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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SURESHWAR THAKUR, J.
Gagan Singh (since deceased) through his LRs & others – Appellant
Versus
Birbal Singh and others - Respondents
Review Petition No. 129 of 2019 in RSA No. 405 of 2004 alongwith cross objections No. 499 of 2004
Decided On : 09-03-2021
Civil Procedure Code, 1908 – Section 151, Order 41 Rule 27 – Mutation – Declaratory Decree – Whether decree for possession in respect of land in question could have been granted in favour of respondents in view of their specific pleading that this land was in joint ownership and possession of appellants-defendants and respondents/plaintiffs – Whether findings of Courts below that parties were not in separate ownership and possession of land inherited by them under Will of Kirpa ram are dehors evidence on record – Plaintiffs’ suit preferred before Sub Judge, Ist Class, Court for, rendition of a decree, for, setting aside mutation attested, and, for rendition, of, a declaratory decree, vis-a-vis, theirs being declared owners in possession, vis-a-vis, the suit land, stood partly decreed, and, partly dismissed, in as much, as, the plaintiffs were declared, as, owners in possession of the old khasra No. 185 corresponding, to, new khasra Nos.412, 413, 416 and 417, and, were also declared to be owners of old khasra No. 307, corresponding to new khasra Nos.568, 569, 570, 571, 608, 609, 610, 616 and 618, situated in village Lakhroon, Tappa Muchhali, Tehsil Bangana, District Una, and, thereafter, the defendants were also directed, to, handover, the, vacant possession of old khasra No. 307, to, the plaintiffs – Plaintiffs being aggrieved therefrom instituted, a, Civil appeal, and, defendants also being aggrieved therefrom hence instituted a Civil appeal, before District Judge, Una, H.P., and, both afore appeals were decided, under, a common verdict, being recorded thereon, (i) wherethrough, plaintiffs’ appeal, was partly allowed, and, defendants’ cross appeal, stood dismissed, and, verdict recorded by trial Court was modified, in as much, as, (ii) plaintiffs become declared to be owners, in possession, of, land comprised and, entry to contrary, showing name, of, defendant, upon, aforementioned suit land, stood declared, to be null and void, and, defendants, are, further restrained, from, interfering in any manner, over, possession of plaintiffs, qua, suit land – Held, Entire lis is rested, upon, occurrence(s), in, revenue records, and, appertaining to estate, of, deceased testator hence bearing conformity therewith, and, therefrom it is to be obviously fathomed, visa- vis, reflected therein lands occurring above the road, or, below the road, (a) for, thereafter making hence determination(s), vis-a-vis, the defendant No.1, or, plaintiffs, holding apt empowerment, to, claim a valid right, of, theirs, hence becoming owners in possession thereof, and, also thereafter, for, determining whether apposite mutation attested, becoming validly attested – Plaintiffs, had laid a claim, to, old khasra on, anvil of theirs’ occurring below, the “Gair Mumkin Sadak”, and, hence with theirs being constituted legatees qua therewith, hence, the order of mutation, being enjoined, to be corrected – Meeting(s), of, credence thereto, for relevant purpose, is, befitting, as, reflections, cast therein, are not rebutted through adduction of potent evidence. – Claim of defendants, vis-avis, their holding right of ownership, vis-a-vis, old khasra does concomitantly, hence warrant rejection – Appeal Dismissed
JUDGMENT :
SURESHWAR THAKUR, J.
Review Petition No. 129 of 2019 & CMP(M) No. 105 of 2021
During the pendency of RSA No. 405 of 2004, before this Court, co-appellant No.1 (a) Kishni Devi, died on 29.11.2017. Though, some delay has occurred in the institution of the application at hand, however, given the good and sufficient cause made out in the application aforesaid, for, hence condoning the delay in, the, moving of the application before this Court, for begetting substitution of deceased co-appellant No. 1(a) by her LRs, hence the delay, if any, as stands occurred, stands condoned. Abatement, if any, stands set aside. Since the substitution of deceased co-appellant No.1 (a) by her LRs is imperative for a continuation of the lis, hence the application is allowed. Consequently, the LRs of deceased co-appellant No.1 (a) enumerated in paragraph 5 of the application, contents whereof stand supported by an affidavit are permitted to be substituted in her place. Application stands disposed of. Amended memo of parties be filed within one week. No notice need be issued to the newly impleaded LRs of deceased co-appellant No.1 (a), as, they stand represented by Mr. Surinder Saklani, Advocate. Requisite corrections be carried out by the Registry of this Court. Review petition is allowed, and, the judgment strived to be reviewed is nonest, for, the apposite non-substitution of the apposite deceased litigant by her apposite LRs during pendency, of, RSA No. 405 of 2004 a/w cross objections No. 499 of 2004.
RSA No. 405 of 2004 alongwith Cross objections No. 499 of 2004.
The plaintiffs’ suit bearing No. 91/87, preferred before the learned Sub Judge, Ist Class, Court No. II, Una, District Una, H.P., for, rendition of a decree, for, setting aside mutation attested, on, 24.10.1979, and, for rendition, of, a declaratory decree, vis-a-vis, theirs being declared owners in possession, vis-a-vis, the suit land, stood partly decreed, and, partly dismissed, in as much, as, the plaintiffs were declared, as, owners in possession of the old khasra No. 185 corresponding, to, new khasra Nos.412, 413, 416 and 417, and, were also declared to be owners of old khasra No. 307, corresponding to new khasra Nos.568, 569, 570, 571, 608, 609, 610, 616 and 618, situated in village Lakhroon, Tappa Muchhali, Tehsil Bangana, District Una, and, thereafter, the defendants were also directed, to, handover, the, vacant possession of old khasra No. 307, to, the plaintiffs.
2. The plaintiffs being aggrieved therefrom instituted, a, Civil appeal No. 39 of 2002, and, defendants also being aggrieved therefrom hence instituted a Civil appeal No. 41 of 2002, before the learned District Judge, Una, H.P., and, both the afore appeals were decided, under, a common verdict, being recorded thereon, on, 9.6.2004, (i) wherethrough, the plaintiffs’ appeal, was partly allowed, and, defendants’ cross appeal, stood dismissed, and, the verdict recorded by the learned trial Court was modified, in as much, as, (ii) the plaintiffs become declared to be owners, in possession, of, land comprised in old khasra No. 185 (new khasra No. 412,413,416 and 417), old khasra No. 307 (new khasra No. 568, 569,570,571,608,609,610,616,617 and 618, and, old khasra No. 273 (new khasra No. 601,603,647,655 and 656 situated in village Lakhroon, Tapa Muchhali, Tehsil Bangana, District Una, H.P., (iii) and, the entry to the contrary, showing the name, of, defendant, upon, the aforementioned suit land, stood declared, to be null and void, and, the defendants, are, further restrained, from, interfering in any manner, over, the possession of the plaintiffs, qua, the suit land.
3. The brief facts of the case are that the plaintiffs filed a suit for declaration to the effect that they are owners in possession of the land comprised in Khewat No. 29, Khatauni No. 31, Khasra Nos. 185 and 307 and half share in Khewat No. 61 min, Khatauni No. 191, khasra Nos. 273, 310 and 317 as per jamabandi for the year 1981-82 situated in village Lak
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