Desh Raj And Another vs Munshi Ram And Others

Rakesh Kainthla, J

The present appeal is directed against the judgment & decree dated 4.8.2008, passed by the learned District Judge, Kangra, at Dharamshala, H.P., vide which the appeal filed by respondents no. 1 to 9 (plaintiffs before the learned Trial Court) was allowed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking a declaration that they are owners-in-possession of the suit land described in the head note of the plaint to the extent of 29/108 shares and defendant no.1 is owner to the extent of 34/108 share. An entry in the revenue record showing the plaintiffs to be the owners to the extent of 19/108 shares and the defendant no. 1 to be the owner to the extent of 44/108 shares is wrong, illegal, null and void and the consolidation of the holdings based on the wrong shares is wrong, null and void and not binding upon the rights of the plaintiffs. A consequential relief of permanent prohibitory injunction restraining the defendants from dispossessing the plaintiffs from the suit land and interfering with the possession of the plaintiffs was also sought. It was pleaded that Chuhnu, predecessor-in-interest of the plaintiffs, purchased land to the extent of 1/24th share, measuring 2 kanals 18 marlas from Jamita. Mutation No. 153 was sanctioned on 11.6.1967. He also purchased 1/24th share of Mukto measuring 2 kanals 19 marlas and Mutation No. 198, dated 11.6.1967 was attested to this effect. He became the owner of 5 kanals 17 marlas of land to the extent of 1/12th shares. 1/24th share was under the mortgagee, which was redeemed by the predecessor-in-interest of the plaintiffs and Mutation No. 205 was attested to this effect. He was shown owner to the extent of 1/12th share and he became owner to the extent of 29/108 shares measuring 18 kanals 17 marlas after the attestation of Mutation No. 214. Defendant No.1 was the owner to the extent of 34/108 shares. The predecessor in interest of the plaintiffs was shown as the owner of 114/648 shares and defendant no. 1 was shown owner to the extent of 264/648 shares. These shares were reflected wrongly and the predecessor-in-interest of the plaintiffs should have been shown the owner to the extent of 29/108 shares and defendant no.1 should have been shown the owner to the extent of 22 kanals 2 marlas. The shares were wrongly reflected during the settlement. The consolidation occurred in the area and the Misal Hakiyat was prepared; however, the shares were wrongly reflected. The plaintiffs requested the defendants to admit their share but they declined. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by defendants no. 1 to 4, 5, 9, 12 and 13 by filing a written statement, taking preliminary objections regarding lack of maintainability, defendant no.1 having become the owner by way of adverse possession and the plaintiffs being estopped by their acts and conducts from filing the present suit. The contents of the plaint were denied on merits. It was asserted that defendant no.1 is in possession of 44/108 shares and he has become the owner of the land alleged to be in excess of his share. Nanku was found in possession of 44 shares out of 108 shares and Chunnu (predecessor-in-interest of the plaintiffs) was found in possession of 19/108 shares. The plaintiffs wrongly asserted that their predecessor-in-interest was coming into possession of 18 Kanals 17 Marlas from the date of the purchase. The consolidation operation has been completed. The consolidation authorities found defendant no.1 to be in possession of 1-07-41 hectares and prepared the record as per the possession. The suit was filed without any basis. Hence, it was prayed that the same be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

The learned Trial Court framed the following issues on 10.9.1996 and additional issue No.1A on 25.8.2005:-

Whether the plaintiffs are the owners in possession of the suit land, as alleged? OPP.

1A. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction against the defendants, as claimed? OPP.

Whether the suit is not maintainable in preliminary objection No.1 OPD.

Whether the defendant No.1 has been coming in possession of 44 shares out of 108 shares of the suit land for more than 12 years and has become owner by way of adverse possession even in respect of alleged excess of his share? OPD.

Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD.

Relief.

The parties were called upon to produce the evidence and the plaintiffs examined plaintiff no.4-Prakash Chand (PW- 1). LR No.1(a) of the defendant, Des Raj, examined himself (DW- 1).

The learned Trial Court held that the grievance of the plaintiffs arose out of the revenue record prepared during the consolidation. The jurisdiction of the Civil Court is barred regarding any matter arising out of consolidation proceedings. Hence, the plaint was ordered to be returned to the plaintiffs.

Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiffs filed an appeal, which was decided by the learned Additional District Judge-I, Kangra at Dharamshala on 12.8.2004. Learned Additional District Judge-I, Kangra at Dharamshala held that the learned Trial Court erred in holding that the jurisdiction of the Civil Court was barred. The dispute between the parties related to the jamabandi prepared during the years 1972-73 when no consolidation operation was going on. The Civil Court had jurisdiction to hear and entertain the suit. Hence, the appeal was allowed and the matter was remanded to the learned Trial Court for a fresh decision.

Learned Trial Court held that the cause of action arose to the plaintiffs in the year 1972-73. No suit was filed within three years. The present appeal was filed after 22 years and it was barred by limitation. The suit suffered from delay and laches. No representation was filed against the wrong entries. The plaintiffs had failed to prove that they were owners to the extent of 29/108 shares and defendant no. 1 was wrongly recorded as the owner of 44/108 shares. The plea of adverse possession was not proved. The plaintiffs were estopped from filing the present suit. Hence, issue no.1 was answered in the affirmative, issues No. 1(a) to 4 were answered in the negative and the suit was dismissed.

Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiffs filed an appeal which was decided by learned Additional District Judge, Kangra at Dharamshala on 4.8.2008. Learned First Appellate Court held that the version of the plaintiffs was duly corroborated by the revenue record, mutation and the entries in the column of remarks. Learned Trial Court had not properly appreciated the revenue record. The suit was not barred by limitation, as the wrong entries do not furnish any cause of action for filing the suit. Therefore, the appeal was allowed by the learned First Appellate Court.

Being aggrieved from the judgment and decree passed by the learned First Appellate Court, the defendants filed the present appeal asserting that the learned First Appellate Court did not properly appreciate the material placed before it. The plaintiffs had sufficient opportunity during the settlement operation to agitate the wrong record but they failed to do so. This question could not be agitated before the Civil Court after the conclusion of the consolidation proceedings. Plaintiffs are not in joint possession of any portion of the land as the land was partitioned during the consolidation. Hence, it was prayed that the present appeal be allowed and the judgment and decree passed by the learned First Appellate Court be set-aside.

The appeal was admitted on the following substantial questions of law on 24.11.2008:-

Whether a mere suit for declaration and consequential relief of permanent injunction lies without asking for a decree of joint possession when the plaintiffs are not recorded as joint owners with the defendants nor are they in possession of any part of the suit land?

Whether the decree by the appellate Court below is a nullity in view of the averments made in para 6(v) of the grounds of appeal?

I have heard Mr. Ashok Chaudhary, learned Counsel for the appellants/defendants and Mr. Vivek Singh Thakur, learned Counsel for respondents no. 1 to 5/plaintiffs.

Mr. Ashok Chaudhary, learned Counsel for the appellants/defendants submitted that the learned First Appellate Court erred in holding that the suit was not barred by limitation. The plaintiffs had challenged the entries during the consolidation operation and the learned Trial Court had rightly held that the matter arose out of the consolidation operation. Even on merits, the plaintiffs had not produced the sale deeds and no relief could have been granted based on the revenue record. Therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the learned First Appellate Court be set-aside.

Mr. Vivek Singh Thakur, learned Counsel for respondents no. 1 to 5/plaintiffs supported the judgment and decree passed by the learned First Appellate Court and submitted that no interference is required with the same.

I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

Substantial Question of Law No.1:

The plaintiffs filed a civil suit seeking the relief of declaration that they are owners to the extent of 29/108 shares, defendant no.1 is the owner to the extent of 34/108 shares. Revenue entries showing the plaintiffs to be the owners to the extent of 19/108 shares and defendant No.1 to be the owners to the extent of 44/108 shares and the consolidation holding based on wrong entries are incorrect. The reference was made to the copy of Jamabandi for the year 1993-94 and the Misal Hakiyat for the year 1982-83 in para-1 of the plaint. Copy of Misal Hakiyat of consolidation (Ex.P-1) shows Mehlo alias Mahal Chand, defendant no.2 to be the exclusive owner of Khasra Nos. 468, 469, 470 and 455 (old), 484, 485, 486 and 538 (new). Copy of Misal Hakiyat Consolidation for the year 1993-94 (Ex.P-2) shows defendant no. 3 Vakil Singh, defendant no. 4 Baldev Singh, defendant no. 5 Chando Ram, defendant no. 6 Madan Lal, defendant no. 7 Joginder Singh, defendant no. 8 Avtar Singh, defendant no. 9 Krishan Singh and defendant no. 10 Kailasho Devi as co-owners of Khasra No. 467 min, 472, 463 (old), 483 534 and 542 (new). Copy of Misal Hakiyat Consolidation for the year 1993-94 (Ex.P-3) shows Nanku (defendant No.1) to be the exclusive owner-in-possession of Khasra Nos. 474, 473, 471 and 464 (old), 532, 535, 536 and 537 (new). Misal Hakiyat Consolidation for the year 1993-94 (Ex.P-4) shows plaintiff no.1 Munshi Lal as the exclusive owner in possession of Khasra No. 455 min (old), 540 (new), Misal Hakiyat Consolidation for the year 1993-94 (Ex.P-5) shows plaintiff no.2-Ram Dayal as exclusive owner in possession of Khasra Nos. 455 min (old), 472 and 539 (new). Misal Hakiyat Consolidation for the year 1993-94 (Ex.P-6) shows plaintiff no.3-Ami Chand as exclusive owner-in -possession of Khasra No. 435 min (old), 479 (new). Misal Hakiyat Consolidation for the year 1993-94 (Ex.P-7) shows plaintiff no.5-Bir Singh as exclusive owner-in-possession of Khasra No. 455 (old), 477 (new). Misal Hakiyat Consolidation for the year 1993-94 (Ex.P-8) shows plaintiff no.6-Ram Chand as the exclusive owner-in-possession of Khasra Nos. 454 and 455 (old), 476 and 478 (new). Misal Hakiyat Consolidation for the year 1993-94 (Ex.P-9) shows plaintiff no.7-Hari Krishan as exclusive owner-in-possession of Khasra No. 455 (old), 474 (new). Copy of Misal Hakiyat Consolidation for the year 1993-94 (Ex.P-10) shows plaintiff no.8-Darshna and plaintiff no.9-Kesru Devi as joint owners-in-possession of Khasra No. 455 (old), 480 (new). Copy of Misal Hakiyat Consolidation for the year 1993-94 (Ex.P-11) shows defendant No. 11-Karam Singh, defendant No. 12-Pritam Singh, defendant No. 13-Uttam Singh as joint owners-in-possession of Khasra No. 465 and 467 (old), 481 and 482 (new).

Therefore, it is apparent that the parties are not shown to be joint owners in possession of the land mentioned above. Hence, no relief could have been granted to the plaintiffs that they were joint owners in possession of the suit land. The entries in the copy of Jamabandis carry with them a presumption of correctness and since the plaintiffs were not recorded to be in possession of the whole of the land, therefore, they could not have sought the relief of declaration without seeking the relief of joint possession.

It was laid down by the Hon’ble Supreme Court in Ram Saran v. Ganga Devi, (1973) 2 SCC 60 that a civil suit for seeking declaration without praying for possession is not maintainable when the plaintiff is out of possession. It was held at page 60: -

“2. The fact-finding courts, namely the trial court as well as the appellate courts have come to the conclusion that during the lifetime of Chhabili, she was in possession of a portion of the suit properties and the other portion remained in possession of the plaintiffs. The further finding reached by those courts is that after the death of ChhabiliKuer, Ganga Devi took unlawful possession of the properties which were in possession of ChhabiliKuer. They also found that Ganga Devi was not the heir of Chhabili but on the other hand, the plaintiffs were her heirs.

We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding courts, Gange Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation.”

A similar view was taken in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362: 2012 SCC OnLine SC 528, wherein it was observed at page 173:-

“55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.

In Ram Saran v. Ganga Devi [(1973) 2 SCC 60: AIR 1972 SC 2685] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 (hereinafter called “the Specific Relief Act”) and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC 129: AIR 1993 SC 957] this Court dealt with a similar issue where the plaintiff was not in exclusive possession of the property and had filed a suit seeking a declaration of title of ownership. A similar view has been reiterated observing that the suit was not maintainable if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [(2011) 4 SCC 567 : (2011) 2 SCC (Civ) 366] .)

In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.

In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same.”

In the present case, the plaintiffs were not recorded to be owners in possession of the whole of the suit land and no declaration could have been granted in their favour without consequential relief of possession

Learned First Appellate Court relied upon the Misal Hakiyat for the year 1982-83 and Jamabandi prepared earlier, however, it ignored the Jamabandis prepared during the consolidation. The plaintiff-Prakash Chand admitted in his cross-examination that the consolidation operation was completed and Misal Hakiyat of 1993-94 had been prepared. He also admitted that as per the situation on the spot, the possession of the plaintiffs was over 19 shares whereas the possession of the defendant no.1 was over 44 shares. Defendant no. 1 Nanku has been possession since 1972. These admissions corroborate the entries that plaintiffs are not in possession of 29 shares. The learned First Appellate Court did not notice these admissions and wrongly held the plaintiffs to be in possession of 29 shares.

Therefore, the learned First Appellate Court erred in decreeing the suit for declaration and injunction and this substantial question of law is answered accordingly.

Substantial Question of Law No. 2:

The plaintiffs claimed that they are recorded owners in possession of 19/108 shares whereas they are owners to the extent of 29/108 shares. They also claimed that Nanku, defendant no. 1 is the owner of a 34/108 share whereas he was wrongly recorded as the owner of a 44/108 share. The plaintiffs had not sought any relief against other defendants. They did not claim that the share of other defendants was wrongly recorded. Learned First Appellate Court passed a decree not only against defendant no.1 but against other defendants as well. When it was not the case of the plaintiffs that the other defendants were wrongly recorded owners to the extent of the share reflected against their names during the consolidation and they were interfering with the ownership and possession of the plaintiffs, the suit could not have been decreed against the other defendants. Learned First Appellate Court erred in decreeing the suit against all the defendants. Hence, this substantial question of law is answered accordingly.

Final order:

In view of the above, the present appeal is allowed and the judgment and decree passed by the learned First Appellate Court are ordered to be set-aside while those of the learned Trial Court are restored.

The Pending miscellaneous application(s), if any, also stand(s) disposed of.