Himachal Pradesh High Court
Between: vs Sharda Dutt Son Of Sh on 10 September, 2021
Bench: Sureshwar Thakur
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 10th DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SURESHWAR THAKUR
REGULAR SECOND APPEAL No. 478 of 2008
Between:
TEK CHAND S/O SH. MOTI RAM,
S/O SH. GANGA, R/O VILLAGE
REWALSAR ILLAQUA BAGRA,
TEHSIL SADAR, DISTRICT MANDI
H.P.
......APPELLANT
(BY MR. G.R. PALSRA, ADVOCATE)
AND r
1. SHARDA DUTT SON OF SH.
DILA RAM S/O GANGA,
2. JAI KISHAN SON OF DILA RAM
S/O GANGA,
3. SMT. DEEPA DEVI,
4. SMT. HARDAI,
5. SMT. RESHAMU DEVI D/O SH.
DILA RAM, S/O GANGA,
6. SHIV LAL SON OF SMT. DURGI
DEVI,
7. BAL KRISHAN SON OF SMT.
DURGI DEVI,
8. TEK CHAND SON OF SMT.
DURGI DEVI,
9. TARA CHAND
10. KRISHAN S/O SH. NARPAL
S/O DURGI,
11. YOG RAJ S/O NARPAL S/O
DURGI, ALL RESIDENTS OF
VILLAGE REWALSAR ILLAQUA
BAGRA, TEHSIL SADAR,
DISTRICT MANDI, H.P.
12. PADMA DEVI D/O LATE SMT.
SARASWATI DEVI W/O SH.
TEK CHAND, R/O VILLAGE
MAJHWARI, P.O. REWALSAR,
TEHSIL SADAR, DISTRICT
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2
MANDI, H.P.
13. KAUSHLAYA DEVI (SINCE
DECEASED) THROUGH HER
LEGAL HEIRS
13 (a) NITYA NAND S/O SH. DILA
.
RAM
13 (b) CHAMAN LAL S/O SH. DILA
RAM
BOTH RESIDENTS OF VILLAGE
GULELA, P.O. PATRIGHAT,
TEHSIL BALDWARA, DISTRICT
MANDI, H.P.
13 ( c ) SMT. SWARAN LATA W/O
SH. GITA NAND, R/O VILLAGE
MAJHWAN, P.O. KALKHAR,
TEHSIL BALDWARA, DISTRICT
MANDI, H.P.
13 (d) SMT. REWATI SHARMA W/O
SH. KARAM CHAND, R/O
VILLAGE & P.O PATRIGHAT,
TEHSIL BALDWARA, DISTRICT
MANDI, H.P.
13 (e) CHAMBA DEVI W/O SH.
HARNAM SINGH, R/O VILLAGE
BIR, P.O. YAIPIPALU, TEHSIL
SARKAGHAT, DISTIRCT
MANDI, H.P.
13 (f) SMT. RUKMANI DEVI W/O
SH. SUNIL KUMAR, R/O
VILLAGE MOHARDHAR, P.O.
KUNNU, TEHSIL PADHAR,
DISTRICT MANDI, H.P.
14. SMT. THANTHI DEVI (SINCE
DECEASED) THROUGH HER
LRS;
14 (a) HEM RAJ (HIMU RAJ) S/O
SH. AMAR SINGH,
14 (b) LILADHAR S/O SH. AMAR
SINGH, BOTH RESIDENTS OF
VILLAGE HANSAL, P.O.
PATRIGHAT, TEHSIL
BALDWARA, DISTRICT MANDI,
H.P.
14 (c) SMT. PRAMILA (PROMILA)
W/O SH. HET RAM SHARMA,
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3
R/O VILLAGE MOTLA, P.O.
BALT, TEHSIL BALH,
DISTRICT MANDI, H.P.
15. MUNSHI RAM, S/O SH. MASTU
S/O SH. GANGA
.
16. KHEM CHAND SON OF SH.
MASTU SON OF SH. GANGA
17. TEJU S/O SH. MASTU S/O SH.
GANGA
18. DHAMESHWAR S/O SH.
MASTU S/O GANGA
19.SMT. SHANTI DEVI D/O SH.
MASTU S/O SH. GANGA,
ALL RESIDENTS OF VILLAGE
REWALSAR, ILLAQUA BAGRA,
TEHSIL SADAR, DISTRICT
MANDI, H.P.
r ......RESPONDENTS
(BY MR. LAKSHYA THAKUR,
ADOVCATE FOR R1 TO 11.)
(RESPONDENTS NO.12, 13 (a) to
13 (f), 14 (a) to 14 ( c ) AND 15 to
19 exparte)
RESERVED ON: 26.08.2021
DECIDED ON: 10.9.2021
Whether approved for reporting ?
This appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
The plaintiffs instituted Civil Suit No. 138/98/97
before the learned Civil Judge (Senior Division), Mandi, District
Mandi, H.P. In the afore suit, the plaintiffs claimed the making
of hereinafter extracted relief(s), visavis, the suit khasra
number, and, against the defendants:
"It is, therefore, prayed that in view of the above
submissions, it be declared that the plaintiffs are also
joint owners in possession of the suit land qua the
share of Smt. Purnu deceased, which their
.
predecessorininterest had inherited vide mutation
No. 424, dated 23.12.1977 and which has been
wrongly recorded in the exclusive name of Moti Ram
deceased while preparing the jamabandi for the
year198182 and repeated in the subsequent
jamabandies, which entries are totally wrong, illegal,
incorrect, null and void and liable to be struck off and
corrected and plaintiffs are entitled for the allotment
of land to them during consolidation of holdings
which their predecessorininterests had inherited
from Smt. Purnu Devi deceased and wrongly allotted
to Moti Ram or defendant and their joint possession
thereof be confirmed and defendant be restrained
from interfering therein, and a decree to the above
effect with costs of the suit, may kindly be passed in
favour of the plaintiffs and against the defendant,
and/or any other relief, warranted by the facts and
circumstances of the case, under consideration, be
granted and justice be done."
2. The trial Judge, through his decision made, on
05.11.2003, upon the Civil Suit (supra), decreed the plaintiffs'
suit.
3. The aggrieved defendant(s) carried thereagainst
Civil Appeal bearing No. 24/2004, 136/2005, before the learned
first Appellate Court. The learned first Appellate Court, through
its decision made, on 28.07.2008, upon the Civil Appeal (supra),
dismissed the appeal, and, obviously affirmed and maintained
the judgment and decree, as became pronounced earlier by the
learned trial Court.
4. The defendant, becoming aggrieved from the afore
drawn concurrent verdicts, by both the learned Courts below,
hence instituted Regular Second Appeal, bearing No. RSA No.
478 of 2008, before this Court.
.
5. When the afore Regular Second Appeal, came before
this Court on 18.09.2008, it came to be admitted on substantial
questions of law No. 1 and 3, occurring at page No. 5 of the
paperbook, substantial questions of law whereof become
extracted hereinafter:
"1. Whether both the Courts below have misread
misconstrued and misinterpreted the oral as well as
documentary evidence of the parties especially
documents Ext. DA order dated 22.08.1992 passed by
the Assistant Collector, First Grade, document Ext.
DW3/A application for correction of revenue entries
which has materially prejudiced the case of the
appellant?
2. Whether the plaintiffs are estopped to file the
present suit by their own act and conduct as they
have knowledge about revenue entries when the filed
the application for correction of revenue entries
which was dismissed on 22.08.1992?
6. The suit property became inherited, by the four
sons of Ganga Ram, namely, Dila Ram, Sunder Lal, Mastu Ram
and Moti Ram. Mutation No. 424, become attested on demise of
deceased Purnu Devi. The afore order of mutation became
attested on 23.12.1977. Plaintiffs No. 1 to 6, are the legal heirs
of Dila Ram, whereas, plaintiffs No. 7 and 8, are the legal heirs
of Sunder Lal. Moreover, proforma defendants No. 2 to 6 are the
legal heirs of Mastu Ram deceased. The defendant is the legal
heir of deceased Moti Ram. However, the Patwari Halka
concerned, while preparing jamabandi appertaining to the suit
land, rather for the year 198182, rather, made evident
departures from the afore order, of, mutation bearing No.424.
.
Though, the defendantappellant acquiesce about the validity of
the drawing of mutation No. 424, dated 23.12.1977, yet, entries
in the jamabandi for the year (supra), did not come to be made
in the completest consonance thereof. Consequently, the afore
erroneous drawing of the jamabandi appertaining to the suit
land, and, arising from the order (supra), evidently resulted in a
quantum increase of the share of the defendant, in the suit
land, which he derived therein, from Moti Ram, and, also
resulted in, a, gross reduction and substraction of the interests
of the plaintiffs, and, of the proforma defendant(s), all of whom
derive their respective shares, in the suit land, respectively,
from Dila Ram, Sunder Lal, and, Mastu.
7. The afore made entries became obviously
concurrently declared, by both the learned Courts below to be
completely vitiated.
8. Be that as it may, both the learned Courts below
also repelled the contention of the defendant, qua, his acquiring
title to the suit land, through adverse possession. Since the
afore extracted substantial questions of law, do not, cover the
afore invalidation of the defendant's plea, hence by concurrently
recorded verdicts, by both the learned Courts below. Therefore,
the afore made findings adversarial to the defendant acquire(s)
the completest vigour nor it is imperative to delve into the afore
nor to adjudicate, upon, the merits of the afore made
.
concurrent findings, as appertaining to the factum (supra).
9. The substantial questions of law (supra), devolve
upon, the maintainability of Civil Suit (supra), before the
learned trial Judge concerned, inasmuch as, it being filed
therebefore, rather beyond the prescribed period of limitation.
The afore plea become rested, upon, the factum that despite,
admittedly during the course of drawing, of, consolidation
proceedings, in the Halka concerned, rather in the year 1989
90, hence partition of the suit land, and, separate allotment(s)
thereof occurring. Therefore, it is contended that the extant suit
became enjoined to be filed, within three years thereafter,
especially when the plaintiffs, in the year 198990, acquired
knowledge about the misallotments, and, underallotments, of
the suit land, to them, during the course of proceedings supra.
Contrarily, the extant suit becoming instituted beyond three
years therefrom. Therefore, the extant suit is contended to be
clearly outside the afore prescribed period of limitation. The suit
became instituted, hence for the quashing and annulment, of
revenue entries in the jamabandies, appertaining to the year
198182, and, also for annulment of entries in the jamabandies
prepared in pursuance to partition(s) being made, during
consolidation operation(s). Moreover, it is also contended, that
since the plaintiffs preferred, an application for correction of the
apposite revenue entries, application whereof, is embodied in
.
Ext.DW3/A. The afore application became instituted, on, 1991.
Moreover, with an order being made thereon, on, 22.08.1992,
and, as becomes borne in Ext. DA. Therefore, it is argued, that
even from the order, of, 22.08.1992, the extant suit, claiming
therein, the relief supra, rather enjoined its institution within
three years therefrom. However, the suit becoming instituted
beyond three years therefrom, inasmuch as, in the year 1997,
thereupon, the extant suit is contended to be barred by
limitation.
10. The afore drawn argument, before this Court is
completely fallacious. The reason for making, the afore
conclusion, becomes drawn from the factum, that even though
apposite knowledge of the plaintiffs, visavis, occurrence of
fallacious entries, borne in the jamabandies appertaining to the
suit land, and, relating to the year, 198182, and, visàvis, the
ones which occurred in the subsequent jamabandi, did arise in
the year 198990, and, also the knowledge of the plaintiffs
about the making of, a, disaffirmative order by the learned
Assistant Collector concerned, upon, their application for
correction of erroneous revenue entries, did arise in 1992.
However, any deriving(s) of apposite knowledge by the plaintiffs,
about the fallacious revenue entries, in the years supra, does
became meaningless, hence with this Court, declaring them
void ab initio, conspicuously, when they are made in the
.
completest disharmony, visavis, mutation No. 424, attested in
the year, 1977.
11. Since, the aforestated, revenue entries, as, made
with the complete disharmony with the mutation (supra), and,
rather sequeled, a, gross increase in the interest of the
defendant in the suit land, and, also concomitantly, brought a
gross reduction, in the interest of the plaintiffs, and, of the
proforma defendant(s), in the suit land. Therefore, the vice of
voidness, in the name of making, all the afore entries, did
continue to persist, and prevail, also even at the time of drawing
of consolidation proceedings, and also, upto conclusions
thereof. Moreover, the allotment(s) through partition, as made
during course thereof, rather exclusively to the defendant, and,
to the ouster of the plaintiffs, do also obviously, become stained
with the vice of voidness.
12. The learned counsel for the appellant, on making the
afore address, has rested it upon Ext. DW3/A, filed in the year
1991, and, whereat, a disaffirmative order, became pronounced,
on,22.08.1992, and,he obviously contends that the relevant period
of three years, for the institution of the extant declaratory suit,
was to be computed from the date of order becomes pronounced
thereon, inasmuch as, from 22.08.1992. However, the afore
contention is rejected. The reason being, that he has remained
completely oblivious, to, the factum that all the entries carried in
.
the jamabandies, are, void ab initio. Moreover, he has remained
completely unmindful, of, the factum that, apart from the
declaratory relief, as becomes claimed, in the extant suit, a further
relief of permanent prohibitory injunction also becomes espoused.
The effect of the afore declaratory relief, becoming, hence
combined with the relief of injunction, is that, it is connotative of
the plaintiffs seeking joint possession alongwith the defendant, in
the suit land, since the time of preparation of jamabandi
appertaining to the year, 198182, whereat, the suit land,
remained undivided and unpartitioned. The principle governing
the grant of relief of injunction, is embodied in the canon, that
since occurrence of partition, through metes and bounds,
amongst the coowners concerned, rather thereupto, each co
owner holding unity of title and community of possession, over
every inch of the undivided properties. Consequently, even if the
defendant had untenably increased his share in the joint suit
land, through the questioned void ab initio revenue entries,
becoming drawn by the Patwari concerned, in the jamabandi
concerned, yet, he throughout continued to hold possession, even
of the plaintiffs' share, hence in the undivided suit property.
Moreover, the plaintiffs and proforma defendant(s) concerned,
could not be deprived of their joint possession alongwith the
defendant, in the undivided suit property, especially when, upto
dismemberment of the joint estate, through metes and bounds,
.
rather each coowner held unity of title, and, community of
possession, over the undivided suit land. Therefore, the relief of
injunction, is coequivalent to the relief of joint possession, of the
plaintiffs alongwith the contesting defendant, over the undivided
suit land, hence, since the year 198182, and lasting upto 1989
90, whereat also, despite the principle (supra), appertaining to the
jointness of the suit land, obviously surviving, inasmuch as, till a
valid dismemberment of the suit property, through metes and
bounds, hence occuring, thereupto, each coowner holding unity
of title and community of possession, over every inch of the
undivided property(ies). The afore principle became evidently
breached, by the consolidation staff concerned, as they visibly
flouted, the mandate of a valid order of mutation No. 424, made in
the year 1977. Therefore, the effect of the afore invalid, almost
complete ouster of the plaintiffs from the suit land, does also
obviously, make the relief, of injunction, as claimed alongwith the
declaratory relief (supra) to become construable, as, relief of co
possession over the suit land, of the plaintiffs, alongwith the
contesting defendant. The effect of the afore made inference, is
that, the extant suit, does not stricto sensu become, a, simplicitor
suit, for declaration, for quashing the revenue entries concerned,
but also is a suit for copossession of the plaintiffs, alongwith the
contesting defendant from the year 198182, and lasting upto the
conclusion of the illegal consolidation operation(s), as became
.
concluded, in the year, 198990. Moreover, it is also construable to
be coequal to the relief of copossession, even if, a disaffirmative,
rather became recorded, upon, Ex.DW3/A, by the Collector
concerned. Further, the consequent effect of the afore inference, is
that the plaintiffs' suit for declaration, as well as for the afore relief of
injunction, tantamount(s) to theirs, validly claiming copossession
alongwith the contesting defendants, over the suit khasra numbers,
and, hence the suit was to be filed within 12 years, from 198990 or
from 1990. Since, the suit has been filed within 12 years from the
afore period of time, therefore, it is not barred by the vice of voidness
nor is misconstituted, rather is maintainable, before the learned
trial Judge. Therefore, substantial questions of law are decided in
favour of the plaintiffs, and, against the defendant.
13. There is no merit in the appeal and the same is
dismissed. The impugned judgment(s) and decree(s) passed by the
learned Courts below are affirmed and maintained. No order as to
costs. Decree sheet be prepared accordingly. All pending
applications are disposed of accordingly. Records of the learned
Courts below be sent back forthwith.
(Sureshwar Thakur)
Judge
10th September, 2021
(CS/raman)
