CIVIL APPEAL 76 of 1993 on 6 November 2000

1. Whether the findings of the Court below that the Plaintiff had only 1/3[rd] share in the property and that he was not a exclusive tenant of 24 kanals of land is based on misconstruction of oral and documentary evidence, particularly jamabandis Plaintiff had only 1/3[rd] share in the property and that he was not a exclusive tenant of 24 kanals of land is based on misconstruction of oral and documentary evidence, particularly jamabandis Exts. P2, P4, P5, P6 and P9 and witnesses PW1, PW2, PW3 and DW1.

2. Whether in view of the fact that the plaintiff was in exclusive possession of the suit land was entitled to protection of his possession by decree for injunction notwithstanding the fact that plaintiff was treated to be a tenant on the suit land.

4. The present is a case of concurrent findings and as per settled law, the High Court in the exercise of its appellate jurisdiction under Section 100 of the Code of Civil Procedure normally should not interfere with such findings recorded by the courts below after appreciating the given facts and circumstances and also the evidence available on record. In second appeal, the High Court may quash or set aside the decree passed by the lower appellate court if suffers from any illegality and infirmity or is the result of misconstruction and misappreciation of the given facts and circumstances as well as evidence available on record and on that account perverse.

5. In the case in hand, both legal questions on which this appeal has been admitted, pertain to perversity of the impugned judgment and decree on account of misconstruction and misappreciation of the oral as well as documentary evidence available on record. Therefore, in order to set the controversy at rest and decide the legal

questions so raised in this appeal, reappraisal and re-appreciation of the given facts and circumstances of the case and the evidence available on record is required.

6. The plaint discloses that the plaintiff claims himself to be in possession of the suit land entered in khata No.27, Khatauni No.60, Khasra Nos. 1, 2, 3, 9, 338, 342, 343, 349, 351, 353, 356, 359, 389/1 kitas 14, measuring 26 kanals 1 marla as per jamabandi for the year 1982-83, situated in tika Awa Uperla, Tappa Pahlu, Tehsil Barsar, District Hamirpur to the exclusion of the defendants. The defendants, however, not only controverted the claim so set out in the plaint, but also pleaded that the suit land is in their joint possession in the capacity of tenants. The proceedings, the plaintiff initiated under Section 30(2) of the Consolidation of Holdings Act claiming himself to be in exclusive possession of the suit land has since been dismissed and the mutation sanctioned in his favour and also that of the defendants.

7. Admittedly, the owners of the suit land were defendants No.5 to 9. The documentary evidence in the form of jamabandis Exs.P-1,P-2, P-3, P-4 and P-5 for the years 1910-11/1914-15, 1922-23, 1954-55, 1962-63, 1967-68 and 1982-83 respectively gives us an idea qua the person in possession of the suit land in the capacity of tenants. It is decipherable from these entries that one Shri Asa was in possession of the suit land to the extent of 1/3[rd]share. He was succeeded by his widow, Smt. Kuhlo Devi and on his death she possessed the suit land to the extent of 1/3[rd] share. Plaintiff, Inder Dass is the successor of said Smt. Kuhlo Devi. Therefore, he is entitled to the suit land only to the extent of 1/3[rd] share and not over and above 1/3[rd] share. The Jamabandi Ex.D-4 for the year 1989-90 also reveals that plaintiff, Inder Dass is in possession of the suit land to the extent of 1/3[rd] share. In Ex.D-5 Parcha Register maintained during the consolidation proceedings reveals that the share of the plaintiff in the suit land is to the extent of 1/3[rd] share and it is for this reason the appeal he preferred under Section 30(1) of the Consolidation of Holdings Act was dismissed.

8. True it is that he has been shown in cultivating possession of the entire suit land, however, since he has been recorded as tenant only to the extent of 1/3[rd] share and the remaining land is in the names of defendants, merely on account of he being in cultivating possession of the entire suit land, cannot claim himself to be in exclusive possession thereof for the reason that as per legal principles, the possession of a co-sharer in the joint land is on behalf of each and every co-sharer.

9. Plaintiff while in the witness box as PW-1 has himself admitted that initially Shri Asa was in possession of the suit land and on his death, his wife Smt. Kuhlo Devi occupied the same. It is Kuhlo, who had given the land in question to him for cultivation. The evidence in the form of revenue record discussed hereinabove reveals that said Shri Asa and for that matter his widow, Smt. Kuhlo Devi was in possession of the suit land to the extent of 1/3[rd] share in the capacity of non-occupancy tenants. Therefore, when as per own admission of the plaintiff he was inducted as tenant over the suit land to the extent of 1/3[rd] share by Smt. Kuhlo Devi, he cannot claim the entire suit land to be in his possession in exclusion of other co-sharers, i.e. the defendants.

10. On the other hand, the defendants themselves admit the possession of Smt. Kuhlo Devi to the extent of 1/3[rd] share in the suit land, which according to them was given by her to the plaintiff for cultivation. Reference in this behalf can be made to the statement of DW-3 Shri Chhote Lal. DW-1, Ram Krishan while in the witness box has categorically stated that the plaintiff and the defendants are having equal shares in the suit land. Therefore, the oral as well as documentary evidence produced by both parties unequivocally reveals that the plaintiff and defendants are in possession of the suit land to the extent of 1/3[rd] share respectively.

11. In view of the above discussion, the plaintiff has miserably failed to prove that he is in possession of the entire suit land to the exclusion of the defendants. Both Courts below have, therefore, not committed any illegality or irregularity while dismissing the suit. There is no misreading or misconstruction of the evidence available on record, as alleged. This Court also finds no infirmity or any perversity in the impugned judgment and decree and the same, as such, deserves to be upheld. Both the questions are answered accordingly.

12. For all the reasons hereinabove, this appeal fails and the same is accordingly dismissed. No order so as to the costs.

December 19, 2013. (sck)

(Dharam Chand Chaudhary), Judge.