since the plaintiffs, did not, contest the validity of the entries occurring in Ext. PA, Exhibit whereof is the Jamabandi, appertaining to suit khasra No., thereupon all the depictions, carried therein, do acquire an aura of conclusivity. Being so, the import of the entire reflections, carried in all the columns of Ext. PA, are required to be analyzed. In the plaint, the plaintiffs claimed, that they were tenants, under one Sundharu and Nanda, hence on a payment of Rs. 40/-, as Lagan. Being so, the import of the entire reflections, carried in all the columns of Ext. PA, are required to be analyzed. In the plaint, the plaintiffs claimed, that they were tenants, under one Sundharu and Nanda, hence on a payment of Rs. 40/-, as Lagan. They also averred that their induction as tenants, upon the suit khasra Nos, by the aforestated land owners, was, with the consent of other co-sharers, in the undivided holdings. They further averred that the share of the afore land owners in the undivided khasra Nos (supra), hence carrying an area of 50-9 bighas, rather was limited only upto the extent of 1/3rd share. The effect of the afore made averments, when became read alongwith the entries in the column of ownership, displayed in Ext. PA, is that it did, obviously leverage in the plaintiffs', a claim for conferment of apposite proprietary rights, upon them, through the mandate, borne in Section 104 of the H.P. Tenancy Land Reforms Act, rather only to the extent of shares, as held by the afore land owners, in the then un-divided suit khasa Nos. Necessarily the afore made pleadings constitute admissions of the plaintiffs, and, rather are to be revered. They also hence estop the plaintiffs from rearing any claim to the then un-divided suit khasra Nos, hence beyond the shares of the afore land owners. 6. As a corollary, it did not bestow any leverage or any indefeasible right in the plaintiffs, to stake any claim for conferment of proprietary rights, upon them, hence, encompassing therein also, all the right(s), title(s) and interest(s), of other land owners, other than, under whom hence the plaintiffs aver that they were "gair marusi". Therefore, conferment of proprietary rights, upon the plaintiffs, rather encompassing thereins, also the shares of land owners, other than Smt. Sundhru and Nanda, is, perse legally fallible. 7. Even otherwise, even if, assuming that other land owners, than Sundhru and Nanda, did also induct, the plaintiff(s) as "gair Marusi", even upon their shares, in the then undivided suit property, thereupon, it was imperative for the plaintiff to array them as co-defenants, in the civil suit. 7. Even otherwise, even if, assuming that other land owners, than Sundhru and Nanda, did also induct, the plaintiff(s) as "gair Marusi", even upon their shares, in the then undivided suit property, thereupon, it was imperative for the plaintiff to array them as co-defenants, in the civil suit. The arraying of other land owners, in the civil suit, as co-defendants, may have facilitated them to rebut the averments, if any, carried in the plaint, that the induction of the plaintiffs, as "gair Marusi", upon the suit property, was with their consent, and may have also facilitated them to contest, the making of the order of mutation, of 31.3.1998, and, also the consequent therewith entries, occurring in the Jamabandi concerned, wherein(s), even, visa-vis, their share in the then undivided suit khasra Nos., the Revenue Officer concerned, has conferred proprietary rights, upon the plaintiffs. However, the land owners other than Smt. Sundhuru and Nanda, remained un-arrayed in the array of co-defendants, in the civil suit concerned, and consequently, they were barred from either contesting the validity of the order, of, mutation, wherethroughs their shares in the suit khasra Nos, became completely eclipsed, and, also their right(s) in the undivided suit khasra Nos, became completely annulled. Therefore, rather when only upon theirs being permitted to contest the plaintiffs suit, hence breach of the principle of audi alteram partem would have not emanated, whereas for want of the afore being arrayed as co-defendants, in the Civil Suit, rather, the afore solemn principle has been breached. Moreover, the afore made omission, made on the part of the plaintiffs, appears to be both deliberate and intentional. In sequel, the order of mutation made on 31.3.1998, and, the consequent therewith prepared Jamabandi(s), are valid only to the extent of 1/3rd share, therein(s) of Sundhuru and Nanda. However, inclusion(s) and encompassing(s) therein, of, shares of land owners, other than Sundhuru and Nanda, is, amenable for interference. 8. Accordingly, the substantial question of law is answered, in favour of the defendant Prem Singh, and, the appeal is partly allowed. However, inclusion(s) and encompassing(s) therein, of, shares of land owners, other than Sundhuru and Nanda, is, amenable for interference. 8. Accordingly, the substantial question of law is answered, in favour of the defendant Prem Singh, and, the appeal is partly allowed. In sequel the concurrent judgment(s) and decree(s), respectively made by the learned trial Judge concerned, and, later affirmed by the learned District Judge, (Forest), Shimla, through his making verdict upon Civil Appeal No. 48-S/13 of 2006/04, are modified to the extent, that the plaintiffs are declared to be holding valid possessory title, only with respect to the shares of Sadhuru and Nanda, in the suit khasra Nos. Consequentially, also the defendants are restrained from interfering with the possession of the plaintiffs in the suit khasra Nos, in so far as to the extent only it relates to their induction, as "gair marusi", under Sundharu, and, Nanda, and, shall not extend to the shares of other co-owners, other than Sundhuru and Nanda. The decree-sheet be prepared accordingly. Also, the pending application(s),if any, are also disposed of. No costs.