Lachhi Ram and Others vs Krishan Dutt and Others

Dharam Chand Chaudhary, J.

S/Shri Lachhi Ram, his wife Naiku, sons Om Parkash, Tula Ram and Ramesh, defendants No. 3 to 7 in the trial Court, are in second appeal. They are aggrieved by the judgment and decree dated 23rd September, 1999, passed by learned District Judge, Solan, in Civil Appeal No. 24-S/13 of 1998, whereby the judgment and decree passed by learned Sub Judge 1st Class, Kandaghat Camp at Solan in Civil Suit No. 94/1 of 1982, on 19th December, 1997, has been affirmed and the appeal dismissed.

Respondents No. 1 to 55 or their predecessors-in-interest were plaintiffs in the trial Court. They have brought a suit with respect to the suit land comprised in Khata Nos. 1/1 min, 2/2 min, 3/4 min, 4/5 min, 5/6 min, 9/10 min, 13/14 min, 16/18 min, 18/20 min, 19/21 min, 20/22 min, 24/32 min, 26/34 min and 12/13 min, situate at village Deonda, Tehsil Kandaghat, District Solan, as per Jamabandi for the year 1980-81, for the decree of permanent prohibitory injunction restraining the appellants and other defendants, i.e., defendants No. 1 to 18 from causing any interference therein in any manner whatsoever. As per further allegations in the plaint, defendants No. 1 to 18 by forming a group started threatening the plaintiffs to dispossess them from the suit land and occupied the same forcibly. On 7th July, 1982, when the owners (plaintiffs) were repairing "Obra" constructed in the land of Shri Laxman, the said defendants came there and started abusing the owners-plaintiffs and also threatening them to leave the possession thereof. In the evening the police came to the spot. The police officials also started pursuing the plaintiffs to hand over the possession to the defendants. Though the plaintiffs produced revenue record to the police and the Pradhan, Members of Gram Panchayat, Chowkidar and others had clarified the position, but of no avail.

On 10th July, 1982, the defendants again threatened the plaintiffs to dispossess them from the suit land. At their instance two criminal cases were also registered by the police against the plaintiffs falsely. Since the plaintiffs apprehend their dispossession from the suit land by the defendants without any right, title or interest in the suit land, hence the suit for permanent prohibitory injunction.

Defendants No. 1 to 18 on entering appearance have contested the suit. In preliminary, they raised the objections qua maintainability of the suit, mis-joinder of parties, jurisdiction of the civil Court to try and entertain the suit, the same not properly valued for the purpose of court fee and jurisdiction and also being joint suit not maintainable.

On merits, defendant No. 1 has claimed himself to be in possession by operation of the suit land entered in Khata/Khatauni No. 18/20 min, Khasra Nos. 665/619, 688/623, 698/623, measuring 2-9 bighas and Khata/Khatauni No. 20/22 min, Khasra Nos. 664/619, 689/623 and 697/623, measuring 4-13 bighas, for the last 50 years in the capacity of tenant-at-will on payment of Chakauta at the rate of Rs. 12/- per annum, besides "Kaar-Bagar" (labour) to the owners. By operation of law, he allegedly has become owner thereof. The entries to the contrary showing the plaintiffs as owners in possession are stated to be wrong and being agitated before the competent Court with a prayer to make correction thereof. In Khasra Girdawari, it is defendant No. 1 (since dead) has been shown in possession of part of the suit land as aforesaid. It is denied that the defendants assembled in a group and rather it is the plaintiffs who formed a gang comprising their muscular mercenaries on 4th July 1982 and 6th July, 1982 and tried to demolish the structure/shed constructed by defendant No. 1 in order to destroy his possession over the portion of the suit land as tenant. It is on account of wisdom and presence of mind of the defendants, the plaintiffs failed to pull it down, though they were able to pull out its roof before the arrival of the police on the spot. Such criminal action on the part of the plaintiffs has resulted in registration of criminal cases under Section 447/379 and under Sections 448/427 of the Indian Penal Code vide FIR No. 70/82 and 73/82. The defendants, therefore, apprehend their dispossession at the hands of the plaintiffs from the suit land, the moment the restraint order is passed. The suit was thus sought to be dismissed.

On the pleadings of the parties, learned trial Judge has framed the following issues:

Whether the defendant No. 1 is in possession of the land described in para-1 of the written statement as tenant as alleged? OPD-1.

Whether the suit suffers from misjoinder of the parties? If so its effect? OPD.

Whether the court has no jurisdiction to try the suit? OPD.

Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.

Whether the suit is not maintainable as alleged in P.O. No. 2 to 6? OPD.

Relief.

It is seen that onus to prove all the issues was on contesting defendants No. 1 to 18.

The parties when put to trial have produced evidence comprising oral as well as documentary. Learned trial Court while answering issue No. 1 on appreciation of the evidence available on record and hearing the parties on both sides, has concluded as follows:

"14. It emerges from the aforesaid oral as well as documentary evidence that the plaintiffs are owner in possession of the suit land and defendants have no concern whatsoever with the suit land. The evidence as brought by the defendant does not establish that they are in possession of the suit land or that the house in question was constructed by them. No documentary evidence whatsoever has been produced by the defendants substantiating their possession over the suit land. Even co-defendants have not been examined as witness. Except Khasra Girdawari for the year 1980-81 Ext. PC/14 and mutation Ext. PB there is nothing on record which is in favour of the defendants. Rebuttable presumption of truth is attached to the copy of Jamabandi and not to mutation and Khasra Girdawari. No evidence whatsoever has been led to rebut the presumption attached to Jamabandi suggesting the possession of the plaintiffs. Even no evidence has been brought as to whether any Chakauta was being paid or not. It has come in the evidence that Sewak Ram is still alive who was receiving Chakauta, but he too was not examined. There is no evidence on record as to how the defendants came in possession of the suit land. This case has exchequered history as compromise was reached between the parties and parties took oath in Shiva Temple at Kandaghat on 18.4.84 and on taking oath by Rama Nand that defendants were not in possession of the suit land, Lachhi ram also took oath that he would not claim any right over the sit land. In the circumstances issue No. 1 is answered against the defendants and in favour of the plaintiffs."

Issues No. 2 to 5 were also answered against the defendants on the ground that they failed to produce any evidence and make submissions in that regard during the course of arguments. The suit has, therefore, been decreed against the defendants by the trial Court. Learned lower appellate Court in appeal has affirmed the judgment and decree passed by the trial Court and dismissed the appeal.

The legality and validity of the judgment and decree passed by the Courts below have been assailed on several grounds, however, mainly that both Courts below have failed to appreciate that the presumption of truth attached to the revenue record stood duly rebutted by the evidence produced by the defendants. Such record to the contrary is stated to be misread, misconstrued and mis-appreciated and on the other hand, both Courts below have based its findings on inadmissible evidence, particularly mark-A, the alleged statement of Shri Makholia, defendant No. 1. Learned lower appellate Court irrespective of taking note that the said statement was inadmissible in evidence has affirmed the judgment and decree passed by the trial Court. The objections qua multifariousness and causes of action have not been appreciated and to the contrary, it is erroneously concluded that the civil Court has jurisdiction to try and entertain the suit. The defendants having been proved to be in possession of the suit land as tenants, as per entries in the Khasra Girdawari, which part of the case has been erroneously ignored, on the other hand, the plaintiffs/respondents have been erroneously held in possession of the suit property.

The appeal has been admitted on the following substantial questions of law:

Whether mark ''A'' the alleged statement made by Shri Makholia in a criminal proceedings, which was not duly proved on record could be relevant piece of evidence to hold that the entries in Khasra Girdawari in the name of Shri Makholia were incorporated by deceitful means? Are not the findings of both the Courts below vitiated on relying upon inadmissible evidence?

When the defendants have been shown to be occupying different parcels of land, could a single suit for injunction be maintained against all the defendants, was not the suit filed by the plaintiff-respondents bad for multifariousness of causes of action as envisaged under Code of Civil Procedure?

Whether the defendant claim tenancy pertaining to a particular individual, which fact was duly established by oral and documentary evidence, was not the suit beyond the competence of the civil Court when there existed relationship of landlord and tenant? Was not the jurisdiction of the civil Court ousted on account of provisions contained in H.P. Tenancy and Land Reforms Act?

When the possession of the defendants was duly established on the record, could the suit of the plaintiff simplicitor for injunction be decreed by relying upon the revenue entries, which stood duly rebutted? Are not the findings of both the Courts below vitiated on account of misreading the relevant evidence and rejecting the material piece of evidence? Is not the same amount to taking essentially wrong approach in the matter materially effecting the decision?

On hearing learned Court representing the parties on both sides and going through the record, in the considered opinion of this Court, the statement mark ''A'' is not legally admissible in evidence and as such could have not been relied upon. Although, name of deceased defendant Makholia being the person having made the statement is not find mentioned in this document, yet even if the same is believed to be the statement he made during the course of proceedings in the criminal case being not proved and exhibited in accordance with law should have not been relied upon or discussed by both the Courts below nor any benefit thereof could have been extended in favour of the plaintiffs. Otherwise also, the meaning of last line of the examination-in-chief reveals that the maker of this statement had stated that the Girdawari of the land in his name was got scored out by someone mischievously and he never stated that the entries in the Girdawari qua the land in question was got entered by someone mischievously. Both Courts below otherwise have also misread the statement to this extent. Anyhow, the statement mark ''A'' cannot be said to be legal and acceptable evidence, hence cannot be relied upon to the detrimental of the defendants. However, the judgments and decrees passed by both Courts below have not been solely based upon this document. However, there is a passing reference of this document in the judgment and decree under challenge. It would still not be proper to conclude that merely a passing reference of mark ''A'' in the impugned judgment and decree has vitiated the same, hence not legally sustainable.

The second substantial question of law not at all arises because it is no body''s case that the defendants were in possession of different parcels of the suit land. The suit rather is simplicitor for the grant of decree of permanent prohibitory injunction filed on the ground that the plaintiffs are owners in possession of the suit land and the defendants are threatening them to dispossess therefrom forcibly. Otherwise also, the defendants have not at all been proved to be in possession of the suit land in the capacity of tenants. If the written statement is seen, they claim part of the suit land, i.e., Khata/Khatauni No. 18/20 min, bearing Khasra Nos. 665/619, 668/623, 698/623 and Khata/Khatauni No. 20/22 min, Khasra Nos. 664/619, 689/623 and 697/623. Such claim has been based on the basis of entries in the Khasra Girdawari for the year 1980-81.

On going through the entries in the Khasra Girdawari for the year 1980-81 qua the land being Khasra Nos. 665/619, 668/623, 698/623, Khata/Khatauni No. 18/20 min and Khasra Nos. 664/619, 689/623 and 698/623, Khata/Khatauni No. 20/22 min, are not in the names of defendants. In the Jamabandis Exts. PC/9 and PC/11 also, the above land entered in Khata/Khatauni No. 18/20 min and Khata/Khatauni No. 20/22 min has been shown to be in the ownership and possession of the owners and also the mortgagees. The documentary evidence so produced by the plaintiffs belies the case of the defendants. The remaining suit land, as per Khasra Girdawari Ext. PA and also the Jamabandis for the year 1980-81, Exts. PC/1 to PC/8, PC/10 and PC/12 to PC/14 have also been shown in the ownership and possession of the plaintiffs and not in that of the defendants.

Deceased defendant No. 1 Makholia was shown in the plaint being the son of Bahadru, however, when he has stepped into the witness box as DW-1 the name of his father has been recorded as Udiya. As per Ext. PC/15, the Jamabandi for the year 1980-81, Makholia son of Udiya Ram (deceased defendant No. 1) has been shown owner in possession of the entire land entered in Khewat/Khatauni No. 29/37 and out of land entered in Khewat/Khatauni No. 30/38 to the extent of 1/4th share alongwith his brother Mathia and Sibia in equal shares. He, therefore, is owner in possession of this land, however, the same is not subject matter of dispute in the suit. In this document his total share in the land entered in Khewat/Khatauni Nos. 29/37 and 30/38 has been worked out as 15-15 bighas. The land entered in Khewat/Khatauni Nos. 29/37 and 30/38, however, is not the subject matter of dispute, hence Ext. PC/15 leads to the only conclusion that he is owner in possession of the land entered therein to the extent of his share. On the basis of this document plaintiffs'' case that Makholia had some other land nearby the suit land seems to be plausible and nearer to the factual position.

The overwhelming evidence produced by the plaintiffs, therefore, makes it crystal clear that the contesting defendants are not in possession of the suit land and rather the same is in the exclusive ownership and possession of the plaintiffs. True it is that the presumption of truth attached to the entries in the revenue record is rebuttable. The oral evidence as has come on record by way of own statement of deceased defendant No. 1 Makholia (DW-1) and by that of DW-2 Bisha Ram, DW-3 Mathu Ram and DW-4 Bhagat Ram is neither cogent nor reliable so as to rebut the presumption of truth attached to such revenue record produced in evidence by the plaintiffs. Otherwise also, the oral evidence produced by the defendants is contradictory and also unreliable and undependable, as learned lower appellate Court has rightly observed on reappraisal thereof.

On the other hand, the evidence as has come on record by way of the statements of plaintiffs PW-1 Rama Nand, PW-2 Khiali Ram and PW-4 Sewak Ram as well as PW-3 Daya Ram, is cogent and reliable and corroborates the entries in the revenue record showing the plaintiffs as owners in possession of the suit land. Both Courts below have, therefore, neither committed any illegality nor irregularity in placing reliance thereon and decreeing the suit. This answers the substantial questions of law framed at Sr. No. 2 and 4 supra.

Now adverting to substantial question No. 5, the defendants have miserably failed to prove that they were in possession of the suit land in the capacity of tenant. What to speak of establishment of their possession over the suit land, there is no iota of evidence even to believe prima facie that they were inducted as tenants over the suit land on payment of Chakauta. Had the defendants been inducted as tenants on payment of Chakauta, they would have produced in evidence the receipts issued by one of the owners Sewak Ram. In the event of they being tenants-at-will the conferment of proprietary rights upon them was automatic on coming into being the HP Tenancy and Land Reforms Act. No evidence in this regard has also been produced. Mutation Ext. P-13 in the name of defendants pertains to some other land belonging to the Government. Therefore, when the possession of the defendants is not at all established and because they started threatening the plaintiffs to dispossess them forcibly from the suit land, the suit filed by the latter for the decree of permanent prohibitory injunction is maintainable. Courts below, therefore, have not committed any illegality and irregularity while decreeing the suit.

In view of what has been said hereinabove, no question of law muchless substantial question of law arises for adjudication in the present appeal. Both Courts below on appreciation of the evidence oral as well as documentary available on record in its right perspective have rightly decreed the suit. The impugned judgment and decree cannot be said to be perverse or legally and factually unsustainable, rather the same deserves to be affirmed. Consequently, this appeal fails and the same is dismissed. No order as to costs.