Sunder Lal vs State of HP and anr

Kuldip Singh, Judge

The plaintiff has filed second appeal against judgement, decree dated 27.4.2001 passed by the learned District Judge, Chamba in Civil Appeal No. 8 of 2000 affirming the judgement, decree dated 20.11.1999 passed by learned Senior Sub Judge, Chamba in Civil Suit No. 71 of 1997.

The facts in brief are that land comprised in khata khatauni No. 600 (old) measuring 2 kanals, situate in Mohal Rajnagar was allotted to Bhondu, the grand father of the appellant under Nautor Scheme. After the death of Bhondu the land was inherited by the appellant. It has been alleged that appellant is owner in possession of land measuring 11 biswas comprised in khasra No. 699, Khata Khatauni No. 180 min/ 134 min situate in Mohal Rajnagar. The revenue entries in favour of the State are wrong and illegal.

The further case of the appellant is that land comprised in Khatauni No. 600 (old) measuring 2 kanals corresponding to 1 bigha 5 biswas is situated in Mohal Rajnagar. Bhondu had three sons, namely Jawahar, Damodar and Hiru. Damodar and Hiru died issueless and on the death of Bhondu his estate was inherited by the appellant, who is in possession of the suit land as owner. It has been stated that in the month of September 1996 the appellant came to know about the wrong entries in the name of the respondents. In these circumstances, the suit was filed.

The suit was contested by the respondents by filing written statement. The preliminary objections of jurisdiction, non-joinder of necessary parties, maintainability, valuation, validity of notice u/s 80 CPC, lack of cause of action, limitation were taken. On merits, it has been alleged that appellant or his ancestors never protested at the time of settlement in the year 1956 about the entries and as per record Bisho son of Deu was recorded as encroacher on the part of the suit land, he was dispossessed by an order dated 4.9.1958 of Settlement Officer. Bhondu s/o Mussa was never recorded in possession of the suit land in the revenue record. The suit for declaration of the nature filed by the appellant cannot be entertained after 70 to 75 years. It has been alleged that respondent No. 1 is the owner of the suit land.

The replication was filed by the appellant reiterating the stand taken in the plaint and controverting the defence projected by the respondent. On the pleadings of the parties, the following issues were framed:

Whether the plaintiff is owner in possession of the suit land as alleged? OPP.

Whether the entries in the revenue record in favour of State are wrong and illegal, as alleged? OPP.

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

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

Whether the suit is not maintainable? OPD.

Whether the suit is not properly valued for the purpose of court fee and jurisdiction if not, what is proper value? OPD.

Whether no legal and valid notice has been served upon the defendants, if so, to what effect? OPD.

Whether the plaintiff has no cause of action? OPD.

Whether the suit is barred by limitation? OPD.

Relief.

The issues No. 1 to 4, 6, 7 and 9 were answered in negative and issues No. 5 and 8 in affirmative and the suit was dismissed by the learned Senior Sub Judge on 20.11.1999. The appeal has been dismissed by the learned District Judge on 27.4.2001. The appellant has thus come in second appeal, which has been admitted on the following substantial questions of law:

Whether there is presumption of truth and correctness attached to ''Khatauni Termim'' and the same has been wrongly described by the learned courts below?

Whether the courts below could rely on order Ex. DW 1/A when neither the original was produced to the court nor author thereof was examined.

Whether the learned lower court (Appellate) has wrongly rejected the application filed by the appellant for the appointment of the Local Commissioner for comparison the old Khatauni Termim 600 with Khasra No. 699, 180 min/ 214 min?

I have heard Mr. Anand Sharma, learned counsel for the appellant and Mr. J.S. Rana, learned Assistant Advocate General for the respondents and have also gone through the record. It has been submitted by the learned counsel for the appellant that presumption of truth is attached to ''khatauni termim'', the courts below have erred in relying order Ex. DW 1/A. The learned lower appellate court has erred in rejecting the application, under Order 26 Rule 9 CPC, for appointment of local commissioner, which was filed for comparing the old ''khatauni termim'' 600 with khasra No. 699 khata khatauni No. 180 min/ 214 min.

The learned Assistant Advocate General has submitted that no presumption of truth is attached to ''khatauni termim'', which has been prepared at the time of settlement. The presumption of truth is attached to missal hakiyat prepared during settlement and jamabandi. The courts below have rightly considered Ex. DW 1/A. The application for appointment of local commissioner has been rightly rejected by the lower appellate court. He has submitted that in second appeal re-appreciation of evidence is not permissible unless the view taken by the courts below is perverse. He has supported the impugned judgement and decree.

The substantial question of law No. 1 is taken first for determination. It has been submitted by the learned counsel for the appellant that presumption of truth is attached to ''khatauni termim'', which is prepared at the time of settlement, but in support of this submission, the learned counsel for the appellant has not relied any statutory provision. Section 45 of H.P. Land Revenue Act, 1954 provides that an entry made in a record of rights in accordance with law for the time being in force or a periodical record in accordance with the provision of this chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.

The presumption of truth is attached to missal hakiyat or jamabandi, but these documents cannot be equated with khatauni termim, which is prepared during the process of settlement. The missal hakiyat is prepared during settlement. The learned counsel for the appellant has failed to point out any provision for recording a finding that presumption of truth is attached to ''khatauni termim'', which is prepared during settlement prior to preparation of missal hakiyat. Thus substantial question of law No.1 is decided against the appellant.

The learned counsel for the appellant has submitted that the courts below have erred in relying Ex.DW 1/A in dismissing the suit of the appellant. It has been submitted that Ex. DW 1/A has not been proved and, therefore, this document is inadmissible in evidence. DW 1 Gandharav Singh, Reader to Tehsildar Chamba has stated that S.O. Missal No. 1578 State vs. Bisho was decided on 4.9.1958 and the file has been destroyed. The copy of goshwara register is Ex. DW 1/A. This witness has not been cross-examined that Ex. DW 1/A is not the copy of original record or it is a forged document. It emerges from the statement of DW 1 that in fact file No. 1578 decided on 4.9.1958 has already been destroyed and entry has been made in the relevant register, copy of which is Ex. DW 1/A. The goshwara register is kept in the official routine and, therefore, it cannot be said that Ex. DW 1/A is inadmissible in evidence. The perusal of Ex. DW 1/A indicates that reference of file No. 1578 has been given in this document and it has also been stated in the document that file has been destroyed on 6.2.1976.

In Ex. DW 1/A, it has been stated that encroacher (Bisho) was found in possession after December 1952 and he has been evicted from khasra No. 699 measuring 11 biswas u/s 163 of H.P. Land Revenue Act, 1954. Ex. DW 1/A does not indicate that khasra No. 699 measuring 11 biswas was in possession of appellant or his predecessor. The description of suit land and relied by the appellant is given in Ex. PA wherein no khasra number has been mentioned, rather khatauni No. 600 nautor has been mentioned. However, the appellant has failed to connect khatauni No. 600 nautor with khasra No. 699 measuring 11 biswas as shown in jamabandi for the year 1994-95 Ex. PB. In fact, there is no documentary evidence on record to connect khatauni No. 600 (old) with khasra No. 699 measuring 11 biswas which as per Ex. PB copy of jamabandi for the year 1994-95 is owned by State of Himachal Pradesh. The appellant has miserably failed to establish that he is owner in possession of land comprised in khasra No. 699 measuring 11 biswas. The two courts below have rightly appreciated the material on record. In second appeal, re-appreciation of evidence is not permissible. The substantial question of law No. 2 is decided against the appellant.

The learned counsel for the appellant has submitted that learned lower appellate court has erred in rejecting the application of appellant under Order 26 Rule 9 CPC for comparing old ''khatauni termim'' 600 with khasra No. 699. The appellant no doubt had filed an application under Order 26 rule 9 CPC before the learned lower appellate court praying therein for appointment of local commissioner for comparing the land comprised in khasra No. 600 termim with the suit land measuring 11 biswas comprised in khasra No. 699. 13. This application was dismissed by the lower appellate court on 27.4.2001.

13.The application for appointment of local commissioner for the purpose prayed in the application filed by the appellant in the court below is misconceived. The local commissioner at the most after visiting the spot can locate the land comprised in khasra No. 699. The location of land is not in dispute, what is in dispute whether the land as claimed by the appellant was ever allotted to his predecessor. In these circumstances, the lower appellate court has committed no error in rejecting the application, the local commissioner cannot collect the evidence whether old khatauni No. 600 termim was ever granted to the predecessor of the appellant. Thus substantial question of law No. 3 is also decided against the appellant.

In view of above discussion, there is no merit in the appeal, which is accordingly dismissed with no order as to costs.