Krishan Lal and Another vs Ram Ditta and Others

Sanjay Karol, J.—Appellants have filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 3.8.2001, passed by the learned Additional District Judge, Shimla, in Civil Appeal No. 48A-S/13 of 1995, titled as Krishan Lal and another versus Ram Ditta and others, whereby judgment and decree dated 27.6.1995, passed by the Sub Judge 1st Class, Shimla, in Civil Suit No. 24/1 of 89, titled as Ram Chand and others versus Krishan Lal and others, stands affirmed. Plaintiffs-appellants (hereinafter referred to as the plaintiffs) filed a suit for declaration to the effect that they are owner in possession of Shamlat land measuring 23-10 bighas, Khata Khatauni No. 6/12 to 17, situate in Mauja Rapra, Tehsil and District Shimla. Challenge is also to the sale deed dated 28.2.1989 executed by Smt. Dropti in favour of Smt. Gita Devi. Plaintiffs allegedly purchased the share in the suit land belonging to Smt. Leela Wati, mother of defendants No. 1 and 4 to 6.

Defendants contested the suit on the ground that proprietary rights of Smt. Leela Wati in the Shamlat land were never transferred in favour of the plaintiffs.

Based on the pleadings of the parties, trial Court framed the following issues:

Whether the plaintiffs are owners in possession of suit land on the basis of sale deed and gift deed as alleged? OPP

Whether the sale deed dated 28.2.89 executed by defendant No. 3 in favour of defendant No. 8 is null and void as alleged? OPP

Whether the entries in the revenue record in favour of defendants are wrong and not binding on the plaintiffs? OPP

Whether the plaintiffs are entitled to the relief of permanent injunction as prayed? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the suit is bad for want of impleading of estate right holders as party to this suit? OPD

Whether the plaintiffs are estopped to file this suit due to their own act, conduct and deed? OPD

Whether the suit is time barred? OPD

Whether this court has no jurisdiction to try this suit? OPD

Whether the plaintiff has no cause of action? OPD

Relief.

On the basis of the evidence so led by the parties and material placed on record, trial Court decided issues No. 1 to 4 against the plaintiffs and as such plaintiffs'' suit was dismissed. Findings of fact stand affirmed by the first appellate Court.

Present appeal was admitted on the following substantial question of law:

Whether the transfer of proprietary land/Village land more particularly with the recital of transfer of share in shamlat land as contained in Ex.P-1 and Ex.P-2, carries with it the right to share in the shamlat land?

Having heard learned counsel for the parties as also perused the record, in my considered view, no question, much-less a substantial question of law, arises for determination/consideration in this appeal.

Noticeably, parties have been litigating since the year 1989 and all litigations must come to an end at some stage.

Mr. Satyen Vaidya, learned counsel for the plaintiffs-appellants, has invited my attention to the sale deed (Ex. P-1) as also gift deed (Ex. P-2), allegedly evidencing the fact that Smt. Leela Wati had in fact transferred proprietary rights in the Shamlat land. Having minutely gone through the same, in my considered view, the contention only merits rejection.

No doubt there is a recital in the deeds about transfer of 11-4 bighas of land in favour of the plaintiffs, but significantly there is no reference of transferring proprietary rights alongwith the share in the Shamlat land. Careful perusal of these documents would only reveal that only rights over the land, i.e. Shamlat have been transferred.

Lower appellate Court has correctly referred to and relied upon the decision in Chaman Lal versus Amolak Singh, 1980 P.L.J. 26, in the given facts. Documents (Ex. P-1 & P-2) do not exhibit positive intention on the part of the seller to convey to the purchaser all rights and interests in Shamlat land. It is not that the Shamlat land is appurtenant to the proprietary land.

The Courts below have correctly appreciated the revenue entries, i.e. jamabandi (Ex. P-5). As such, no fault can be found with the judgments rendered by the Courts below.

Apex Court in State of Himachal Pradesh Vs. Tarsem Singh and Others, held as under: 7. In the aforesaid two cases, Entry 21 of List II of the Seventh Schedule of the Government of India Act and Entry 18 of List II of the Seventh Schedule of the Constitution of India were relied upon for the purpose of holding that there was a legislative competence while enacting the Land Acts. The question whether vesting of all interests and rights in the land free from all encumbrances would also include easementary right, was not the subject-matter of decisions and, therefore, the said decisions have no application in the present case. Section 3 of the Act provides that, notwithstanding any custom, usage, instrument, agreement or decree of the court, all titles, interests and rights in the land shall stand extinguished and all such rights, title and interests shall vest in the State free from all encumbrances. Learned counsel, when argued that easementary right being over the land has not vested in the State, omitted to consider the significance of the expression "free from encumbrances". The word "encumbrance" means a burden or charge upon property or a claim or lien upon an estate or on the land. "Encumber" means burden of legal liability on property, and, therefore, when there is encumbrances on a land, it constitutes a burden on the title which diminishes the value of the land. In Abdul Karim khan v. Managing Committee, George High School it was held that encumbrance would include easementary right of drainage over the land. In Rashid Allidina v. Jiwandas Khemji it was laid down that the word "encumbrance" has always been understood to include easementary right. In Ganga Vishnu Swaika v. Machine Mfg. Co. Ltd. it was ruled that an easementary right to discharge water on other''s land comes within the meaning of encumbrance on the right in the land.

As such, it cannot be held that findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. Substantial question of law is answered accordingly. For all the aforesaid reasons, the appeal is dismissed and disposed of, so also the pending application(s), if any.