Chandnu vs State of Himachal Pradesh

Surinder Sarup, J.—This appeal is directed against the judgments and decree of both the Courts below whereby the suit of the Plaintiff-Appellants has been partially decreed. The judgment and decree of the trial Court i.e. the Court of Mr. R.K. Sharma, Sub Judge (II), Paonta Sahib, District Sirmour is dated 8th February, 1991. The judgment and decree of the first appellate Court i.e. the Court of Mr. J.S. Dhaliwal, District Judge, Sirmour at Nahan is dated 23rd September 1991.

Briefly the facts are that the Plaintiffs-Appellants had filed a suit for declaration and mandatory injunction to the effect that the Plaintiffs are the owners in possession of the suit land fully described in the plaint and fully detailed in the impugned judgments of the two Courts below to the extent of 10 biswas of land under houses, kitchen and courtyard situated in Mauza Bokala-Sub Tehsil Kamrau, District Sirmour and that the entries in the revenue record showing the Plaintiffs in possession of 5 biswas of land as Gair-mumkin Abadi of Khasra No. 867/363 are incorrect and contrary to facts and the location of the said abadi shown in Aks Shajra tatima towards the south is also incorrect and the same be ordered to be corrected through a mandatory injunction. It was pleaded that the Plaintiffs are owners in possession of the suit land for the last more than 100 years and prior to them their predecessor-in-interest have been using the suit land without any hindrance. The Defendant through its official shave wrongly incorporated the area in ownership and possession of the Plaintiffs only to the extent of 5 biswas whereas the total area in ownership and possession of the Plaintiffs is 10 biswas. The Defendant through its official shave wrongly shown the location of the suit land in the revenue record i.e. towards southern side whereas it ought to have been shown in the northern side of the aforesaid khasra number. Hence the suit.

In the written statement filed by the Defendant-Respondent, the suit was resisted by pleading that it is not maintainable; that the civil Court has no jurisdiction; and that the suit is bad for want of notice u/s 80 of the Code of Civil procedure. On merits it was pleaded that khasra No. 865/363 was a shamlat patti and during the vestment of the land in the State of Himachal Pradesh under the provisions of the Himachal Pradesh Village Common land Vesting and Utilization Act, 1974, different persons were found having constructed houses existing in Khasra No. 363 which were exempted from its vested in the State free from all encumbrances. The Plaintiff''s predecessor-in-interest were found in possession of only 5 biswas of land in khasra No. 363 and accordingly, the land under their possession was exempted from its vestment and entries made in their favour in the revenue record, as per their possession on the spot. It was pleaded that the Plaintiffs have their abadi only on 5 biswas of land. It was denied that the Plaintiffs are in possession of 10 biswas of the land.

On the pleadings of the parties, the following issues were framed:

Whether the Plaintiffs are owners in possession of the suit land to the extent of 10 biswas in Khasra No. 865/363 as alleged?OPP

1-A. Whether the Plaintiffs are owner in possession of the suit land to the extent of 10 biswas in Khasra No. 867/363 as alleged?OPP

Whether the Plaintiffs are entitled for the relief of mandatory injunction as alleged? OPP

Whether the suit is not maintainable as alleged? OPD

Whether the suit is barred by limitation? OPD

Relief.

The learned trial Court had taken up together issues No. 1-A and 2 and found that the Plaintiffs are owners in possession of the suit land to the extent of 5 biswas in Khasra No. 865/363. It was also found that from the admission made by the Defendant in the written statement it is established that abadi of the Plaintiffs on khasra No. 865/ 363 measuring 5 biswas is on the northern side and not on the southern side Issue No. 2 was also answered in favour of the Plaintiffs. Issues Nos. 3 and 4 were found against the Defendants as the same were not pressed at the time of arguments. Consequently, the suit was partially decreed to the effect that the Plaintiffs are owners in possession of 5 biswas of land and not 10 biswas.

Both the Plaintiffs-Appellants as well as the State were dissatisfied with the judgment and decree of the trial Court. Whereas the Appellants filed an appeal, the State filed the cross-objections. Admittedly, both have been dismissed by the impugned judgment of the learned lower appellate Court which agreed with the findings of the learned trial Court on various issues.

I have heard the learned Counsel for the parties at length and have also examined the record. The findings of both the Courts that the Plaintiffs-Appellants are found to be in possession to the extent of 5 biswas of land right from the time of their predecessor-in-interest is based on the entries in the revenue record. However, from the statement of P.W.3 Ashok Kumar it is clear that the Plaintiffs are in possession of 10 biswas of land at the spot. In this connection it may be mentioned here that the revenue record is not to be all and end all of the rights of a party. It merely depicts the position on the spot so as to enable the land revenue authorities to realise land revenue. In a given case, they can be proved to be wrong as has been done in the present case.

On this aspect of the case apart from the statement of PW3, referred to above, there is statement of the Patwari examined on behalf of the Defendant as D.W.1. In his cross-examination he has categorically stated that at the spot there is 10 biswas of land in possession of the Plaintiffs-Appellants which contains structure having 12 rooms, courtyard and a kitchen. This admission in the cross-examination has not been noticed either by the learned trial Court or the first appellate Court. Had they noticed it, their decision possibly would have been different and the suit of the Plaintiffs-Appellants would have been decreed in toto.

In so far as the findings of the two Courts below regarding the Plaintiffs being owners in possession of 5 biswas of the suit land, the State has rightly not challenged the same as no appeal has been filed against the judgment and decree of the Courts below. It has also been conceded by the lower appellate Court that the suit land is not on the southern side but on the northern side. This finding is, therefore, affirmed.

For the reasons recorded above, this appeal succeeds and the same is accepted. The judgments and decrees of both the Courts below are reversed and the suit of the Plaintiffs-Appellants is decreed in toto and they are declared to be in possession of 10 biswas of land fully described in the plaint. In circumstances of the case, the parties are left to bear their own costs.