Kamla and Others vs Geeta Devi and Others

Rajiv Sharma, J.

CMP(M) No. 917/2012

Heard. Legal heirs of respondent No. 5 Kirpo Devi are permitted to be brought on record as per details given in para-2 of the application. Registry is directed to make necessary corrections in the memo of parties in red ink. Application is disposed of.

CMP No. 645/2003

This application has been preferred under Order 41 Rule 27 CPC for production of additional evidence. Applicants have relied upon copy of Rojnamcha report made by Chowkidar and entry made in Bahi as well as Jantri to prove that Sauno died on 10.3.1964. Applicants can not be permitted to fill up lacunae in their evidence at this belated stage. In case they knew about these facts they should have pleaded the same at the time of filing of the suit. The defendants have proved to the hilt that deceased has died after proprietary rights were conferred upon him. Applicants ought to have given some explanation why these documents have not been proved earlier. Accordingly, no ground is made out for leading additional evidence. Application is dismissed.

RSA No. 335/2002

This Regular Second Appeal has been instituted against judgment and decree dated 27.6.2002 rendered by learned District Judge, Bilaspur, District Bilaspur, Himachal Pradesh in Civil Appeal No. 51 of 1992.

"Key facts" necessary for the adjudication of the present appeal are that appellants/plaintiffs (hereinafter referred to as ''plaintiffs'' for convenience sake) filed a suit for declaration that they were owners-in-possession of the land comprised in Khewat No. 27, Khatauni No. 35, Khasra Numbers 41 and 65 measuring 16-17 bighas situate in village Nain Gujran, Pargana Sariun, Tehsil Ghumarwin, District Bilaspur. They also sought relief of permanent injunction against respondents-defendants from causing any kind of interference over the suit land. It is alleged that plaintiff No. 1 Sh. Dhano Ram being sole owner of suit land, transferred 1/6th share in favour of the plaintiffs No. 2 to 5 namely Hardayal Singh, Mantha Ram, Beli Ram alias Baldev and Balbir Singh by way of a registered gift deed dated 12.1.1984 and delivered possession in their favour. Plaintiffs'' father Shri Sauno was sole non-occupancy tenant on Khasra No. 65 measuring 12-18 Bighas and land comprised in Khasra No. 41 measuring 3-19 Bigha. He applied for acquisition of proprietary rights and accordingly moved an application before the Compensation Officer. During the pendency of the two applications, Shri Sauno, father of the plaintiffs died and therefore, plaintiff No. 1 Dhano Ram moved an application for substituting his father as legal representative. Compensation Officer vide his order declared plaintiff No. 1 to be owner of the land comprised in Khasra No. 65 measuring 12-18 Bighas and Khasra No. 41 measuring 3-19 Bighas. Thereafter mutation Nos. 79 and 72 were attested wrongly in favour of Sauno Ram, in the absence of plaintiffs qua the land comprised in Khasra No. 65 and 41. Plaintiff also filed a suit for declaration against the defendants, which was withdrawn on 22.12.1986.

Suit was contested by the defendant Nos. 1 and 2. According to them, Sauno Ram was father of plaintiffs and defendants No. 1 and 2. They succeeded to the estate of Sauno Ram in equal shares. It is denied that Sauno Ram died during the pendency of the application before Compensation Officer after acquisition of proprietary rights. It is alleged that Sauno Ram expired after a long time after he acquired proprietary rights. Mutation Nos. 79 and 72 as a consequence of order of the Compensation Officer dated 7.6.1986 were asserted to be correct and legal.

Plaintiffs filed replication. Issues were framed by the learned Senior Sub Judge on 17.9.1991. He dismissed the suit on 22.5.1992. The defendants preferred an appeal before the District Judge, Bilaspur, who dismissed the same on 27.6.2002. Hence, this appeal.

The present Regular Second Appeal was admitted on 26.7.2002, on the following substantial questions of law:

"1. Whether the findings of the learned trial Court and first Appellate Court are against the settled position of law under Order 23 Rule 3 and Section 11 of the Code of Civil Procedure?

Whether the orders of the Land Reforms Officer dated 7.9.66 (Ex. PA and PB) were without jurisdiction having been passed in spite of death of Sahnu. If so, its effect?

Whether the findings of the learned trial Court, as affirmed by the Appellate Court, are perverse, being based on misreading and misappreciation of oral and documentary evidence?"

Mr. K.D. Sood, learned Senior Advocate, on the basis of substantial questions of law, has vehemently argued that the Orders passed by Land Reforms Officer, Ex. PA and Ex. PB were without jurisdiction. He then contended that both the Courts below have not correctly appreciated the oral as well as documentary evidence and also the fact that they are against settled position of law under Section 11 of the Code of Civil Procedure.

Mr. Karan Singh Kanwar and Mr. Parkash Sharma, Advocates have supported the judgments and decrees passed by both the Courts below.

Plaintiff No. 1 Dhano Ram has not appeared in the witness box.

Hardayal Singh, plaintiff No. 2 has appeared as PW-1. According to him, suit land was owned and possessed by the plaintiffs, and that the defendants have no concern with the suit land. Father of plaintiff No. 1 Dhano Ram was a non-occupancy tenant over the suit land. He died, as such, Shri Dhano Ram, plaintiff No. 1 became non-occupancy tenant after the death of Sauno. He acquired proprietary rights over the suit land by operation of law. Plaintiff Dhano executed a gift deed of 1/6th share in favour of plaintiffs No. 2 to 5. Mutation was attested after Dhano acquired proprietary rights over the suit land. In his cross-examination, he has admitted that for the last 40 years, Dhano-plaintiff No. 1 was not mentally fit. However, according to him, in the year 1983-84, he was mentally alert at the time when he executed gift deed in favour of plaintiffs No. 2 to 5.

PW-3 Sunder Singh proved Ext. P1 and P-2, orders of the Compensation Officer. In his cross-examination, he has admitted that in the application moved for substitution of plaintiff No. 1 in place of Sauno, no affidavit was filed. LR-8 form, Ext. PA and PB certifies that Sauno was conferred proprietary rights qua the suit land. Though, according to him, these documents Ex. PA and PB were the result of mistake committed by Ahlmad.

Krishnoo Ram appeared as DW-1. He has specifically deposed that Sauno died on 30.9.1966 after the decision of the application by the Compensation Officer vide which proprietary rights were conferred upon Shri Sauno. Dhano used to appear in the Court of Compensation Officer for Sauno. Suit land was jointly owned by plaintiffs and defendants.

DW-2 Krishanoo Ram son of Shri Nathu Ram deposed that Shri Sauno died in Paush 1966. He has brought on record, the copy of the plaint in the suit titled Dhano versus Pohlo instituted on 27.12.1983 and copy of Order dated 12.12.1986 Ext. DA, whereby plaintiff Dhano Ram has withdrawn the suit with liberty to file suit on same cause of action, subject to payment of Rs. 100/-. It thus proves that Sauno died after he acquired proprietary rights and not before acquiring proprietary rights.

Ext. PA and Ext. PB, can not be said to be without jurisdiction whereby Patta was issued in favour of Shri Sauno Ram. The plaintiff Dhano has earlier filed a civil suit No. 226/1 of 1983 for declaration and permanent injunction against the original defendant No. 1 Pohlo claiming that he and his sister Parvatu, original defendant No. 2 were co-owners-in-possession of the suit land and defendant No. 1 has wrongly been recorded as owner-in-possession in the revenue record. Civil Suit was permitted to be withdrawn with liberty reserved to file fresh suit on same cause of action vide Order dated 12.12.1986 subject to payment of Rs. 100/-. However, in the present suit, the plaintiff is claiming himself to be sole owner of the suit land. Earlier cause of action was shown to have accrued to the plaintiff on 8.3.1982 and now on 31.3.1987. Thus, suit has not been filed on same cause of action on which earlier suit was filed, which was permitted to be withdrawn on 22.12.1986.

Learned Courts below have correctly appreciated the oral as well as documentary evidence.

In view of the discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stand disposed of. No costs.