Smt. Revti Devi vs Bala Ram, Nand Lal and Shri Jindu Ram

Kuldip Singh, Judge

This appeal has been directed against the judgement, decree dated 19.1.2001 passed by learned Additional District Judge, Mandi in Civil Appeal No. 40/2000 affirming the judgement and decree dated 22.6.2000 passed by learned Sub Judge Ist Class, Karsog in Civil Suit No. 57 of 1998. The facts in brief are that appellant had filed a suit for declaration and injunction regarding land comprised in khasra No. 20, measuring 3-3-7 big has situated in Mohal Behal, Tehsil Karsog. It has been alleged that suit land has been recorded in the ownership and possession of the parties in the revenue record. The further case of the appellant is that she only purchased the suit land from Jindu proforma respondent No. 3 in December 1970, but mutation No. 12 dated 25.12.1970 has been wrongly attested in the name of respondents No. 1 and 2 also. The appellant paid the total sale consideration to Jindu. The respondents No. 1 and 2 are not in possession of the suit land and revenue entries showing respondents No.1 and 2 as owners to the extent of 2/3rd share are wrong, illegal and are liable to be declared as null and void. The respondents No. 1 and 2 on the basis of wrong entries are threatening to interfere in the peaceful possession of the appellant. It has been alleged that proforma respondents have been recorded as co-sharers in the suit land. They are not owners of the suit land and therefore, they have also been impleaded in the suit but no relief has been prayed against them. On these allegations, the suit was filed.

The suit was contested by respondents No. 1 and 2 by filing written statement. In the written statement, preliminary objections of maintainability, non-joinder of necessary parties, locus standi, limitation and cause of action have been taken. On merits, it has been stated that suit land was purchased by the appellant and respondents No. 1 and 2 jointly from Jindu in December 1970 and mutation to this effect was attested. The sale consideration was also paid jointly by the appellant and respondents No. 1 and 2. The appellants and respondents No. 1 and 2 are joint owners in possession of the suit land. The claim of the appellant was denied and prayer has been made for dismissal of the suit.

The replication was filed in which appellant reiterated her case. On the pleadings of the parties the following issues were framed:-

Whether the plaintiff is sole owner of suit land comprised under khata khatauni No. 17min/22, khasra No.20 measuring 3-3-7 bighas, situated in Muhal Behal, Karsog as prayed? -OPP

Whether revenue entries showing defendants 1 and 2 owner to the extent of 2/3rd share are wrong, null and void? -OPP.

In case issues No. 1 and 2 are proved in affirmative, whether the plaintiff is entitled to the relief of injunction as prayed? -OPP.

Whether the suit is not maintainable in the present form? -OPD.

Whether the suit is bad for non-joinder and mis joinder of necessary parties? -OPD.

Whether the plaintiff has no locus-standi to file the suit? -OPD.

Whether the suit is time barred? -OPD.

Whether the plaintiff has no enforceable cause of action? -OPD.

Relief.

Issues No. 1 to 3, 5 were answered in negative, issues No. 4, 6, 7 and 8 in affirmative and the suit was dismissed on 22.6.2000. The appeal filed by the appellant was dismissed by the leaned Additional District Judge on 19.1.2001, hence second appeal, which has been admitted on the following substantial question of law:-

Whether the courts below have mis-read and misconstrued the contents of Rapat Rojnamcha Ex. DW 4/A and the mutation Ex. PW 1/B (sic) without considering the effect of the Rojnamcha having been written by a person other than the Patwari and the Mutation having been attested on a holiday?

I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that two courts below have misconstrued the evidence, the suit land was purchased only by the appellant from Jindu and only appellant is in possession of the suit land. The mutation has been wrongly attested showing respondents No. 1 and 2 also as owners in possession of the suit land alongwith the appellant. The mutation has been attested on 25.12.1970 on a public holiday which shows that mutation has been wrongly attested. The learned counsel for the respondents has supported the impugned judgement. He has submitted that two courts below have recorded concurrent findings of facts. The evidence has been appreciated by the two courts below. In second appeal, re-appreciation of evidence is not permissible. He has prayed for dismissal of the appeal.

The appellant has filed the suit for declaration and injunction on the plea that only she has purchased the suit land from Jindu on payment of Rs.1800/- and only she is in possession of the suit land. The mutation dated 25.12.1970 Ex. DW 1/B is wrong, illegal and does not reflect the true position. Ex. DW 4/A is copy of Rapat Rojnamcha dated 28.11.1970 indicating that Revti Devi had reported that Bala Ram, Nand Lal and Revti Devi have purchased khasra No. 20 measuring 3-3-6 bighas for a sale consideration of Rs.1200/- out of which Rs.100/- has been paid and possession has been delivered. Ex. DW 1/B is mutation No. 12 dated 25.121.1970. It has been attested in favour of appellant and respondents No. 1 and 2. The mutation Ex. DW 1/B indicates that suit land has been sold by Jindu in favour of appellant and respondents No. 1 and 2 for a sale consideration of Rs. 1200/- and possession has been delivered in equal share.

PW 1 Revti Devi in her statement has stated that she has purchased the suit land for a consideration of RS.1800/-. She has also stated that the day on which the mutation was attested, she was present on the spot, her statement was record. The mutation was attested by the revenue officer, Jindu also accompanied her and his statement was also recorded. Jindu also singed the proceedings.

PW 3 Jindu Ram vendor has stated that at the time of attestation of mutation, husband of appellant and Dhani Ram were present. The Tehsildar also came on the spot, who recorded his statement and obtained his signatures. The statement was read over to him by the Tehsildar which he accepted correct and thereafter he signed the statement and got attested the mutation.

The appellant in her statement has stated that she purchased the suit land for a consideration of Rs. 1800/-, but the mutation and Rapat Rojnamcha indicate that sale consideration was settled Rs. 1200/- only. This shows that appellant is not stating correctly regarding the sale consideration. Jindu vendor has virtually proved the case of respondents No. 1 and 2 by stating that mutation was attested after recording his statement. The contention of learned counsel for the appellant is that mutation was attested on a holiday, which shows that mutation was wrongly attested has no force. It has been proved on record that mutation was attested in presence of the parties and others. Therefore, merely the mutation was attested on a holiday cannot be said that mutation was wrong and illegal. Sub-section (2) of section 25 of H.P. Land Revenue Act, 1953 provides that if a proceeding has been taken by a revenue officer on a holiday then on that account alone that proceeding will not be wrong. There is no merit in the appeal. The substantial question of law noticed above is decided against the appellant.

No other point has been urged. In view of above discussion, appeal fails and is accordingly dismissed with no order as to costs.