Sita Ram vs Hari Krishan

P.K. Palli, J.—The plaintiff/appellant having lost in both the Courts below is in second appeal. The parties, hereinafter in this judgment shall be referred to as ''plaintiff'' and ''defendants''.

The plaintiff claimed declaration with consequential relief of injunction that he along with proforma defendants be declared the owner in possession of the suit land and the contesting defendants, i.e., defendants No. 1 to be restrained by a decree of permanent injunction from interfering in their peaceful ownership and possession.

It was further said that 2 bighas 13 biswas of land comprising Khasra Nos. 791, 793 and 428 were orally mortgaged with possession on August 2, 1998 (Vikrami) by one Devi Ram who is said to be the predecessor-in-interest of the contesting defendants. The mortgage was in favour of Devi Saran, father of the plaintiff and the proforma defendants and the mortgage amount is said to be Rs. 511/-.

The plaintiff claimed that the suit land was already in possession of Devi Saran as a tenant much prior to the creation of the mortgage, since the mortgagor and the mortgagee both have died, the plaintiff has succeeded to the right, title and interest of Devi Saran whereas the contesting defendants have succeeded to the estate of Devi Ram mortgagor. Since a period of more than thirty years has elapsed and the contesting defendants have lost the right of redemption, the plaintiff along with the proforma defendants is the owner by efflux of time.

The second plea taken by the plaintiff is that since Devi Saran was already a tenant prior to the creation of mortgage, he cannot be dispossessed from the suit land by the contesting defendants and being a tenant, he would automatically be entitled to the conferment of proprietary rights.

The contesting defendants, besides raising the pleas of jurisdiction, estoppel and maintainability, have stated on merits that the mortgage amount stands paid and the land was got redeemed by one Tulsi Ram on behalf of Devi Rama, mortgagor and reliance in this respect is being placed on the RAPAT ROJNAMCHA dated October 10. 1960. The said land thereafter is said to be in the ownership and possession of the defendants and the plaintiff and the proforma defendants have no concern whatsoever. The status of Devi Saran as a tenant prior to the creation of the mortgage is denied. Besides this, the defendants have taken the plea of having perfected their title on the strength of adverse possession.

The Learned Trial Court, on appreciation of the material placed on that record by the parties, has held that there was nothing on record to show that Devi Saran was a tenant on the suit land at any point of time. Entry of GAIR MOUROOSI'' in the mutation of mortgage Ext.P-3 is meaningless. It was also found that the redemption stood proved vide Ext. DW-1/A which is copy of RAPAT ROJNAMCHA VAKYATI'' dated October 10, 1960. Notice was also taken of the entries forming record-of-rights Ext.P-1 to Ext.P-4, Ext.DW-2/B, Ext.DW-2/C and Ext.DW-2/D which show that the land is owned and possessed by the contesting defendants.

In view of the findings recorded on issues Nos. 1 to 6, issue No. 7 in respect of adverse possession was held to be redundant. It was also held that neither the plaintiff nor the proforma-defendants were in possession of the suit land. The plaintiff should have claimed the relief of possession also and since it had not been claimed, the suit is hit by Section 34 of the Specific Relief Act. It was in this situation that the Trial Court proceeded to dismiss the suit filed by the plaintiff.

The appeal filed by the plaintiff also stands dismissed.

Mr. G.D. Verma, learned Counsel appearing for the plaintiff, while opening his address of arguments contends that the first Appellate Court has totally confused the matter and for that purpose my attention has been brought to para 11 of the impugned judgment wherein it has been observed, "that the suit land was orally mortgaged by Devi Ram in favour of Devi Saran and Ext.P-3 is the certified copy of the mutation. In column No. 5 Devi Saran, mortgagee was the non-occupancy tenant under Devi Ram, mortgagor prior to the creation of mortgage and in this view of the matter, the findings returned by the Trial Court on issue Nos. 2 and 3 are not correct."

My attention has again been brought to para 12 of the impugned judgment where alter having held that the appeal is dismissed with costs, the Appellate Court proceeded to observe, "and the judgment and decree of the Learned Trial Court are reversed/affirmed as stated above while deciding Point No. 1"

Mr. Verma has next brought to my notice the entry existing in the mutation Ext.P-3 where the name of Devi Saran is recorded as ''GAIR MOUROOSI'' in column No. 5 prior to the creation of the mortgage.

Learned Counsel is at pains to contend that once this entry is believed, there was no occasion for the courts below to hold that Devi Saran was not the tenant prior to the creation of the mortgage and the judgments and decree passed by the Courts below are liable to be set aside.

The next limb of argument raised by Mr. Verma is that no importance could be attached to the copy of the ''RAPAT ROJNAMCHA'' in respect of redemption of the mortgage as this document has not been proved in accordance with the Evidence Act. Neither the author of the report has been examined nor any of the witness of this report has been examined by the defendants on whom lay the burden of issue No. 6 in respect of the redemption.

Mr. Verma further proceeds to contend that immediately after the report, the mutation for redemption was contested and it was specifically said that no amount in respect of redemption had been received and the mutation was left in between. Ext.P-2 is the mutation in that respect which was placed on the record during the appeal before the first appellate Court.

The learned Counsel appearing for the defendants, in reply, has adopted the line of reasoning given by the Courts below in the impugned judgments.

After hearing the learned Counsel for the parties and on careful examination of the record, I find that there is no merit in this appeal.

IX. There is no doubt that the first Appellate Court has not been careful in dictating the impugned judgment and the observations as noticed above to appear in the impugned judgment. When para 13 of the judgment is read in detail, it has the effect of washing out completely what has been said above in that judgment. Again, in para 12 it has been held that the judgment and decree of the Learned Trial Court are reversed/ affirmed as stated while deciding point No. 1.

There were two options open for this Court one to remand the case for decision afresh and the second to re-appraise the record I have opted for the second course.

It is really painful to observe that the first Appellate court should have acted carefully in dictation of the judgment. When judgments are written in this manner, it certainly gives cause to the aggrieved person to lay challenge to it that the judgment has been Appellate Court, being a Court of fact, is supposed to re-examine the evidence and then record findings with responsibility as well as care.

It may be noticed that issue No. 2 is in respect of jurisdiction. Before the Trial court no arguments were advanced from the side of the defendants and the issue was consequently decide in favour of the plaintiff and against the contest in defendants. 1, therefore, see no reason as to what persuaded the Appellate Court to reverse the finding of the Trial Court on this issue simply on the basis of Ext.P-3 which is copy of the mutation of mortgage. It further transpires that the Appellate court has wrongly held in the opening part of para 11 that Devi Saran, mortgagee in column No. 5 of Ext.P-3 is recorded as non-occupancy tenant on the suit land under Devi Ram, Mortgagor prior to the creation of mortgage.

Interestingly, in para 13 after having looked into the entries forming record-of-rights it has been categorically held that Devi Saran or his successors-in-interest, i.e., the plaintiff and proforma defendants, are not in possession of the suit land and Devi Saran was not an non-occupancy tenant on the suit land.

Issue No. 2 deals with the plea of the plaintiff wherein the claims himself a tenant prior to the creation of the mortgage. Without application of mind, the Appellate Court has reversed the findings recorded by the Trial court on this issue when there was hardly any occasion for it and the observation is based on no evidence. This mistake has further appeared in the concluding para of the judgment where it has been observed that the judgment and decree of the Trial Court are reversed/affirmed. Once the Appellate Court proceeded to reverse findings on issue No. 2, it would straightaway mean that the plaintiff''s predecessor-in-interest was a tenant prior to the creation of the mortgage and in that situation the plaintiff was certainly entitled to a decree of injunction. It is to solve this confusion that I had to go deep to scrutinise the pleas and the evidence led by the parties. Ext.P-3, as noticed above, is the mutation in respect of the creation of the mortgage. Devi Ram is one of the co-owners and Devi Saran, son of Shri Dinu is recorded in column No. 5, as ''GAIR MOUROOSI'' under Devi Ram. HISEDAR'' In column No. 15 it is reported that mortgage with possession has been created by Devi Ram, ''HISEDAR'' in favour of Devi Saran and immediately in column No. 10 Devi Saran mortgagee came to be recorded in possession in the capacity. Mutation was sanctioned on 22nd of Magar. 1988 B.K. in respect of the above said three Khasra numbers.

Simply because Devi Saran is recorded as "GAIR MOUROOSI" under Devi Rain HISEDAR'' would not by any imagination bestow upon him the status of attendant without any entry pertaining to rent as is to be given in the record-of-rights column No. 9. It is totally a different matter how his name appeared as ''GAIR MOUROOSI'' but in no manner he can be held to be a tenant. Except his document, the plaintiff has not placed any other entry showing him to be in possession as a tenant prior to the creation of mortgage. Ext.PY is the Hindi version of this very document.

Ext.DW-2/B is the Jamabandi of the year 1965-66 where Tulsi Ram is recorded in the column of cultivation as ''GAIR MOUROOSI''. He is also recorded in the ownership column as owner of 1/4th share. The name of Devi Saran is not there.

Ext.DW-2/C is the Jamabandi of the year 1970-71 where Mst. Chhangi is recorded as owner as well as in possession in respect of Khasra Nos. 791 and 793. One Ramu is recorded in possession in respect of Khasra No. 428. In the Jamabandi of the year 1975-76 Ext.DW-2/D. the entries are identical as in Ext.DW-2/C.

In the Jamabandi for the year 1981-82 Ext.DW-2/E, Mst. Himawati, Hari Krishna Dropati and others are recorded as owners whereas Hari Krishan is recorded in possession in respect of Khasra Nos. 791, 793 and Ramu is recorded in possession of Khasra No. 428. The entries are the same in Khasra Girdawari of the year 1984 Ext.DW-2/F.

The predecessor-in-interest of the plaintiff Devi Saran is not recorded as tenant nor is recorded to be in possession of any part of the suit land in all these entries from the revenue record.

Ext.P-4 is the Jamabandi for the year 1962/63. In the column of ownership Devi Ram, ''HISEDAR'' along with others is recorded and in the possory column Devi Ram, ''HISEDAR'' is recorded as ''RAHAN'' and Devi Sarna, son, of Dinu is recorded as ''mortgagee'' for Rs. 511- and it is further recorded "KHUD KASHT MURTEHAN". This is in respect of two Khasra Nos.791 and 793 measuring I bigha 9 biswas. Khasra No. 428 is recorded in possession of Ramu. It thus, transpires that Devi Saran has been recorded as mortgagee not in respect of the entire land but of 1 bigha 9 biswas comprising the above said two Khasra numbers.

Ext.PZ is the mutation of redemption which was rejected. Devi Saran had appeared and stated that the mortgage amount has been paid but the fact was denied by the other side. It was noticed that Devi Ram, mortgagor had died and unless the mutation of his inheritance was entered, the mutation of redemption could not be given effect to Ext.PX is the Urdu version of the order rejecting the mutation of redemption.

It is at this stage that a careful perusal of the ''RAPAT ROJNAMCHA VAKYATI'' Ext. DW-1/A needs to be carefully noticed. This report is dated October 10, 1960. One Tulsi Ram appeared on behalf of Devi Ram, co-sharer and admitted the factum of mortgage by Devi Ram in favour of Devi Saran for Rs. 500/-. He states that Devi Ram was the son of his uncle (TAYA) and has died. He paid Rs. 511/- to Devi Saran and Devi Saran stated that the mutation of redemption be entered in respect of two bighas 13 biswas in favour of Devi Ram and he would appear for the attestation of the mutation. It further records that in the presence of the witness Devi Saran received Rs. 511/- and signed this document.

In case the plaintiff disputed the correctness of this document, evidence could have been led by him in rebuttal as the onus of this issue was on the defendants. No evidence has been led in this respect to rebut this document.

It is at this stage that notice to be taken of the statement of DW-1 who proved this report. Not a ward has been put to this witness as to how the entries in this document are incorrect nor any objection in respect of the inadmissibility of this document was raised when it was being exhibited in the statement of the witness. I have, thus, no difficulty to hold that the suit land has already been redeemed vide Ext.DW-1/A. Once it is found that Devi Saran himself signed after admitting to have received the mortgage money, it is not open for the plaintiff who is his successor, that the suit land was never got redeemed.

I am incomplete agreement that the findings recorded by the Trial Court that the plaintiff not being in possession, could not maintain the present suit for declaration and injunction simplicitor without claiming the relief of possession.

In view of what has been said above, the appeal is ordered to be dismissed. There shall, however, be no order as to costs.