Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 699 (HP)

Daulat Ram (Since Deceased) Through His Legal Heirs v. Onkar Singh (Since Deceased) Through His Legal Heirs

2021-09-10

SURESHWAR THAKUR

body2021
JUDGMENT : 1. The plaintiff instituted a Civil Suit bearing No. 523 of 1995 before the learned Civil Judge (Junior Division), Court No.II, Una, District Una, H.P. In the afore Civil suit, the plaintiff, claimed the hereinafter extracted decree against the defendants, and, vis-a-vis, the suit land:- “It is therefore prayed that a decree for permanent injunction restraining the defendants from interfering in any manner, changing the nature and character, usurping possession and cutting and removing the trees and ousting the plaintiff from land measuring 0-04-60 comprised in Khewat No.22 min, KhatauniNo.90 min, bearing Khasra Nos. 1208 (0-03-04), 1209 (0-01-56) as entered in Missal Hakiat Bandobast Jadid Sani for the year 1991-92 situated in Village Bharolian Khurd, Tehsil and District Una, and in the alternative a decree for possession of the suit land in case the defendants succeed in usurping possession forcibly during the pendency of the suit be passed with costs in favour of the plaintiff and against the defendants.” 2. The learned trial Court through its verdict made thereon on 23.2.2006 rather decreed the afore espoused relief(s). 3. The aggrieved defendants constituted there against a Civil Appeal bearing No. 34 of 2006 before the learned First Appellate Court, and, the learned First Appellate Court through its verdict made on 24.12.2008, upon, the afore civil appeal, allowed the appeal, and, set aside the verdict of the learned trial Court. 4. The plaintiff being aggrieved, from the afore verdict of the learned First Appellate Court, is led to constitute there against, the extant appeal before this Court. 5. When the appeal came up for hearing before this Court, it became admitted, on 04.03.2009, on the hereinafter extracted substantial questions of law:- 1. What is the legal sanctity of the separate khasra numbers prepared during the settlement proceedings when the plaintiff is found in actual physical cultivatory possession of min No.? 2. What is the legal effect when min khasra number of big chunk of land is converted into different specific khasra number having the possession of individual-plaintiff?. Substantial questions of Law No.1 and 2. 6. The validity of the afore made verdict by the learned First Appellate Court is to be gauged, from the Missal Hakiat Bandobast Jadid Sani, borne in Ex. Substantial questions of Law No.1 and 2. 6. The validity of the afore made verdict by the learned First Appellate Court is to be gauged, from the Missal Hakiat Bandobast Jadid Sani, borne in Ex. D-3, drawn with respect to the suit land, and, appertaining to the year 1991-92, wherein, vis-avis, extant khasra No.1208 and 1209, rather theretos the prior old khasra No.741 and 761 became ascribed. In the column of possession thereof, the name of the plaintiff is shown to be in cultivatory possession, hence, as Hissedar Kabij. 7. An immense solemnity is to be assigned, to the afore made entries, reflecting one Daulat Ram, the plaintiff as Hissedar Kabij, under the landowners mentioned, in the column of ownership, in the Missal Hakat Bandobast Jadid Sani, borne in Ex. D-3, and, as drawn for the year 1991-92. However, in the Missal Hakiat for the year 1978-79, borne in Ex. D-1, and, as appertaining to the suit land, vis-a-vis old Khasra Nos. 741 and 761, and to which after conclusion of conclusive settlement proceedings, new khasra number(s), 1208 and 1209, became ascribed, though, the name of Daulat Ram is shown to be in possession of the suit land. However, in the column of remarks, the entry is of “Bina Lagan Kabja Kastkar”. The signification of the afore entries, is that the afore Daulat Ram, was holding only permissive possession of the suit land, under the land owners, without his liquidating rent in cash or in kind to the landowners concerned. Since, the liquidation of rent in cash or in kind by the afore Daulat Ram, to the landowners concerned was both, an indispensable and, an imperative sine qua none, for his being construed to be a valid gair maurusi, vis-a-vis, the suit kahsra numbers, for his thereafter hence automatic statutory vestment, of title in him, occurring over the suit land, rather upon, coming into operation of H.P. Tenancy and Land Reform Act. Therefore, the simplicitor entry of Bina Lagan, does not make him a gair maurusi, upon the suit kahsra number nor he became entitled to claim, through operation of law, vestment of title over the suit land nor he could claim that he has become the absolute owner of the suit kahsra numbers. Contrarily, the afore entry is to be construable, to be his holding only permissive possession over the suit khasra numbers. 8. Contrarily, the afore entry is to be construable, to be his holding only permissive possession over the suit khasra numbers. 8. Though, the learned counsel appearing for the appellant has contended with much vigour, before this Court, though old khasra numbers 741 and 761, after conclusion of settlement proceedings, in the year 1991-92, became assigned new khasra numbers 1208 and 1209, yet when in the missal hakiat appertaining to the suit land, and, relating to the year 1991-92, and, as borne in Ex. D-3, while its making reference thereins, of old khasra numbers 741 and 761, they became underlined as min numbers. Therefore, he contends that the carving there froms new khasra numbers 1208 and 1209 becomes per se invalid, as without dismemberment, of the joint khasra numbers, no min numbers can become ascribed, to the old khasra numbers 741 and 761. Conspicuously, when there froms, new khasra numbers 1208 and 1209 became carved by the settlement staff. However, the afore made argument is completely amiss, as, a persual of the pre-settlement jmabandi appertaining to the suit land, and, as become embodied in Ex. D- 1, rather reveals that the old khasra numbers supra, inasmuch, as, khasra numbers 741 and 761 no min numbers became assigned. Moreover, when there is parity inter se the dimensions of the pre settlement khasra numbers 741 and 761 and with their area as mentioned, in the missal hakiat, as, drawn with respect to the suit khasra numbers, appertaining to the year 1991-92. Therefore, the assigning in missal hakiat D-3, if min numbers to the afore khasra numbers, becomes wholly insignificant. It appears that the afore assigning of min numbers to old khasra numbers does not tantamount, to any invalid segregation there from of new khasra numbers 1208 and 1209. 9. In addition, Ex. P-13, exhibit whereof, is a binding and conclusive order made by the Assistant Collector 1st Grade, Una, rather discloses in its operative part, that one Onkar Singh, Nirankar Singh becoming replaced as Hissedar Kaiz, by Daulat Ram, as Hissedar Kabiz, and also is only amplificatory of Daulat Ram as shown in Ex. 9. In addition, Ex. P-13, exhibit whereof, is a binding and conclusive order made by the Assistant Collector 1st Grade, Una, rather discloses in its operative part, that one Onkar Singh, Nirankar Singh becoming replaced as Hissedar Kaiz, by Daulat Ram, as Hissedar Kabiz, and also is only amplificatory of Daulat Ram as shown in Ex. D-3 to be hence holding only permissive possession, of the suit land along with others, inasmuch as with one Onkar Singh and Nirankar Singh, latter whereof became rather ordered to be deleted from the column of possession, as co-Hissedars, in possession, whereas Daulat Ram became ordered to be recorded in the column of possession, as Hissedar in possession. However, the afore conclusive order comprised in Ex.P-13 does not ipso facto, either negate(s) nor nullifies, nor annuls the rights only of valid land owners, vis-a-vis, the suit khasra numbers. Since, conclusivity is assigned to Ex.P-13, wherein the plaintiff's exclusive permissive possession, as Hissedar Kabij, is ordered to be recorded over the suit land. However, since, the defendants are not recorded in the apposite jamabandi, as, lawful owners of the suit land, rather when the name of one Onkar Singh, the predecessor-in-interest of the defendants, through Ex.P-13, is ordered to be deleted, as such, in the jamabandi concerned. Therefore, the defendants cannot make any interference over the evident lawful possession of the plaintiff over the suit land. Consequently, all the substantial questions of law are answered in favour of the appellants/plaintiff, and, against the respondents/defendants. 11. In view of the above discussion, there is merit in the extant appeal, and, it is allowed. In sequel, the judgment and decree rendered by the learned First Appellate Court is set aside, whereas, the judgement and decree rendered by the learned trial Court is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.