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Judgment
Kuldip Singh, Judge
This appeal is directed against judgment, decree dated 24.5.2001 passed by learned District Judge, Kullu in Civil Appeal No. 88/2000 affirming judgment, decree dated 26.6.2000 passed by learned Sub Judge 1st Class, Manali, District Kullu in Civil Suit No. 73/99. Some of the parties have died during the pendency of the litigation and their legal representatives have been brought on record. The parties in the judgment are referred as ''plaintiff'' and ''defendants''. The facts in brief are that Nupi plaintiff filed a suit for declaration that order dated 24.6.1999 passed by the Collector (Settlement) in case No. 5/99 deleting the name of the plaintiff and inserting the names of defendants No. 1 to 6 in the column of cultivation in respect of the land comprised in Khasra No. 1521, Phati Soel, Kothi Barshai, Tehsil Manali as per jamabandi for the year 1990-91 (for short ''suit land'') is wrong, illegal. The case of the plaintiff is that the suit land is exclusively owned and possessed by her. She has raised an apple orchard over the suit land for the last 25-26 years. The order dated 24.6.1999 is wrong, illegal, void and not binding on the plaintiff.
It is the case of the plaintiff that she is an illiterate and simpleton woman, defendant No.1 in connivance with defendants No. 2 to 9 and revenue officials obtained her thumb impressions on some papers by misrepresenting her that those papers were required for demarcation of land belonging to Devta. The thumb impression so obtained on papers were used to show that she had made some statements. The plaintiff came to know this fact on 11.8.1999 when she procured the copy of order dated 24.6.1999. The plaintiff never admitted the exchange of the suit land with 1/3rd share of land comprised in Khasra Nos. 1546/1343 and 1547/1343 nor she admitted that she is out of possession of the suit land. The statements attributed to her are totally wrong and is the result of fabrication. The plaintiff or her predecessor-in-interest never exchanged any land with the defendants. There was no occasion for the revenue officials to pass the impugned order.
On the basis of order dated 24.6.1999, the defendants in the first week of August tried to dispossess the plaintiff from the suit land. In these circumstances, the suit was filed for declaration that the suit land is owned and possessed by the plaintiff irrespective of order dated 24.6.1999 with consequential relief of permanent prohibitory injunction.
The suit was contested by the defendants No. 1 to 4, and defendants No. 5 to 8. The defendants No. 1 to 4, in their written statement took preliminary objections of limitation, estoppel, valuation and maintainability. On merits, they denied that the plaintiff is owner in possession of the suit land. They projected the case that defendants No. 1 to 3 and one Oatu predecessor-in-interest of defendants No. 4 to 6 had exchanged 12 biswas land out of land comprised in Khasra Nos. 1546/1343 and 1547/1343 belonging to them with the suit land owned by Budh Ram father of the plaintiff in January, 1959. After the oral exchange the possession of the suit land was transferred in their favour and since then they are coming in possession of the suit land.
It has been pleaded that they have planted an apple orchard and now the plants are 30 years old. They have pleaded that they are illiterate and could not give effect to exchange in the revenue record and therefore, the names of the parties remained unchanged in the revenue record. After the death of Budh Ram the suit land was wrongly mutated in favour of the plaintiff. The defendant No.1 moved an application for correction of revenue entries when the discrepancy came to his notice. On the basis of inquiry, the revenue record has been rectified. The plaintiff admitted the factum of exchange before the Revenue Officer. The order dated 24.6.1999 is legal, valid and binding on the plaintiff. In alternative, the defendants No. 1 to 4 took the plea that they have become owners of the suit land by way of adverse possession since January, 1959.
The defendants No. 5 to 8 admitted the case of the plaintiff but they denied that they connived with other defendants in moving the application. The defendants No. 5 to 8 have also assailed the order dated 24.06.1999. They have pleaded that they have also become owners of the land comprised in Khasra Nos. 1546/1343 and 1547/1343 alongwith defendants No. 1 to 4. The defendant No.9 has not filed any written statement.
The plaintiff filed replication to the written statement of defendants No. 1 to 4 and re-asserted her claim. On the pleadings of the parties, the following issues were framed:-
Whether the plaintiff is owner in possession of the suit land as alleged? OPP
Whether the order dated 24.6.99 passed by Collector Settlement is liable to be set-aside as alleged? OPP
If issue No.1 is proved in affirmative, whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? OPP
Whether the plaintiff is estopped by her act and conduct from filing the instant suit OPD-1 to 4.
Whether the suit in present form is not maintainable as alleged? OPD-1 to 4.
Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, if so, what is the correct valuation? OPD-1 to 4.
6A. Whether the defendant Nos. 1 to 4 have become owner in possession of the suit land by way of adverse possession as alleged? OPD-1 to 4.
Relief.
The issues No. 2 and 3 were answered in affirmative, issue No.1 partly in affirmative and issues No. 4 to 6-A in negative and the suit was partly decreed on 26.6.2000. The plaintiff was declared as co-owner but in possession of the suit land. The defendants were restrained from interfering in her possession over the suit land. The defendants No. 1 to 3 namely Kunj Lal, Surat Ram and Het Ram filed appeal against judgment dated 26.6.2000 which was dismissed by the learned District Judge, Kullu on 24.5.2001, hence second appeal by defendants No. 1 to 3 which has been admitted on the following substantial questions of law:
Whether the findings of the Courts below are vitiated by misreading and misconstruction of oral and documentary evidence particularly, statement, DW-3 Ravinder Sharma, DW-1/A admission of Nupi, plaintiff and Ex.DW-1(sic Ex.D-1) order of Settlement Collector?
Whether in the absence of plea of fraud and particulars thereof in the pleadings, the order Ex.DW-1 (sic Ex.D-1) could be challenged in the Civil Court and the Civil Court had jurisdiction to set aside the same?
Whether the presumptions attached to the proceedings of the Settlement Collector and valid exchange between Anant Ram and Budhi Ram was rebutted entitling the plaintiff to declaration and injunction?
Whether the findings that there was no valid exchange the plaintiff was in possession of land is sustainable when it was proved that the defendants had planted an orchard and were in possession thereof?
Heard and perused the record. The learned counsel for the appellants/defendants has submitted that the Courts below have misread, misconstrued the statement of DW-3 Ravinder Sharma, Ex.DW-1/A statement dated 19.3.1999 of Nupi and Ex.D-1 order dated 24.6.1999 of the Collector (Settlement). The order dated 24.6.1999 in absence of fraud could not be challenged in the Civil Court. There is presumption to the proceedings before the Settlement Collector. The exchange has been proved. The defendants have proved their possession on the suit land. The two Courts below have erred in decreeing the suit. The learned counsel for the plaintiff has supported the impugned judgment, decree. He has submitted that the two Courts below have recorded concurrent findings. There is no misreading, misconstruction of oral and documentary evidence. The submission has been made for dismissal of the appeal.
The substantial question of law No. 2 is taken up first for determination. It is the case of the defendants that an application for correction of entries was filed by defendant No.1 before the Revenue Officer who accepted the version that the land was exchanged. There is no allegation of fraud. The Revenue Officer had jurisdiction to correct the revenue entries. The Civil court has no jurisdiction over the order dated 24.6.1999 Ex.D-1 passed by the competent Revenue Officer. The Section 46 of the H.P. Land Revenue Act, 1954 provides that if any person considers himself aggrieved as to any right of which he is in possession by an entry in a record of rights or in a periodical record, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1963.
The plaintiff has filed the suit for declaration that she is owner in possession of the suit land and entries based upon the order dated 24.6.1999 are wrong, illegal, void and not binding on her. The plaintiff has filed the suit in order to clear her title. The revenue entries are not documents of title. The plaintiff has asserted her title over the suit land and has challenged the entry in the revenue record incorporated on the basis of order dated 24.6.1999. It has not been shown how the Civil Court has no jurisdiction to decide the dispute between the parties. The defendants No. 1 to 4 in their written statement have not taken objection that Civil Court has no jurisdiction. There is no issue of jurisdiction of Civil Court. In these circumstances, the substantial question of law No. 2 is decided against the defendants.
The substantial questions of law No. 1, 3 and 4 can be conveniently considered collectively, therefore, these three substantial questions of law are taken up for determination. There is no dispute that at one point of time Budh Ram, father of Nupi plaintiff was the owner of the suit land. The stand of the defendants is that they are owner in possession of the land comprised in Khasra No. 1521 measuring 12 biswas. In January, 1959 Budh Ram, defendants No. 1 to 3 and their deceased brother Oatu orally exchanged the land comprised in Khasra No. 1521 measuring 12 biswas with Budh Ram in lieu of land measuring 12 biswas comprised in Khasra Nos. 1546/1343 and 1547/1343. In other words, the defendants No. 1 to 3 along with their deceased brother Oatu claimed ownership and possession of Khasra No. 1521 on the basis of exchange.
There is nothing on record to show that exchange which allegedly took place in January, 1959 was acted upon and implemented. It is surprising that no report of alleged exchange was made to the Patwari or any other Revenue Officer by defendants No. 1 to 3 and Oatu nor there is an explanation why the mutation of exchange was not got entered and attested by defendants No. 1 to 3 and Oatu. The defendant No.1 all of a sudden woke up from slumber after about 40 years and moved an application for correction of revenue entry on the basis of alleged exchange.
The learned counsel for the defendants vehemently contended that entire case of the defendants of exchange has been virtually admitted by plaintiff in her statement Ex.DW-1/A coupled with other evidence such as statement of DW-3 Ravinder Sharma. On the contrary, it is the case of the plaintiff that she is illiterate, rustic village woman, she was duped by defendants and revenue staff, her thumb marks were taken on some papers under the garb of demarcation and lateron those were used to show that she had admitted exchange of Khasra No. 1521. The plaintiff has denied the exchange of suit land by her father, possession of the defendants on the suit land. She has also denied that she ever made a statement before any Revenue Officer that suit land was given by her father in exchange.
PW-1 Nupi Devi has stated that defendants have no right over the suit land. She is illiterate, Kunj Lal had given an application before Tehsildar (Settlement). Three persons from Settlement Office visited her house in absence of her husband and son. They told her that demarcation was to be conducted and obtained her thumb marks on some papers. On 19.3.1999 her statement was not recorded by the settlement people. She had never given the suit land in exchange to defendants nor any land was taken in exchange in lieu of the suit land nor her father gave the suit land in exchange.
DW-1 Niri Gupta, Record Keeper has placed on record copy of statement Ex.DW-1/A from file No. 5/99. In cross-examination, she has stated that as per record on 19.3.1999 statements of Kunj Lal and Nupi were recorded. As per file, no notice of 19.3.1999 was given to Nupi Devi. There is nothing in the file that on which date the statement of Nupi Devi was recorded. DW-2 Kunj Lal has stated that his father exchanged the land with Budh Ram about 40 years ago. In cross-examination, he has stated that exchange took place between the father of Nupi Devi and Anant Ram. He did not exchange any land. Anant Ram was the father of Kunj Lal.
DW-3 Ravinder Sharma, Naib Tehsildar (Settlement) has stated that the statement of Nupi Devi Ex.DW-1/A was recorded by him on 19.3.1999. In cross-examination, he has stated that statement of Nupi Devi was recorded at Karja in Patwarkhana. He has stated that Ex.DW-1/A was readover to Nupi and thereafter she put her thumb mark. DW-4 Baldev Singh, Kanungo (Settlement) has stated that he recorded the statements of Nupi and Kunj Lal on 16.3.1999. The file was with him. The file was returned by him on 16.5.1999.In his presence Tehsildar DW-3 had recorded the statements of the parties in his office.
Ex.DW-1/A is the copy of statement of Nupi in file No. 5/99 decided on 24.6.1999. In Ex.DW-1/A, it has been stated that Nupi in exchange has given Khasra No. 1521 measuring 12 biswas to Kunj Lal and Het Ram in exchange of 12 biswas out of Khasra Nos. 1546/1343 and 1547/1343 Kita 2 total measuring 1-6 bighas. In Ex.DW-1/B Kunj Lal has stated that he has given Khasra Nos. 1546/1343 and 1547/1343, Kita 2 total measuring 1-6 bighas to Budh Ram in lieu of Khasra No. 1521 measuring 12 biswas.
The evidence of exchange produced by defendants is very weak, incoherent, contradictory and not worth-believing. Nupi plaintiff has denied exchange. DW-2 Kunj Lal has stated that exchange took place in between Budh Ram father of plaintiff and Anant Ram father of defendants No. 1 to 3. Kunj Lal defendant No.1 has stated that he did not exchange any land. In the written statement, defendants No. 1 to 4 have taken the stand that defendants No. 1 to 3 and one Oatu predecessor-in-interest of defendants No.4 to 6 had exchanged 12 biswas of land with Budh Ram in January, 1959. But in his statement defendant No.1 Kunj Lal has stated that the land was exchanged by Anant Ram, father of defendants No. 1 to 3. The defendants have not examined any independent witness in whose presence the exchange took place of the suit land with Budh Ram.
Ex.DW-1/A dated 19.3.1999 statement has been relied by defendants to show the admission of Nupi of exchange. DW-3 Ravinder Sharma has stated that the statement of Nupi was recorded by him at Karja in Patwarkhana. DW-4 Baldev Singh has stated that statements of the parties were recorded by DW-3 in his presence in the office. There is thus serious contradiction regarding the place of recording of statement Ex.DW-1/A. This contradiction gets significance when Nupi has denied that she ever gave statement Ex.DW-1/A. She has stated that her thumb marks were obtained by revenue staff on the pretext of demarcation but lateron those thumb marks have been used to show that she has admitted the exchange.
The perusal of Ex.DW-1/A indicates that Nupi has nowhere stated that Khasra No. 1521 measuring 12 biswas was exchanged by her father with Anant Ram. In Ex.DW-1/A it has been stated that Khasra No. 1521 was given in exchange by Nupi to Kunj Lal and Het Ram which is not the case of the defendants. In Ex.DW-1/B Kunj Lal has stated that he had given Khasra Nos. 1546/1343 and 1547/1343 Kita 2 total measuring 1-6 bighas to Budh Ram in lieu of Khasra No. 1521 measuring 12 biswas. The pleaded case of the defendants is that they had given 12 biswas from Khasra Nos. 1546/1343 and 1547/1343 to Budh Ram in lieu of Khasra No. 1521 measuring 12 biswas. The statement Ex.DW-1/B of Kunj Lal is also not in consonance with the stand of the defendants as projected in the written statement for exchange.
Thus, seen from any angle, the exchange of land as claimed by the defendants has not been proved. The order dated 24.6.1999 Ex.D-1 is not sustainable. The two Courts below have rightly appreciated the material on record including oral and documentary evidence. There is no perversity in the impugned judgment, decree. There is no merit in the appeal. The substantial questions of law No. 1, 3 and 4 are decided against the defendants. In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs.