Soma Devi vs Kalo Devi

Dharam Chand Chaudhary, J.—Plaintiff is in second appeal because she is aggrieved by the judgment and decree dated 27.3.2002, passed by learned Additional District Judge-II, Kangra at Dharamshala, in Civil Appeal No. 69-N/2001, affirming thereby the judgment and decree of learned Sub Judge 1st Class (1), Nurpur, District Kangra, in Civil Suit No. 24 of 1995, whereby the suit for declaration and permanent prohibitory injunction filed by her against respondents, hereinafter to be referred as ''the defendants'', has been dismissed.

The subject matter of dispute is the land measuring 0-11-53 HM, comprised in Khata No. 113, Khatauni No. 246, Khasra No. 81, situate in Mohal and Mauza Thapkaur, Tehsil Nurpur, District Kangra. The suit land is ''Shamlat''. Plaintiff claims herself to be co-owner in possession thereof alongwith defendants having her ''Bartandari'' rights therein being right-holder of village Thapkaur, where the suit land is situated.

The stand of the defendants in the written statement filed to the suit, however, is that Shri Belo, the predecessor-in-interest of the plaintiff, had surplus (Shamlat) land in his share and as such he left the possession of such surplus land, i.e., the suit land in the year 1970-71 in favour of the State of Himachal Pradesh. He, therefore, left with no share in the suit land after 1970-71. During recent settlement operation, Shri Chet Singh, the husband of the plaintiff, had taken the possession of the suit land forcibly from the defendants. They filed suit titled, Rasil Singh and others versus Chet Singh (husband of the plaintiff) in the Court of learned Sub Judge 1st Class, Nurpur. The said suit was decreed. In an appeal preferred by aforesaid Chet Singh, learned District Judge affirmed the judgment and decree passed by learned trial Court and dismissed the appeal. It is the defendants, who in execution of the judgment and decree so passed, were put in possession of the suit land on 13.2.1995. A mutation to that effect is also sanctioned and attested in their favour on 17.2.1995. It is, therefore, the defendants alone, who are owners in possession of the suit land. It is denied that the plaintiff has any right, title or interest in the suit land.

On the pleadings of the parties, learned trial Court has framed the issues and dismissed the suit after holding full trial with the following observations:

"Though, the plaintiff has taken the specific plea in the present suit that she is co-owner in the suit property and in possession of the suit property alongwith defendants and other co-sharers, but the plaintiff has failed to prove this fact on the record. Whereas, from the statement of the defendant as well as from the entries of the Jamabandis Ex. D-1 and D-2, it is established on the record that Belo, the father of the plaintiff has surplus land to his possession and he had left the surplus in Shamlat Deh Hasab Rasad Malguzari in favour of the Govt. and as such, he has left with no share as there is a red entry to this effect in the Jamabandi Ext. D-1. Thus, the plaintiff has in fact failed to establish on the record that she is co-owner in possession of the suit land...;"

Learned Additional District Judge-II, Kangra at Dharamshala, has dismissed the appeal filed by the plaintiff and affirmed the judgment and decree passed by learned trial Court vide judgment and decree under challenge in this appeal.

The legality and validity of the impugned judgment and decree has been questioned on the grounds inter alia that the same are not based upon the evidence available on record nor by provisions of law. The evidence available on record has not been appreciated in its right perspective and rather misread as well as misconstrued. The factum of all villagers are entitled to share the Shamlat land, has not been taken into consideration. The father of the plaintiff late Shri Belo Ram allegedly never given up his rights over the suit land.

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

1) Whether findings as recorded by both the Courts below are bad on account of misreading and mis-appreciation of the pleadings of the parties as well as oral and documentary evidence on record?

2) Whether entry in red ink in the Jamabandi Ext. D-1 carries no presumption of correctness and on the basis of this document it could not have been held that the plaintiff has ceased to have any interest over the suit land and that share of the plaintiff stood given in surplus land by her predecessor?

3) Whether in the Jamabandi Ext. P-1 for the year 1990-91 share of the plaintiff is duly shown and merely for the reason that in column of possession entry of respondents is recorded that ipso-facto will not deprive her of her share?

On hearing Shri G.D. Verma, learned Senior Advocate, on behalf of the plaintiff and Shri Prince Chauhan, Advocate, on behalf of the defendants as well as taking into consideration the evidence available on record, it would not be improper to conclude that both Courts below have not committed any illegality or irregularity in dismissing the suit and declining the relief sought by the plaintiff for the reason that Shri Belo, the predecessor-in-interest of the plaintiff, had given up Shamlat land in his possession in village Thapkaur, as is apparent from red entry below column No. 9 of Jamabandi for the year 1972-73 (Ext. D-1), although, it has been claimed that this entry pertains to land other than the suit land. An effort has been made to draw a distinction on the basis of Khasra number of the land shown to be given up, as per these entries and that of the suit land, however, unsuccessfully for the reason that Khasra number of the suit land is 81. As per the latest Jamabandi Ext. P.1/D.2 for the year 1990-91, whereas the Khasra number in Jamabandi Ext. D.1, for the year 1972-73 seems to be old khasra number for the reason that as per the evidence available on record in between 1972-73 and 1990-91 consolidation operation had also taken place in the year and the khasra numbers seem to have undergone change during such proceedings. Though, it has been urged that the presumption of truth attached to such entries in the revenue record stands rebutted, however, without any substance for the reason that self-serving statement of the plaintiff alone is not sufficient to rebut the same.

On the other hand, there is no denial to the defendants'' version that they have been put in possession of the suit land consequent upon the execution of the decree passed in their favour by learned Sub Judge 1st Class, Nurpur in a suit they preferred against Chet Singh, the husband of the plaintiff because there is no denial to the case so set out by them in the written statement as the plaintiff opted for not filing the replication. It is also not her case that the land, subject matter of dispute in that suit was not the suit land and rather some other land. True it is that her father Belo had land in village Thapkaur, therefore, he was one of the right-holders of the said village. He, however, during his life time abandoned his share in the suit land being surplus and as such the plaintiff, no doubt, on inheritance of his estate stepped into his shoes and became one of the right-holders, however, has no legal right to claim herself to be joint owner of the suit land alongwith the defendants because her father had already given up his share as per entries in the Jamabandi for the year 1972-73 Ext. D.1.

On coming to the oral evidence as has come on record by way of the testimony of the plaintiff, whereas that of defendant No. 2 Jarmej Singh, who appeared in the witness-box as DW-1, the same is equally balanced. The evidence as has come on record by way of the testimony of Shri Jarmej Singh aforesaid, however, is nearer to the factual position and it is safe to place reliance thereon to arrive at a conclusion that the plaintiff is neither co-owner nor in possession of the suit land.

In view of the reappraisal of the given facts and circumstances and also the evidence available on record the present is not a case where it can be said that the Courts below have misread or misconstrued the evidence available on record and that the judgment and decree under challenge is not legally and factually sustainable and rather perverse, as claimed. Both Courts below rather have appreciated the evidence available on record in its right perspective and rightly dismissed the suit. As such, no question of law much less substantial question of law arises for determination. All the three substantial questions of law are answered accordingly. The impugned judgment and decree calls for no interference and is hereby ordered to be affirmed. Consequently, the appeal fails and the same is accordingly dismissed. Parties, however, are left to bear their own costs.