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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sureshwar Thakur, J.
Tek Chand S/o Sh. Moti Ram, S/o Sh. Ganga - Appellant
Versus
Sharda Dutt Son of Sh. Dila Ram S/o Ganga and Ors. – Respondents
Regular Second Appeal No. 478 of 2008
Decided On : 10-09-2021
Civil Suit - Plaintiffs are also joint owners in possession of suit land qua share which their predecessor-in-interest had inherited vide mutation and which has been wrongly recorded in exclusive deceased while preparing jamabandi for year1981-82 and repeated in 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 allotment of land to them during consolidation of holdings which their predecessor-in-interests had inherited from deceased and wrongly allotted to defendant and their joint possession thereof be confirmed and defendant be restrained from interfering therein, and a decree to above effect with costs of suit, may kindly be passed in favour of plaintiffs and against defendant, and/or any other relief, warranted by facts and circumstances of case, under consideration, be granted and justice be done - Whether both Courts below have misread misconstrued and misinterpreted the oral as well as documentary evidence of parties especially documents order passed by Assistant Collector, First Grade, document application for correction of revenue entries which has materially prejudiced case of appellant - Whether plaintiffs are estopped to file present suit by their own act and conduct as they have knowledge about revenue entries when filed application for correction of revenue entries which was dismissed – Held, principle became evidently breached, by consolidation staff concerned, as they visibly flouted, mandate of a valid order of mutation , made in year 1977 - Therefore, effect of afore invalid, almost complete ouster of plaintiffs from suit land, does also obviously, make relief, of injunction, as claimed alongwith declaratory relief (supra) to become construable, as, relief of co-possession over the suit land, of plaintiffs, alongwith contesting defendant - Effect of afore made inference, is that, extant suit, does not stricto sensu become, a, simplicitor suit, for declaration, for quashing revenue entries concerned, but also is a suit for co-possession of plaintiffs, alongwith contesting defendant from year 1981-82, and lasting upto the conclusion of illegal consolidation operation(s), as became concluded, in year, 1989-90 - Moreover, it is also construable to be coequal to relief of co-possession, even if, a dis-affirmative, rather became recorded, upon, by Collector concerned - Further, consequent effect of afore inference, is that plaintiffs’ suit for declaration, as well as for afore relief of injunction, tantamount(s) to theirs, validly claiming co-possession alongwith contesting defendants, over suit khasra numbers, and, hence suit was to be filed within 12 years, from 1989-90 or from 1990 - Since, suit has been filed within 12 years from afore period of time, therefore, it is not barred by vice of voidness nor is mis-constituted, rather is maintainable, before Judge - Therefore, substantial questions of law are decided in favour of plaintiffs, and, against defendant – Appeal dismissed.
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), vis-a-vis, the suit khasra number, and, against the defendants:
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 there against 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 paper book, substantial questions of law whereof become extracted hereinafter:
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 1981-82, rather, made evident departures from the afore order, of, mutation bearing No.424. Though, the defendant-appellant 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 o
Erroneous revenue entries are void ab initio, preserving joint possession rights among co-owners until formal partition occurs.
Failure to admit crucial evidence resulted in prejudice, necessitating remand for reconsideration.
Second appeal under Section 100 CPC requires substantial question of law; findings on title and possession upheld where no perversity shown.
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