IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 254/2008 Reserved on: 27.5.2011 Decided on: 23.06.2011 ___________________________________________________ Lala Ram and others. …Appellants. Versus Jeet Ram. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Sanjeev Kuthiala, Advocate. For the Respondent : Mr. J.L. Bhardwaj, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 12.3.2008 rendered by the learned District Judge, Bilaspur in Civil Appeal No.76 of 2006. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent- plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) instituted a suit for declaration. According to the plaintiff, he and defendants are 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 residents of village Matnoh. The land measuring 0-3 biswas, comprised in Khasra No. 143, Khewat No. 3/3, Khatauni No.3 is situated in village Matnoh and house, kitchen and cowshed are existing on it, which are recorded in the names of defendants-appellants (hereinafter referred to as ‘defendants’ for convenience sake) in revenue papers. One Sh. Bajiru was the father of Shiv Ram, Mansha, Gambho and Lala. Mansha died and his property was given to Dina Nath son of Shiv Ram by way of “will” and defendants No.2 and 3, namely, Bansi and Amar Nath also got the property of Gambho by way of “will”. The father of the plaintiff, i.e. Shiv Ram got separated from his brothers and the property was partitioned, according to which, three Kothas (two rooms, kitchen and cowshed) were allotted to the father of the plaintiff, namely, Shiv Ram. Thereafter, Shiv Ram constructed house and kitchen after removing roof after 10 years, after the partition. 25 years back, plaintiff got the land alongwith house, cowshed etc. from his father. He became owner in possession of the suit property. Defendant No.1, Lala Ram, has also got his share at the time of partition. In the month of May, 2003, Patwari and Kanungo went on the spot and demarcated the land and it transpired that 3 the suit land was recorded in the name of defendants. It is in these circumstances, the present suit was filed. 3. Written statement was filed on behalf of the defendants. According to them, father of the plaintiff separated from his brothers in all respects and since then the houses and land of the parties was being enjoyed by them separately and there was no question of claiming adverse possession and during consolidation proceedings, the suit land fell in exclusive ownership and possession of the defendants. According to the defendants, land comprised in Khasra No. 143, measuring 1 bigha was owned and possessed by them. The houses existing on khasra No. 143 belongs to defendants. However, it was admitted that defendants No. 2 and 3, namely, Bansi and Amar Nath got the property of deceased Gambho by way of “will”. The family of plaintiff and defendants separated in 1985-86. The houses of Shiv Ram and Jeet Ram were given to them in consolidation proceedings and land beneath the same was also allotted to the parties as per their possession and construction raised in the total land. According to them, patwari and Kanungo in connivance with the plaintiff made a false report that the houses existing on Khasra No. 143 belongs to plaintiff. 4 Replication was filed by the plaintiff. Issues were framed by the trail court on 7.4.2004. The trial court dismissed the suit on 11.7.2006. Plaintiff preferred an appeal before the District Judge, Bilaspur. He allowed the same on 12.3.2008. Hence, the present Regular Second Appeal against the judgment and decree dated 12.3.2008. It was admitted on 24.11.2009 on the following substantial questions of law: 1. “Whether the learned first appellate court has misread and mis-appreciated the pleadings and evidence, both oral and documents, especially the statements of PWs 1 to 5, DWs 1 to 3, Ex.PW-4/A, Ex.PW-4/D, Ex.DW-2/A to Ex.DW-2/E, Ex.D1 to Ex.D-25 as also Ex.RW-1/A to RW-1/E and as such the findings are bad in law? 2. Whether the revenue entries made during the course of the consolidation proceedings and attaining finality could be challenged before the civil court, and reach a contrary conclusion against the revenue records, despite the specific bar to the civil court jurisdiction under section 57 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971? 3. Whether the relief of permanent prohibitory injunction can be given to a person against the actual owner in possession, contrary to the revenue record, proof and the pleadings?” 4. Mr. Sanjeev Kuthiala has supported the judgment and decree dated 11.7.2006 passed by the Civil Judge (Junior Division), Bilaspur. 5 5. Mr. J.L. Bhardwaj has supported the judgment and decree dated 12.3.2008 passed by the District Judge, Bilaspur. 6. I have heard the learned counsel for the parties and have perused the records carefully. 7. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 8. Plaintiff has appeared as PW-2. According to him, his father Shiv Ram separated from his brothers 60 years back and 3 kothas came in the share of his father, which were reconstructed by his father. When Patwari and Kanungo came on the spot last year, they told him that these houses alongwith kitchen and suit land are on the land of Lala Ram. His statement was also recorded vide Ex.PW-2/A. His electricity meter was installed in the house for the last 30-35 years, which was in the name of his brother. Consolidation proceedings took place in their village and the defendants were not in possession of the suit land. In cross-examination, he has deposed that Girdawari of the land was conducted but Patwari rarely visited the suit land and no Girdawari took place before him. He 6 has not given any written application to Patwari or Kanungo regarding change of name in revenue record nor his father presented any such application before the concerned authority. He has also deposed that he has not given any application for correction of Girdwari and admitted that during consolidation the suit land was given to Lala Ram. 9. PW-4 Karam Dass, Kanungo, deposed that he conducted the demarcation of Khasra No. 143 on the application of Lala Ram, on which plaintiff’s house alongwith kitchen and cow-shed was found on the suit land. The report was not accepted by Sant Ram and Jeet Ram. Statement of Lala Ram Ex.PW-4/A was recorded. Report Ex.PW-4/C was correct as per original record. Thereafter, Patwari prepared tatima and he signed the same. According to him, base (Tali) of the house is in the name of Lala Ram. In cross- examination, he deposed that he has not recorded any statement regarding fixing of permanent points before demarcation and self stated that he told the parties orally about it. He admitted that if the land of one party is found in the name of other party, then Missal is prepared for sending to concerned officer for correction. According to him, no Missal was prepared in this case. 7 Jeet Ram at the time of demarcation told him that his house is on his own land and not on the land of Lala Ram. 10. PW-5 Vikas has prepared map Ex.PW-5/A. According to PW-6 Durga Ram, the disputed building was in the possession of Jeet Ram for the last 25 years and he was owner of the house. 11. Gurnam Singh has appeared as RW-1 in rebuttal. He has produced copy of bills Ex.RW-1/A to Ex.RW-1/E. 12. The defendants have produced 3 witnesses. DW-1 Surjan Singh has deposed that he was Consolidation Officer during consolidation proceedings. 13. DW-2 Rameshwar Gautam was Patwari. He has produced the record Ex.DW-2/A to Ex.DW-2/E. He deposed that the documents were prepared after verifying the position on the spot. In his cross- examination, he stated that khasra Nos. 389, 390, 394 and 395 are old khasra Nos. of khasra No. 143. 14. DW-3 Amar Nath has testified that the house existing on 3 biswas of land belongs to defendants. It was built 16 years back after consolidation. Neither the plaintiff nor his father was in possession of the disputed house. According to him, no electricity meter of brother 8 of the plaintiff has been installed in the house and the plaintiff has filed a false suit in connivance with Kanungo. However, he has admitted that Patwari and Kanungo demarcated the land in May, 2003. He has admitted that his father gave application for demarcation. He denied that plaintiff was owner of the suit land and house existing on it. 15. The plaintiff had moved an application under order 41 rule 27 of the Code of Civil Procedure for leading additional evidence. The same was allowed by the first Appellate Court on 10.12.2007 and consequently copy of jamabandi for the year 1981-82 Ex.PA and Ex.PB copy of jamabandi for the year 1963- 64 were tendered. 16. The suit property was demarcated vide Ex.PW-4/C. Plaintiff had not moved any application for fresh demarcation as per Ex.PW-2/A. He has admitted that the electricity meter was in the name of his brother. According to him, Sant Ram was regularly paying the bill but statement of Sant Ram was not recorded. Plaintiff has not produced any person from the locality to prove the position. The learned first appellate court has reversed the findings of the trial court on the basis of jamabandi for the year 1981-82 Ex.PA and for the 9 year 1963-64 Ex.PB. According to jamabandi for the year 1963-64, Khasra No. 390 measuring 0-4 biswas (Gair Mumkin Abadi) was in possession of Shiv Ram as co-sharer. The same entry was recorded in Ex.PA for the year 1981-82. However, it is evident from document Ex.18 copy of Intkal, Ex.P-19 copy of Missal Haquiat for the year 1985-86 that the defendants have been recorded in the column of ownership in khasra No. 389, 390, 394 and 395. These khasra numbers are old khasra numbers of newly carved out khasra No. 143. These entries were recorded in the copy of jamabandi for the year 1992-93. Ex.D-21 is the copy of jamabandi for the year 1997-98 regarding khasra No. 143. In Ex.D-22, copy of jamabandi for the year 1985-86, Ex.D-24, copy of Khasra Girdawari from 1994 to 1998 and Ex.D-25, copy of Khasra Girdawari for the year 1997-98, the same entries have been recorded. In Ex.DW-2/A, i.e. copy of Ishtemal Mauza and Ex.DW- 2/B copy of Gathwar Mauza, the defendants have been recorded as owners of the suit land. In Ex.DW-2/E copy of Khatauni Paimaish, Khasra Nos. 389, 390, 394 and 395 have been assigned new Khasra No. 143 and has been recorded in the name of defendants. Case of the defendants is that they have become owner of the 10 suit land after consolidation proceedings. Consolidation Officer has appeared as DW-1 and the Patwari, who has prepared Ex.PW-2/A to Ex.DW-2/E after verifying the spot, has appeared as DW-2. The first appellate court has erred in law by reversing the findings recorded by the trial court on correct appreciation of the oral as well as documentary evidence, more particularly, revenue entries whereby the defendants have been recorded as owners in possession. The first appellate court has reversed the findings recorded by the trial court, as discussed hereinabove, on the basis of Ex.PA and Ex.PB. The first appellate court has not at all discussed the revenue entries made in favour of the defendants, as discussed hereinabove, including copies of Istemal, Gathwar, Missal Haquiat and khasra Girdawari. 17. Their Lordships of Hon’ble Supreme Court in Jagdish Singh Versus Madhuri Devi, (2008) 10 SCC, 497 have held that the following requisites should normally be present before an appellate court to reverses a finding of the trial court: i) it applies its mind to reasons given by the trial court; ii) it has no advantage of seeing and hearing the witnesses; and 11 iii) it records cogent and convincing reasons for disagreeing with the trial court. 18. Their Lordships have further held as under (paras 28 and 37):- “At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court. As already adverted earlier, the High Court has 'virtually' reached a conclusion without recording reasons in support of such conclusion. When the Court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial 12 Court or conclusions arrived at were not in consonance with law.” 19. Accordingly, in view of the observations and discussions made hereinabove, the Regular Second Appeal is allowed. The judgment and decree dated 12.3.2008 of the first appellate court is reversed and that of the trial court dated 11.7.2006 is restored. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 23.06.2011 *awasthi*