Ram Sain & Ors. vs Hari Dass (deceased) through his LRs

Tarlok Singh Chauhan

The defendants are the appellants, who, aggrieved by the decree of reversal passed by the learned first appellate court, have filed the instant appeal.

The parties shall be referred to as the “plaintiffs” and “defendants”.

Briefly stated facts of the case are that Hari Dass, predecessor in interest of the plaintiffs (original plaintiff) filed a suit against the defendants claiming that he was one of the co-owners/co-sharers of the land comprised in Khasara Nos.2815/1265 and 2816/1266 measuring 0-15-37 hect. situated at Mauza Jhakri, Tehsil Rampur Bushahr, District Shimla, H.P., but late Mr. Jagti Ram, father of defendants No. 1 and 2 and husband of defendant No.3, had been shown in possession of the same. According to the plaintiff, the defendants had no right over the suit land, therefore, prayed for decree of possession and perpetual injunction to be passed in his favour.

The defendants resisted and contested the suit by filing written statement wherein various preliminary objections with regard to maintainability, non joinder of necessary parties, locus standi, limitation etc. were raised. It was also contended that as per jamabandi for the year 1976-77 Khasra No.1266, measuring 0-14-42 hectares, was recorded in the ownership of State of H.P. and in possession of H.P.P.W.D. during the settlement operation as the land comprised in Khasra No.1266 (new) was continuing in possession of aforesaid Jagti Ram and the Khatauni was accordingly prepared by the settlement field staff showing the possession of Jagti Ram. During 1950, road was constructed in the Jhakri area, which is now National Highway 22, but the acquisition proceedings were initiated quite late.

It was averred that as per the acquisition, land out of Khasra No.297, which has been denoted as Khasra No.789/297, was mutated in the name of the State of H.P. and shown in possession of H.P.P.W.D. The total land out of Khasra No.297 measuring 3 Bighas 4 Biswas equivalent to 0-24-08 hectares was acquired for construction of the road, but as per the spot position, the land measuring 0-14-42 hectares, about 1 Bigha 17 Biswas, was in possession of Jagti Ram, which fact came to light during the settlement operation.

During the settlement operation, certain illegalities and irregularities came to light, as a result whereof, right holders made representation(s) to the Settlement Officer, District Shimla and Kinnaur, who after inquiry sent the matter for enquiry to the field agency and statements of the right holders were recorded by the Tehsildar and Naib-Tehsildar (Settlement) Rampur and such statements were made the basis of the order dated 28.9.1989 as passed by the Settlement Officer. Names of the predecessor of the plaintiff and late Jagti Ram and for that reason, any of representative of the H.P Government do not figure therein. Furthermore, the then Patwari (Settlement) on 3.8.1990 made a detailed report with regard to the position of the correction to be made in the various Khasra numbers, but the Khasra number, part of which have been mutated in the name of the predecessor of the plaintiffs, and other co- sharers did not figure therein.

Furthermore, the revenue entry qua Khasra No.789/297, which figures in jamabandi for the year 1976-77 which jamabandi had seen light of the day much prior to the settlement operation of the area.

It was alleged that there appears to be a big fraud having been committed by the settlement field staff, when the matter was sent for enquiry by the Settlement Officer on the representation made by the Zumla Zamindaran Jhakri in connivance with the predecessor of the plaintiffs and one Man Dass prepared wrong entries. Therefore the entries effected by the order of the Settlement Officer District Shimla and Kinnaur dated 28.9.1989 were ab-initio, illegal and inoperative and, therefore, figuring names of the original plaintiff and other co-sharers in the jamabandi for the year 2000- 2001 showing them as owners of the land comprised in Khasra No.2815/1265 and 2816/1266 are wrong and the plaintiff thus gets no title in the suit land.

In addition to above, it was alleged that it is the State of H.P., which is the owner of suit land and, thus, in the alternative, the defendants also set up the case that in case the order passed by the Settlement Collector is found to be legal, in that eventuality the possession of late Jagti Ram and after his death, that of the defendants being open, continuous, peaceful and hostile to the knowledge of the plaintiff and his co-sharers from 22.11.1990 has ripened into adverse possession. It was further denied that the defendants were raising construction over any part of the suit land and took a specific plea that they were raising construction over Khasra No. 2994/1265, which was owned and possessed by them.

The learned trial court on the basis of pleadings of the parties on 23.6.2007 framed the following issues:-

Whether the plaintiff is entitled for the relief of possession, as prayed? OPP.

Whether the plaintiff is entitled to the relief of injunction, as prayed? OPP.

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

Whether suit is barred by limitation? OPD.

Whether plaintiff is stopped from filing the present suit by way of his act and conduct? OPD.

Whether suit is properly valued for the purpose of court fee and jurisdiction? OPD.

Whether suit is bad for non-joinder of necessary parties? OPD.

Whether plaintiff has no locus-standi to file the present suit? OPD.

Whether mutation No. 185 dated 12-11-1990 is illegal and void? OPD.

Whether defendant has become owner of the suit land by virtue of his possession in alternative? OPD.

Relief.

9 After recording the evidence and evaluating the same, learned trial court dismissed the suit of the plaintiffs constraining the plaintiffs to file the appeal before the learned first appellate court, which came to be allowed by the learned first appellate court necessitating the defendants to file the instant appeal.

On 30.8.2017, the instant appeal came to be formally admitted on the following substantial questions of law:

Whether the findings arrived at by the learned first Appellate Court are the result of misreading of pleadings, evidence and law, and the documents Ext. PA, PB, PX & PY, Ext. DW-2/A to DW-2/F & DW-4/A to DW-4/G are not correctly interpreted and the findings are perverse?

Whether the limitation was not rightly decided?

I have heard the learned counsel for the parties and have also gone through the records of the case carefully.

Substantial Questions of Law No. 1 & 2

Since both substantial questions of law are intrinsically interlinked and interconnected, therefore, they are taken up together for consideration and are being answered by common reasoning.

It would be noticed that the plaintiffs have based the suit on the basis of title, whereas the defendants have tried to protect their possession over the suit land by taking twin pleas.

As per the main plank of their plea, they have tried to show that the suit land after acquisition was owned by the State of Himachal Pradesh and that the revenue entries showing the plaintiffs and other co-sharers as owners therein are patently wrong and illegal. However, they have also taken the alternative plea of adverse possession by pleading that in case the revenue entries are found legal, in that eventuality, their possession had already matured into absolute ownership by way of adverse possession as their possession over the suit land was for more than 50 years right from the time of their predecessor-in-interest being open, continuous, peaceful and hostile to the knowledge of the owners.

Before, I proceed further it needs to be noticed that independent claim of title and adverse possession simultaneously in respect of the same property would amount to taking contradictory pleas. When a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property and, therefore, the plea of the title and adverse possession are mutually inconsistent and the latter can begin to operate only when the former is renounced.

Though the defendants would claim that the State is necessary party and, therefore, suit was bad for non joinder of necessary parties, yet it needs to be observed that it is not the plaintiffs, who are setting up the title against the State or in favour of the State, but are setting up the title in themselves and on the other hand, it was the defendants, who have claimed to be in adverse possession by claiming the State to be the owner and, therefore, ought to have filed counter claim by impleading the State as a party.

Apart from the above, it also needs to be noticed that the plea of adverse possession has been rejected and rightly so by both the learned courts below and such findings have attained finality. Having taken plea of adverse possession, it also needs to be noticed that a person pleading adverse possession has no equities in his favour.

The suit of the plaintiff is based on title and same is duly supported by the revenue record and the order passed by the Settlement Officer, dated 28.9.1989.

It further needs to be noticed that the specific case of the defendants is that the entries in the revenue record showing the original plaintiff to be owner of the suit land are erroneous, whereas revenue records duly support case of the plaintiffs and presumption of truth is attached therewith under Section 45 of the H.P. Land Revenue Act.

The defendants in order to rebut the presumption have examined three witnesses and also tendered documentary evidence including copies of Jamabandi Ext. DW-4/B for the year 1976-77 and Ext. DW-4/C copy of Misal Hakiyat.

Defendant No.1, Ram Sain had filed his affidavit Ext DW-4/A in support of his examination-in-chief and therein he had stated that as per Jamabandi for the year 1955-56, land denoted by Khasra No. 297 measuring 6-6 bighas was owned by the predecessor-in-interest of the plaintiffs and out of this Khasra number, land denoted by Khasra No. 789/297 measuring 3-4 bighas was acquired by the State Government for Hindustan Tibet road. But the road had already been constructed in the year 1950. The road had been constructed only on a part of this land and remaining land measuring 1-17 bighas now denoted by Khasra No. 1266 had remained vacant but possession thereof was with his father Jagti Ram. Thereafter, settlement took place in that area and large scale illegalities and irregularities were committed by the settlement authorities. People of the area made representation(s) to the Settlement Officer, who, directed an inquiry to be made by the field revenue agency and during the course thereof, wrong and illegal revenue entries were ultimately incorporated in favour of the predecessor - in -interest of the plaintiff and other co- sharers.

In support of statement of DW4 Ram Sain, the defendants also tendered in evidence copies of award passed by the Land Acquisition Collector, Ext. DW - 2/A, notification issued by the Govt. of Himachal Pradesh under Sections 6 & 7 of the Land Acquisition Act, Ext. DW-2/B, notification issued by the Govt. of Himachal Pradesh under Section 4 of the Land Acquisition Act, Ext. DW-2/E, para 55 prepared by the Land Acquisition Collector, Ext. DW-2/C, Jamabandi for the year 1976-77, Ext. DW-4/B, Misal Hakiyat Ext. DW-4/C, and Khataunies Ext. DW-4/D and mark X.

Now, in case award, Ext. DW-2/A is perused, it would be noticed that the same has been passed in respect of 123.15 bighas of land situated in village Jhakri for Hindustan-Tibet road on the basis of private negotiations.

Coming to the notification, Ext. DW-2/B, the same goes to show that the land denoted by Khasra No. 297/1 measuring 18 biswas and land denoted by Khasra No. 297/2 measuring 2.6 bighas had been proposed to be acquired by the State Government for Hindustan-Tibet road, meaning thereby that vide document Ext. DW-2/B, total land measuring 3.4 bighas out of Khasra No. 297 had been proposed to be acquired for Hindustan Tibet road.

As regards Ext. DW- 2/C, it goes to show that compensation with respect to the area of land had been assessed and such acquisition has been duly reflected in the jamabandi, Ext. DW-4/B, however at that point of time, this land had been denoted by Khasra No. 789/297 measuring 3-4 bighas.

As regards jamabandi Ext. DW-4/C, the same goes to show that during settlement, land measuring 0-14-42 hectares had been carved out of Khasra No. 789/297 and assigned min number 789/297, but its present Khasra number was shown as 1266. In the column of ownership, State of Himachal Pradesh has been shown as owner and possession thereof has been shown that of the land holders.

Now, if the nature of the entries made in the remarks column of this document is perused, the same goes to show that vide mutation No. 185, land measuring 0-03-06 hectares denoted by Khasra No. 2995/1266 had been carved out of Khasra No. 1266 and mutated in the names of Paras Ram and Jagti Ram, predecessor of the defendants. Similarly, vide this mutation, land measuring 0-11- 36 hectares denoted by Khasra No.2816/1266 carved out of Khasra No. 1266 had been mutated in favour of Nagu, grandfather of the plaintiffs and others. Both of these mutations had been attested on the basis of the correction order passed by the Settlement Officer, Ext.DW -4/E.

Similarly, on the basis of the aforementioned correction order passed by the Settlement Officer, correction of revenue entries denoted by Khasra No. 1265 (old Khasra No. 786/296 min) had also been effected vide mutation No. 185 and as a result thereof, land measuring 0-04-01 denoted by Khasra No. 2815/1265/1 and carved out of Khasra No. 1265, had been mutated in favour of Nagu and others. This is precisely what has been reflected in jamabandi, Ext. PB.

Now, as regards Khataunies Ext. DW-4/D and mark X, that were produced on record by the defendants and upon which much reliance has been placed by the learned counsel for the defendants, Khataunies Ext. DW-4/D and mark X would go to indicate that since during settlement operation, possession of Jagti Ram had been shown over 1.3 bighas of land denoted by Khasra No. 1265 and land measuring 0-14-42 hectares denoted by Khasra No. 1266, therefore, on the basis of such entries, it is contended that subsequent entries incorporated in the revenue record were wrong and illegal. However, it is rightly observed by the learned first appellate court that the defendants while making such submission had conveniently overlooked the fact that copies of Khataunies are distributed during the settlement operation to the land owners/tenants or other interested parties thereby calling for objections from them with respect to the correctness thereof and it is only after hearing the parties that final copies of Jamabandi are prepared.

Lastly, as regards copy of Misal Hakiyat, Ext. DW-4/C, which relates to Khasra No. 1266, it would be noticed that as per this document, possession over this Khasra number has been shown to be that of the land holders of village Jhakri and subsequently in pursuance of the correction order passed by the Settlement Officer, different parcels of land had been allowed to different persons including the predecessor of the defendants.

There is nothing on record to indicate even remotely that the order passed by the Settlement Officer has either been assailed by the defendants or for that matter, even by the State and thus, having attained finality, obviously the same was required to be implemented and also reflected in the records of right.

Now, adverting to the testimony of DW2 Rajesh Kumar, he had had produced the record relating to the land acquisition proceedings, whereas other DWs Sher Singh and Sukh Chain had only spoken about long possession of the predecessor of the defendants over the suit land and such statements are not at all relevant for adjudication of the instant appeal as plea of adverse possession has been rejected even by the learned trial court and has attained finality as the defendants did not challenge those findings in appeal before the learned first appellate court.

Adverting to question of limitation, it would be noticed that order on the basis of records of right having been ordered to be corrected was passed by the Settlement Officer on 28.9.1989 and the independent suit was filed on 22.1.2007 and thus, the question of limitation in such circumstances, more particularly when plea of defendants qua adverse possession has been already rejected and has attained finality, does not arise at all for consideration.

Both the substantial questions of law are answered accordingly.

In view of aforesaid discussions and for the reasons stated above, I find no merit in the instant appeal and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.