IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 269 of 1998 Judgment reserved on:- 18.11.2008 Date of Decision:- __5.12.2008 __________________________________________________________ Kuldip Raj & others ….Appellants. Versus Sat Pal ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Appellants: Shri Bhupinder Gupta, Sr. Advocate with Shri Neeraj Gupta, Advocate. For the Respondent: Pandit Om Parkash, Advocate __________________________________________________________ Dev Darshan Sud, J. This is the plaintiffs’ appeal against the judgment of the two Courts below dismissing the suit filed praying a decree of declaration that the plaintiffs are in joint possession of the suit land comprised Khasra No. 1845, measuring 65-41 Sq. metres as entered in Missal Hakiyat Bandobast Jadid Sani for the year 1986-87, situated in Ward No. 8, Up Mohal Swarag Ashram, Nurpur. The averments made by the plaintiffs are that the suit land along with other land was owned and possessed by Billu and Thoiya, sons of Bahadur. Plaintiffs No. 1 to 4 were having 1/4th share, plaintiffs 5 to 12 1/2 share and the defendant 1/4th share. The plaintiffs thus claimed 3/4th share in the suit land. The pleading is that 1 Whether reports of Local Papers may be allowed to see the judgment? 2 the defendant has only 1/4th share and has no right to raise any construction etc. on the suit land till it is partitioned. The entries in the revenue record are contrary to the facts and are wrong. The plaintiffs claimed that the cause of action arose in their favour on 7.11.1990 when the defendant stopped the plaintiffs from raising any construction on the suit land. The suit has been contested by the defendant-respondent on a number of grounds. It is alleged that Munnu and Faquir sons of Thoiya had partitioned this land and this portion of the land which is the backyard of the defendant’s house is in his exclusive possession. During settlement proceedings this land was wrongly shown in the ownership of the State of Himachal Pradesh, whereafter he had filed a civil suit against the State and judgment Ext.D1 was passed in his favour declaring him to be absolute owner. 14 issues were framed by the learned trial Court (though numbered as 1 to 10). The learned trial Court held that on the basis of revenue record produced as Ext.P1, Ext.P2, Ext.P3, Ext. P4, Ext.P5, Ext.P6, Ext.P7, Ext.P8, Ext.P9, Ext.P10 and Ext.P11, all copies of Missal Hakiyat and the jamabandi of the previous years upto 1986-87 and 1977-78 respectively, the claim of the plaintiffs that there was conclusive proof that the land was ancestral was not established. The defendant’s plea that he was in possession as an exclusive owner for the last 33/34 years; during the settlement operation this land was mutated in favour of the State of H.P. and thereafter again on the suit filed by the defendant- respondent, his ownership was conclusively established was held proved. On consideration of the documentary evidence, the learned trial Court held that the revenue record was insufficient to establish the joint nature of the property as claimed by the plaintiffs. Merely because some land was joint between the parties did not plead to the conclusion that this parcel of land should also be presumed to have been joint between the parties. The Court holds that it was for the plaintiff to 3 have established by clear and cogent evidence that the entire suit land has been inherited from a common ancestor. One other significant fact noticed by the learned trial Court was that the plaintiff and defendant are next door neighbours. The plaintiffs never objected to the land being mutated in the name of the State of Himachal Pradesh. It was the defendant alone who instituted proceedings to have the revenue record corrected and to delete the name of State of Himachal Pradesh from the column of ownership with a declaration that the defendant is owner in possession of this land. This fact coupled with the other factors that the inheritance of the land from the common ancestor was not proved was sufficient for the trail Court to dismiss the suit of the plaintiff. In appeal, these findings have been reaffirmed by the learned Appellate Court. This appeal was admitted on 18.7.1998 on the following substantial questions of law:- 1. Whether it was incumbent for the plaintiffs-appellants to have challenged the decree Ext. D1 in which the plaintiffs-appellants were not party ? 2. Whether the Courts below have erroneously held the plaintiffs to be estopped to file the suit of the present nature? 3. Whether both the learned Courts below have failed to take into consideration the admissions of the defendant regarding the ancestral nature of the property ? Court such admissions be washed away on the basis of the revenue entries which were incorrectly made on the basis of the decree which was not binding on the plaintiffs- appellants? 4. Whether the revenue entries in the present case stood rebutted on the basis of the admissions of the defendant, could the erroneous reliance placed on them resulted in 4 wrong conclusion regarding the joint ownership and the rights of the parties ? 5. Whether the impugned judgment and decrees are vitiated on account of the misreading of the pleadings, oral and documentary evidence ? Questions No. 1 to 3 These questions are being taken up together for decision since they are inter-linked for determination of this appeal. It is undisputed that the suit land comprises Khasra No. 1845. Learned counsel appearing for the appellant submits that it was not open to the Courts below to have placed a reliance on judgment Ext.D1 delivered in the suit instituted by the respondent/defendant as it is not a judgment in rem and only the State was the defendant. Learned counsel submits that in this eventuality there was no need to have challenged this judgment as it does not determine their rights as the appellants were not parties to that suit. He places reliance on Missal Hakiyat and Jamabandis for the year 1986-87 and 1977-78. Only Ext.P1 relates to Khasra No. 1845 and the land is shown in possession of the State of Himachal Pradesh. Ext.P2 relates to Khasra Nos. 1799, 1843, 1844, 1846, Ext.P3 deals with Khasra No. 1841, Ext.P6 for Khasra No. 1842, Ext.P7 for Khasra No. 1840, 1841, 1823, 1825, Ext.P9 for Khasra No. 1795, 1796, 1797, Ext.P10 for Khasra No. 1802, 1803, 1804, 1805 and 1824. It is thus evidence that this revenue record does not relate to the suit land namely Khasra No. 1845. On reading these documents, it is thus apparent and evident that Ext.P1 in no manner establishes the case put forth by the plaintiffs rather supports the contention of defendant and there was no revenue record with respect to the suit land. Emphasis on Ext.P6 which is a Pedigree table does not in any manner establish that the land holdings of the parties are joint. 5 Learned counsel also submits that vide judgment in Civil Suit No. 39/84, 422/84 Ext.P5 between Atro Devi and others, successors in interest of Tara Chand, grandson of Billoo and Thoiya predecessor in interest of Fakir, and Phullan Devi and others, a declaratory decree was granted that the plaintiffs and defendant therein are joint owners of Khasra No. 1799, 1843, 1844, and 1846 measuring 320-71 Sq. meters and the shares of parties were declared and determined in that judgment. I am unable to accept that this also includes an adjudication of Khasra No. 1845 when the judgment itself is clear on the point of ownership of the parties excluding the suit land. I also find that the defendant in his written statement has averred in clear terms that they are next door neighbours and the time when the suit land was included in the ownership of the Government, the plaintiffs did not object obviously for the reason that they were not interested in the suit land as it was not in their ownership. Learned counsel then places a reliance on the statement of DW1 defendant/respondent to submit that the defendant himself has admitted that the land was joint. I am not persuaded to accept these submissions. Although the defendant has submitted that land was Jaddi (joint) but he explained that by Jaddi he meant that it was owned by him along with his father and not with any other person. There is nothing to establish that by this admission the land was joint qua the ancestors of the parties to this appeal and the plaintiffs are also co-owners. There is no merit in the submissions made by the learned counsel appearing for the appellant. All these questions are decided against the appellants. True, Ext.D1 is not a judgment in rem but the conduct of the plaintiffs in not challenging the vestment of the land in the State of H.P. and not taking any action shows their conduct of acquiescence in the ownership of the land being vested in a third party. There was nothing to stop them from 6 challenging this fact which they did not do so but the defendant being successful in his suit, they came forward to claim this land perhaps only on the basis that the defendant/respondent was successful and they would make the best use of this opportunity. Question No. 4 There is no evidence on record to show that revenue entries have been rebutted. As a matter of fact, the record establishes that the suit land has not been recorded to be joint between the parties. There is only one revenue entry Ext.P1 which shows the ownership of the State Government. Question No. 5 On question No.5, all that can be said is that even after the entire re-appreciation of the evidence, there is nothing on record to establish that the pleadings have been misinterpreted. This exercise having been taken despite the bar created under Section 100 of the Code of Civil Procedure that the findings of the Appellate Court cannot be challenged in the second appeal unless such findings are perverse. Thus, there is no merit in this appeal, which is accordingly dismissed. There shall be no order as to costs. December 5th, 2008 (Dev Darshan Sud) (ms) Judge