Back
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sureshwar Thakur, J.
Satya Devi and Others – Appellant
Versus
Rajesh Kumar and Others – Respondents
Regular Second Appeal No. 55, 60 of 2007
Decided On : 12-09-2019
LAND REVENUE ACT - PARTITION - FAMILY ARRANGEMENT - INJUNCTION - CO-OWNERSHIP - JAMA BANDI - EVIDENCE ACT - ADVERSE INFERENCE - SPECIFIC RELIEF ACT - H.P. LAND REVENUE ACT - SECTION 134, 135 - RELEVANT PROVISIONS - INTERPRETATION - APPLICATION - EFFECT - REVENUE OFFICER - ORDER - VALIDITY - MUTATION - PHYSICAL POSSESSION - DELIVERY - NECESSITY - CO-OWNERS - ENTITLEMENTS - APPLICATION - TIME LIMIT - CORRECTIONS - REVENUE RECORDS - RELIANCE - VALIDITY - WITNESS - EXAMINATION-IN-CHIEF - TESTIMONY - RELEVANCE - SUBSTRATUM OF LIS - APPRAISAL - NECESSITY - INJUNCTION - GRANT - CONDITIONS.
Fact of the Case:
Plaintiffs instituted suits for permanent prohibitory injunction, seeking a decree, restraining the defendants from interfering with or alienating, and changing the nature of the suit Khasra Nos. The afore espoused reliefs, in the apposite suits, were declined by the learned Civil Judge concerned. In separate appeals, instituted therefrom, hence by the aggrieved plaintiffs, before the learned first appellate Court concerned, rather both suffered, an alike fate, of, verdicts, of, dismissal, as also made respectively, upon Civil suit Nos. 122/1 of 2003, and, upon civil suit No. 2/1 of 2004.
Finding of the Court:
The reflections, as carried, in the entries, vis-a-vis, the suit property, and unveiling, qua it being recorded, as joint interse the contesting litigants, thereupon they enjoy an aura, of, conclusivity, and, hence the decree, espoused, by the plaintiff, was grantable, vis-vis, her, and also vis-a-vis, her sons, impleaded as performa defendants, in Civil Suit No. 122/1 of 2003.
Issues: 1. Whether both the Courts have misconstrued and misapplied the relevant provisions of Evidence Act by unnecessarily drawing adverse inference against the plaintiff is not stepping into the witness box? Have not both the Courts below rendered erroneous findings by ignoring the ratio of judgment of the Hon'ble Supreme Court in this regard? 2. Whether the Lower Appellate Court has committed grave error of law and jurisdiction in holding that partition between the parties has taken place without setting aside the finding of the learned trial Court on issue No.3 and without assigning any cogent reason in disagreeing with such finding of the trial Court? Has not the lower appellate Court acted in perverse and erroneous manner in misconstruing the relevant provisions of H.P. Land Revenue Act? 3. Whether the trial Court has committed grave illegality and irregularity in failing to rely upon the revenue record, correctness of which was not disputed by the defendants? Are not the findings returned by the learned trial Court that the property has not been property identified, arbitrary and erroneous, when the defendants respondents did not dispute the identity of the suit land? 4. Whether the trial Court has acted in erroneous and perverse manner in refusing the relief of injunction when it rendered the findings that the claim of the defendant to be in separate possession on account of family arrangement is not sustainable? Has not the trial Court mis-appreciated and misapplied the relevant provisions of Specific Relief Act by declining the relief of injunction without determining the status of respective parties over the suit land?
Ratio Decidendi: The afore drawn conclusions, are, lacking in legal vigor, (a) given though Ext, D-5, being a statutory application, cast before the Revenue Officer concerned, hence seeking through the aegis, of, the relevant agency concerned, hence, dismemberment, of, the joint estate, (b) and though, the predecessor-in-interest of the plaintiffs, as unfolded, by Ext.D-1, withdrew hence the afore application, on anvil, qua a family partition, or a takseem khangi, occurring interse them, (c) and, even though the order borne in Ext.D-5, may be, inferable, to be an order, made within the ambit, of, Section 135 of the H.P. Land Revenue Act, provisions whereof stand extracted hereinafter: "135: Affirmation of partition privately affected- (I) in any case in which a partition bas been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition. (2) On receiving the application, the Revenue Officer shall inquire into the case, and if he finds that the partition has in fact been made, he may make an order affirming it and proceed under Section 131,132,133 and 134, or any of those sections, as circumstances may require, in the same manner as if the partition had been made on an application to himself under this Chapter". (c) and may be construable, to be affirming, the, apt takseem Khangi, or a family partition entered into, interse, the predecessor-in-interest of the plaintiff, and, the predecessor-in-interest, of, the contesting defendants, (d) nonetheless, any making, of, the, afore conclusion, would not perse beget hence a conclusion, qua the afore order, also coming to be implemented, comprised in (e) mutations in concurrence therewith, being attested, by the revenue officer concerned, f) physical possession, of, dismembered tracts of land, being handed over, to each, of, the co-owners concerned. The afore imperative necessity, of, subsequent to the making of Ext. D-1, hence delivery, of, physical possession, of, the dismembered tracts of land, being peremptorily handed over, to each, of the co-owners concerned, for hence, the, completest, and, efficacious dismemberments, hence occurring, hence arises, from, a statutory injunction cast, in Section 134 of the H.P. Land Revenue Act, provisions whereof stands extracted hereinafter: "134. Delivery of possession of property allotted on partition- An owner of tenant to whom any land or portion of a tenancy, as the case may be, is allotted in proceedings for partition shall be entitled to possession thereof, as against the other parties to the proceedings and their legal representatives, and a Revenue Officer shall, on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last forgoing section, give effect to that instrument so as it concerns the applicant as if it were a decree from immovable property." (i) and when the mandate thereof is applicable, vis-a-vis, the proceedings, for, partition hence drawn, before, the revenue office concerned, and when Ext. D-1, is, construable, to, be a proceeding, drawn, under Section 135 of the H.P. Land Revenue Act, (ii) thereupon, with a statutory edict, standing cast therein, vis-a-vis, the entitlements, of, the co-owners concerned, to receive, physical possession, of, apt the dismembered tracts, of, land, as, comprised in, Ext. D-1, (g) through theirs/his casting hence an application, for, the afore purpose rather before the Revenue Authority concerned, rather, within three years, from the recording of Ext.D-1, and, (h) also thereafter, compatible therewith reflections, being cast, in the revenue records concerned, (i) whereas evidently, with, all the afore mechanisms, remaining neither re-coursed nor apposite mutations, in, consequence to the making, of, Ext. D-5, standing recorded, hence by the Revenue Officer concerned, nor also, in compatibility with Ext. D-1, the requisite corrections, being made, in the Revenue record concerned, (j) thereupon any reliance, upon, Ext. D-1, by both the learned Courts below, to perse, on its anvil, hence conclude qua being a completest valid dismemberment, of, the recorded joint estate, amongst the predecessor-in-interest of the plaintiff, and, of the contesting defendants, is, perse grossly fallacious, and hence, the afore findings, are, reversed.
Final Decision: In view of this, there is merit in both the appeals, and, the same are allowed, and, the impugned judgments and decrees, passed by both the learned courts below, upon Civil Appeal No. 49 of 2005 and upon Civil Appeal No. 48 of 2005, are quashed and set aside. Also, the pending applications, if any, are also disposed of. No costs.
JUDGMENT :
Sureshwar Thakur, J.
The plaintiffs instituted suits, for, permanent prohibitory injunction, seeking there throughs hence rendition, of, a decree, vis-a-vis, the defendants, qua theirs being restrained, from, interfering with or alienating, and, changing, the, nature, of, the suit Khasra Nos. The afore espoused reliefs, in the apposite, suits, were, declined, by the learned Civil Judge concerned. In separate appeals, instituted therefrom, hence by the aggrieved plaintiffs, before the learned first appellate Court concerned, rather both suffered, an alike fate, of, verdicts, of, dismissal, as also made respectively, upon Civil suit Nos. 122/1 of 2003, and, upon civil suit No. 2/1 of 2004. The contesting defendants, in both the afore suits, are the ones, as enumerated, in, the memo of parties, appended with the verdicts, as, stood rendered, by the learned Civil Judge concerned, hence thereons. However, Kuldeep Kumar, Rajesh Kumar and Vijay Kumar, are, the sons of Paras Ram, and, the latter, is, the pre-deceased husband, of, the plaintiff, one Satya Devi, and, the afore sons of the plaintiff, were arrayed, as performa respondents/defendants, in Civil Suit No. 122/1 of 2003. Since, there is hence commonality, of, interest interse the plaintiff, and, the afore impleaded performa defendants, in the apposite civil suits, (i) thereupon, upon the dismissal of the plaintiffs' suit, obviously, Satya Devi became the aggrieved therefrom, and also hence the performa defendants concerned, namely, Kuldeep Kumar, Rajesh Kumar, and, Vijay Kumar, hence, holding commonality, of, interest with the plaintiff, also became aggrieved, from, the verdicts, hence dismissing the plaintiffs' suits. However, Satya Devi, also independently, instituted civil appeal No. 48 of 2005 and also, hers, alongwith Kuldeep Kumar, Rajesh Kumar, and, Vijay Kumar, instituted Civil Appeal No. 49 of 2005, challenging therethrough(s), the, verdicts, of, dismissal, of, the plaintiff one Satya Devi's suits, hence by the learned Civil Judge concerned, and, both the afore appeals, were dismissed, and, consequently, in an alike manner, RSAs No. 55 of 2007, and, RSA No. 60 of 2007, were instituted, before this Court. Since both the appeals involve common questions, of, fact and, of, law, hence both are amenable, for, a common verdict being recorded thereon.
Facts of RSA No.60 of 2007
2. Briefly stated the facts of the case are that the dispute between the parties is the land comprising of Khata khatoni No. 67/73, Khasra No. 738/562, measuring 15.9 bighas, Khata Khatauni No 55/60, Khasra No. 809/559, measuring 7.16 bighas Khata khatoni No. 70/76 to 78 kitas 7, measuring 9.9 bighas, Khata khatoni No. 73/89, Khasra No. 407, measuring 5.18 bighas and Khata khatoni No. 71/79 to 87, kitas 11, measuring 23.5 bighas, situated in village Nalag, Pargana and Tehsil Sadar, District Bilaspur, vide copy of Jamabandi for the year 2000-01. The plaintiff filed civil suit against the defendants in the Court of the learned Civil Judge (Senior Division) Bilaspur, for seeking a decree for permanent prohibitory injunction, restraining the defendants No. 1 to 6 from interfering, transferring, alienating and changing the nature of the suit land touching the best portion, situated on the road side and also from dispossessing the plaintiff and proforma defendants from their respective share till the land is partitioned, and in the alternative for possession if the contesting defendants succeeded in dispossessing the plaintiff and proforma defendants from the suit land and that if the contesting defendants succeeded in alienating any part of the suit land exceeding to their share then the same may be declared null and void and the possession thereof be restored to the plaintiff and proforma defendants, in its original nature. It was averred that the plaintiff is joint owner in possession of the suit land alongwith the defendants and proforma defendants and that the defendants have limited share in th
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
