Tulu (Dead), plaintiff through LRs (Smt. Heti Devi and Others) vs Bhedu (Dead) through LRs (Smt. Pritu Devi and Others) and Smt. Tulli Devi (Dead), deleted.

Justice Sanjay Karol, Judge

This is the plaintiff''s Regular Second Appeal filed, u/s 100 of the Code of Civil Procedure, assailing the concurrent findings of facts recorded by the Courts below. The appeal was admitted on the following substantial questions of law:

Whether the findings of the Courts below are based on no evidence and are result of complete total misreading of evidence on record?

Whether the mutation attested on 9.5.1955 can be held to be illegal after more than 40 years?

Plaintiff Shri Tulu alias Tule Ram son of Shri Shri Jeetu filed a suit praying a relief of injunction and in the alternative for possession of the suit land, against defendant No. 1 Shri Bhedu alias Bhed Ram and his mother Smt. Tulli Devi (defendant No. 2), both legal heirs of Shri Bhimi Ram, brother of Shri Jeetu. Suit was filed on the premise that Shri Jeetu was allotted the suit land by way of nautor (grant) and defendants are interfering with his possession.

Defendants resisted the suit, denying the factual matrix and inter alia pleading that the suit land was in fact allotted as a grant in favour of Shri Lehnu, common ancestor of the parties. By virtue of inheritance, plaintiff, defendants and other legal heirs of Shri Lehnu are joint owners in possession thereof.

Based on the pleadings of the parties, trial Court framed the following issues:

Whether the suit in the present form is not maintainable?:-

OPD.

Whether the suit is not within time, as alleged?:-

OPD.

Whether the plaintiff is owner in possession of the suit land?:-

OPD.

Whether the defendants are threatening to dispossess the plaintiff from the suit land by extending the boundaries of their land and constructing the dangas and fencing thereon, as alleged?

OPP.

Whether the plaintiff is entitled to possession of the suit land as prayed for?

OPP:-

Relief.

In the suit, evidence was led by the parties.

The trial Court (Sub Judge 1st Class, Kullu) vide its judgment and decree dated 5th March, 1999, passed in Civil Suit No. 222/94, titled as Shri Tulu versus Shri Bhedu and another, dismissed the suit in totally, inter alia holding that neither the plaintiff is in possession of the suit land nor is he entitled to possession thereof as exclusive owner. Trial Court specifically held that parties to the suit, amongst others, had inherited and acquired their right in the suit land through their common ancestor Shri Lehnu and as such are in joint possession thereof.

Plaintiff unsuccessfully assailed the aforesaid judgment and decree, by way of Civil Appeal No. 41 of 1999, titled as Shri Tulu versus Bhedu and another, which stands dismissed by the District Judge, Kullu, in terms of impugned judgment and decree dated 18th April, 2000.

Gravamen of the plaintiff''s contention rests on the Patta of nautor (Ex. PX, dated 6.6.1953) and mutation (Ex. D-2 dated 2.5.1955) executed in his favour. On first brush, the challenge appears to be well founded. But however, close scrutiny of the pleadings and the evidence, oral and documentary, led by the parties, would only reveal that findings rendered by the trial Court are not only well reasoned but are also based on correct appreciation of the entire material placed on record by the parties.

At this juncture, reproduction of the following findings returned by the lower Appellate Court, with approval, would be absolutely necessary:

Further, when the entire land was exclusively owned and possessed by Lehnu common ancestor of the parties, why Lehnu was not given any notice when the change in the revenue record was made as per mutation No. 263 dated 9.5.55. From the bare reading of the proceedings of mutation, only Lambardar Ses Ram and Jitu were present when mutation was attested by the revenue agency. As per copy of mutation Ex. D-2 in the column of possession name of Lehnu son of Makhnu is mentioned but in the remarks column a reference is made that from the perusal of Patta No. 281 Jitu has acquired nautor on pay of Rs.300/- to Rai Sahib and only on the basis of this entry, mutation has been attested. But there is no reference whether the possession of the suit property was taken back from Lehnu or not and in absence of specific evidence the earlier entries of jamabandi cannot be ignored. The name of Lehnu is appearing even in the jamabandi for the year 1948-49 in the column of possession and similar entries are also appearing in the jamabandi for the year 1953-54 Ex. D-4. Even the plaintiff himself has admitted that Lehnu was his grandfather and also grandfather of defendant No. 1 Bhedu. He has also not denied that his grandfather had two wives. He has admitted that Tohru, Lajju, Doli and Amari were born from Gumti. The plaintiff himself has admitted that the entire landed property of his grandfather Lehnu was inherited by his father, Tohru, Doli and Lajju. The defendant Bhedu has also stated that Lehnu common ancestor of the parties was owner in possession of the suit property which was granted to him as nautor by erstwhile ruler of Rupi estate. He has also stated that Jitu father of the plaintiff got 1/4th share in the suit property and remaining 3/4th share was inherited by the defendants. The defendants have stated that the mutation regarding grant of nautor attested in favour of Jitu is illegal and has been attested with the connivance of revenue officials. According to the defendants when the land was already in possession of Lehnu common ancestor of the parties how that can be subsequently allotted to Jitu. Even DW-2 Human Chand has also proved the case of the defendants. The defendants have alleged that they are in the exclusive possession of the entire suit property which was allotted to them in the family arrangement but the plea of the defendants cannot be accepted as there is nothing on record to prove the family arrangement. In such circumstances, the plaintiff and defendants are held to be the joint owner-in-possession of the suit property. The land was shown in possession of Lehnu as per jamabandi for the year 1948-49 Ex. D-1, 1953- 54 Ex. D-4, 1955-56 Ex. D-3 which prove that the land was already in possession of Lehnu common ancestor of the parties. Hence the question of grant of same land in favour of Jitu son of Lehnu does not arise. Moreover, the plaintiff has failed to prove, whether his grandfather was dispossessed from the suit property or the possession was taken from him by Jitu his father by following the procedure and in absence of specific evidence, the plaintiff is not entitled for any relief of injunction or possession. Accordingly, the point is answered.

Record also reveals, which fact also could not be disputed, that Shri Lehnu was actually in possession of the suit land and tilling the same in his own right during his life time. He died on 12th July, 1958. Shri Lehnu had two wives, i.e. Smt. Almu and Smt. Gumti. Smt. Gumti predeceased Shri Lehnu. Through Smt. Almu, Shri Lehnu had one son, i.e. Shri Jeetu i.e. father of plaintiff Shri Tulu. Through Smt. Gumti, Shri Lehnu had four children, i.e. sons (i) Shri Tohru, who predeceased Shri Lehnu, leaving behind his wife Smt. Dhobi, (ii) Shri Laze Ram, whose legal heirs are the present defendants; and two daughters, i.e. (i) Smt. Doli and (ii) Smt. Amri, who predeceased Shri Lehnu. As on the date when Shri Lehnu died he left behind the following legal heirs, i.e. Smt. Almu, Shri Laze Ram, Smt. Doli and Smt. Dhobi.

From the record, it could not be shown that the grant of nautor made in favour of Shri Lehnu was either revoked or his possession thereupon was taken away by the grantee prior to his death. Thus execution of Patta (Ex. PX) and attestation of mutation (Ex. D-2), executed in favour of the plaintiff during the life time of Sh. Lehnu, were paper entries and continued to be only on record without being implemented and given effect thereto.

It is urged that share of Smt. Dhobi, by way of a Hibba (gift deed), stands bequeathed in favour of the plaintiff. Significantly the Courts below have not determined the shareholding of the successors-in-interest of Shri Lehnu or for that matter any one of his successors. They have simply held the plaintiff not to be in exclusive possession or ownership of the suit land.

I have carefully examined the testimony of the plaintiff and do not find any reference in the same about the manner in which his immediate predecessor-in-interest acquired any right, title or interest in the suit land. Also he does not specifically deny that Shri Lehnu was in possession of the suit land, as owner and continued to remain as such till the date of his death, which took place in the year 1958.

The defendants have not challenged the entriesof mutation but on the contrary plaintiff is asserting his right on the basis thereof which were merely on paper. It is a settled position of law that fraud would vitiate everything and there cannot be any limitation in a case of fraud. Legal heirs of Shri Lehnu were not even aware of such paper entries. Hence, it would not lie in the mouth of the plaintiff to contend that the defence taken by the defendants is barred by limitation. Thus, in my considered view, findings rendered by the lower Appellate Court, cannot be said to be based on no evidence or a result of complete and total misreading of evidence on record. There is no ground for interference. Findings of fact are neither perverse nor incorrect. Substantial questions of law are answered accordingly.

In view of the foregoing reasons, appeal stands disposed of, so also the pending application(s), if any.