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2010 Supreme(HP) 1311
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Kuldip Singh, J.
Dharmi - Appellant
Versus
Jania and ors. - Respondents
RSA No. 285 of 2000
Decided On : 15-11-2010
For the Appellant :Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate.
For the Respondents:Mr. Ajay Kumar, Advocate.
Proof of ownership and possession is crucial in property disputes, and the legal status of settlement operations can be determined by referring to relevant land revenue acts and their interpretations.
Headnote:
Boundary Dispute - Property Dispute - Himachal Pradesh Land Revenue (Amendment and Validation) Act, 1996 - [Khasra No. 1468] - [Himachal Pradesh Land Revenue (Amendment and Validation) Act, 1996] - [Summary: The court discussed the ownership and possession of the suit land, the exchange of Khasra numbers, and the settlement operations carried out earlier. The court also referred to the Himachal Pradesh Land Revenue (Amendment and Validation) Act, 1996, which was challenged in the Supreme Court and upheld, to determine the legal status of the settlement operations. The court found that the appellant proved ownership and possession of the suit land, while the respondents failed to prove their ownership and possession. This influenced the court's decision to set aside the lower Appellate Court's judgment and restore the trial court's judgment.]
Fact of the Case:
The appellant filed a suit for permanent prohibitory injunction against the respondents in respect of land comprised in Khasra No. 1468, claiming ownership and possession. The respondents contested the suit, claiming ownership and possession of the same land.
Finding of the Court:
The court found that the appellant proved ownership and possession of the suit land, while the respondents failed to prove their ownership and possession.
Issues: Ownership and possession of the suit land, validity of settlement operations, and the applicability of the Himachal Pradesh Land Revenue (Amendment and Validation) Act, 1996.
Ratio Decidendi: The appellant's proof of ownership and possession, the failure of the respondents to prove their ownership and possession, and the legal status of the settlement operations under the Himachal Pradesh Land Revenue (Amendment and Validation) Act, 1996 influenced the court's decision.
Final Decision: The court set aside the lower Appellate Court's judgment and restored the trial court's judgment.
JUDGMENT :
Kuldip Singh , J. (Oral)
1. This appeal is directed against the judgment and decree, dated 20.5.2000, passed by the learned Additional District Judge, Circuit Court at Rohru in Civil Appeal No. 1-S/13 of 1999 reversing the judgment and decree, dated 1.12.1998 passed by the learned Sub Judge 1st Class, Court No.3, Addl. Charge Court No.2, Rohru in Civil Suit No. 109-1 of 1995 decreeing the suit of the appellant.
2. The facts, in brief, are that the appellant had filed a suit for permanent prohibitory injunction against the respondents in respect of land comprised in Khasra No. 1468, measuring 0-04-35 hecatres, situated in Chak Karalash, Tehsil Rohru, District Shimla, H.P. (for short, the ‘suit land’). The further case of the appellant is that earlier the suit land was owned and possessed by Budhu and Gokhari, parents of the appellant. On their death, the appellant became owner. The respondents have no right, title or interest over the suit land. The respondents have threatened to oust the plaintiff from the suit land. In these circumstances, the suit was filed and a prayer for permanent prohibitory injunction was made against the respondents.
3. The suit was contested by the respondents by filing written statement. It has been pleaded that the appellant is not owner of the suit land. The entries showing him owner of the suit land are wrong, illegal and without jurisdiction. The attestation of mutation of inheritance in favour of the appellant is also wrong. The appellant has no right to file the suit on the basis of revenue entries, which are wrong.
4. The further case of the respondents is that respondent No.1 exchanged Khasra No. 325 with one Gita Ram and during settlement, Khasra No. 325 was divided into Khasra Nos. 1467, 1469, 1469/1 and 1471. Khasra No. 515/324 does not figure in the old musabi. The musabi prepared during recent settlement is wrong. The respondent No.1 claimed himself to be the owner in possession of the suit land. In the alternative, the ownership by way of adverse possession was also claimed. The plea of res judicata was raised. The preliminary objections of lack of cause of action, non-joinder of necessary parties, locus-standi and maintainability were also raised. The appellant filed replication and reiterated the stand taken by him in the plaint. On the pleadings of the parties, following issues were framed:-
1. Whether the plaintiff is owner in possession over the suit land, as alleged? OPP.
2. Whether the defendant interfered with the possession of the plaintiff, as alleged? OPP
3. Whether the suit is not maintainable, as alleged? OPD
4. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD
5. Whether the plaintiff is estopped to file the present suit, as alleged? OPD.
6. Relief.
5. The issues No. 1 and 2 were answered in affirmative, issues No. 3, 4 and 5 in negative and the suit was decreed by learned trial court on 1.12.1998. In appeal, the learned Additional District Judge allowed the application of the respondents for leading additional evidence and had taken on record some documents by way of additional evidence and the appeal was allowed on 20.5.2000 and the suit was dismissed. Hence, the second appeal, which has been admitted on following substantial questions of law:-
1. Whether there are no legal and valid grounds to allow application under order-41, rule-27 CPC by the Ld. Lower Appellate Court and this has caused injustice to the appellant.
2. Whether lower appellate court has failed to exercise jurisdiction in accordance with law due to non-compliance of the provisions as contained in High Court Rules and Orders whereby there being boundary dispute a Local Commissioner was required to be appointed.
3. Whether the suit having been filed on the basis of entries in revenue record prepared during the current settlement could not be dismissed and the same could be decided with the aid of old as well as new revenue record.
6. I have heard the learned counsel for the
