Himachal Pradesh High Court
RSA/401/2009 of BALWANT KUMAR Vs KAILASH BEHAL on 29 December 2009
HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 401 of 2009 Date of Decision:29thDecember, 2009 Shri Balwant Kumar and others Appellants Versus Shri Kailash Behl and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants:
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 401 of 2009
Date of Decision:29[th]December, 2009
Shri Balwant Kumar and others Appellants Versus Shri Kailash Behl and another Respondents
Coram
The Hon’ble Mr. Justice Sanjay Karol,J.
Whether approved for reporting[1]? No. For the appellants: Mr.Satyen Vaidya, Advocate. For the respondents: Mr. Lalit Sharma, Advocate.
Sanjay Karol, J.(Oral)
In this Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908, plaintiffs-appellants have assailed the judgment and decree dated 4.3.2009 passed by the Presiding Officer, Fast Track Court, Mandi, in Civil Appeal No.18/2003, affirming the judgment and decree dated 30.9.2002 passed by learned Sub Judge, Ist Class, Court No.2, Mandi, in Civil Suit No.191/2000/93.
The Courts below have concurrently held the defendants- respondents herein to be in settled possession of the suit land. The plaintiffs have further failed to Whether the reporters of Local Papers are allowed to see the Judgment?
prove their title over the suit land, hence, their prayer for possession, mandatory and prohibitory injunction stands rejected and the suit dismissed.
According to the plaintiffs, they are owners in possession of suit land comprised in Khewat and Khatauni No.87 min/100 min, Khasra No. 1162/1041, measuring 330 sq. mtrs, situated in Muhal Khaliar/366/2, Mandi Town, District Mandi, H.P. (hereinafter referred to as the suit land). In proof thereof, the plaintiffs rely upon revenue record being the jamabandi pertaining to the year 1987-88 (Ext.PW-1/C) and entry of mutation dated 16.12.1978 (Ext.PW-4/A) and the oral testimony of Shri A.C.Premi (Pw-4) also establishes the said fact. The defendants are stated to have constructed a latrine on part of the suit land comprised in Khasra No.1162/1041/1 and after fencing the entire suit land started raising construction thereupon.
The plaintiffs’ action was resisted by the defendants, inter alia, on the ground that they are in settled possession of the suit land since the time of their predecessor-in-interest, Smt. Dolma and have perfected their title by way of adverse possession.
Based on the pleadings of the parties, the trial Court framed the following issues:-
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1. Whether the plaintiff is owner in possession of the suit land, as alleged? possession of the suit land, as alleged?
OPP. 2. Whether the defendants are interfering in the possession of the plaintiff? OPP. in the possession of the plaintiff? OPP. 3.If issues No.1 and 2 are proved in affirmative, whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed? OPP affirmative, whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed? OPP 4.Whether the suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPD and mis-joinder of necessary parties, as alleged? OPD
5. Whether the suit is barred by limitation? OPD OPD
6. Whether the suit is not properly valued for the purpose of court fee, if so, what is the correct valuation? OPD for the purpose of court fee, if so, what is the correct valuation? OPD 7.Whether the defendants have become owners of the suit land by way of adverse possession, as alleged? OPD. owners of the suit land by way of adverse possession, as alleged? OPD.
Appreciating the material on record, the trial Court found that except for Ext.PW-1/C and Ext.PW-4/A, there was nothing on record to establish the plaintiffs’ title or possession over the suit land. The testimony of official witness Shri A.C.Premi (PW-4) was also of no advantage as he admitted not having delivered possession pursuant to the alleged exchange of land of Shri Chandermani, predecessor-in-interest of the plaintiffs with that of the State. To the contrary, the trial Court found that from the order dated 5.8.2007 (Ext.DW-1/B) passed by the Estate
Officer, District Mandi, in the proceedings initiated against Smt. Dolma under the provisions of Public Premises (Eviction of unauthorized Occupant) Act, 1958 as also copy of judgment (Ext.DW-1/D) dated 25.5.1968 passed by the District Judge, Mandi, setting aside the said orders, Smt. Dolma was in possession of the suit land since the year 1964. The defendants, being successor-in-interest of Smt. Dolma are continuing to be in possession by virtue of her Will executed in their favour.
The defendants plea of having protected their title by way of adverse possession was held to be redundant for the reason that the State being the recorded owner prior to the preparation of Ext.PW-1/C and Ext.PW-1/D was not party to the suit.
The issues No.1,2,3 and 4 were decided in negative. Issues No.5,6 and 8 were decided in affirmative and issue No.7 was held to be redundant. Consequently, plaintiffs’ suit being Civil Suit No. 191/2000/93 was dismissed by the trial Court in terms of judgment and decree dated 30.9.2002.
In the plaintiffs’ appeal, lower Appellate Court framed the following points for determination:-
1. Whether the appellants/plaintiffs are owners of the suit land and are entitled for the relief of permanent prohibitory injunction and possession of the suit land and findings of of the suit land and are entitled for the relief of permanent prohibitory injunction and possession of the suit land and findings of the learned Trial Court are liable to be set aside on the basis of material on record?
2. Whether the suit of the appellants/plaintiffs is not barred by limitation and the findings of the Ld. Trial Court on the basis of material on file are liable to be set aside? is not barred by limitation and the findings of the Ld. Trial Court on the basis of material on file are liable to be set aside? 3.Whether the appellants/plaintiffs have properly valued the suit for the purpose of court fee and findings of the learned trial Court on the basis of material on the file are liable to be set aside? properly valued the suit for the purpose of court fee and findings of the learned trial Court on the basis of material on the file are liable to be set aside?
4. Whether the appellants/plaintiffs have cause of action to file the suit against the respondents/defendants and the findings of the learned trial Court on the basis of material on the file are liable to be set aside? of action to file the suit against the respondents/defendants and the findings of the learned trial Court on the basis of material on the file are liable to be set aside?
Appreciating the material in totality the appeal was dismissed by holding Points No.1 to 4 in the negative.
It has been argued by Mr. Vaidya, learned counsel for the plaintiffs that the Courts below have failed to take into account and correctly appreciate the contents of the documents Ext.PW-1/C and Ext.PW-4/A, which conclusively prove the plaintiffs’ title and possession over the suit land. I am afraid it is not so. The Courts below in extensio have considered and correctly appreciated the oral as well as documentary evidence placed on record by the parties. Evidently except for the said two documents no other document has been placed on record to prove the
plaintiffs’ title over the suit land. The land originally belonged to the State and is alleged to have been exchanged with Shri Chandermani, predecessor-in-interest of the plaintiffs. There is nothing on record to even prima facie show Shri Chandermani’s title of some other land. The order of exchange has to be passed by the authority constituted under law. Admittedly no such order is placed on record. The plaintiffs could not prove being put in possession pursuant to the alleged order of exchange. PW-4 has admitted that he has not handed over the possession of the suit land to Shri Chandermani. To the contrary the defendants through various documents being Ext.DW-1/B and Ext.DW-1/D have been able to prove their continuous and uninterrupted possession on the suit land.
The Apex Court in Guru Amarjit Singh vs. Rattan Chand and others, AIR 1994 SC 227, has held that entries in jamabandi are not proof of title. They are only the statements for revenue purpose and it is for the parties to establish the relationship of title to their property since there is no unequivocal admission.
Hence, no substantial question of law arises for consideration in the present appeal and the same is accordingly dismissed in limine.
29[th] December, 2009 (C)
(Sanjay Karol) Judge.