IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 89/2005 Reserved on: 21.12.2010 Decided on:9.3.2011 _____________________________________________ Lachhman Dass and others. …Appellants. Versus Pamma Ram and others …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellants : Mr. B.K. Malhotra, Advocate. For the Respondents: Mr. G.R. Palsara, Advocate for respondents for respondents No. 1 to 13, 15 to 17 and 19 to 24. _____________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 2.11.2004 rendered by the learned Presiding Officer, Fast Track Court, Mandi in Civil Appeal No.30/99, 161/2004. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) filed a suit for declaration and consequential relief before the 1 Whether reporters of the local papers may be allowed to see the judgment? No 2 learned Sub Judge 1st Class, Mandi. According to the plaintiffs, land detailed in para 1 (A) of the plaint is shown to be in the ownership and possession of the plaintiffs No. 1, 2, 3, 13 and 14, defendants No. 1 to 6 and one Smt. Himu (since deceased), whose legal representatives are plaintiffs No. 4 to 12. Land detailed in para 1 (B) and 1 (C) of the plaint is owned and possessed by the plaintiffs No. 1, 14, defendants No. 1 to 6 and one Chanan (now deceased), whose legal representatives are plaintiffs No. 2 to 13, out of whom, the plaintiffs No. 10 to 12 are minors. Land detailed in para 2 (A) of the plaint is shown to be owned and possessed by the plaintiffs No. 1, 14, 2, 3, 13, defendants No. 1 to 6 and Smt. Himu (now deceased) whose legal heirs are plaintiffs No. 4 to 12 and defendants No. 7 to 10. Land detailed in para 2 (B) of the plaint is shown to be owned and possessed by the plaintiffs No. 1, 2, 3, 13 and Himu (now deceased), whose legal representatives are plaintiffs No. 4 to 12, defendants No. 1 to 10 and defendant No.11, which land has been donated to defendant No.11 by defendant No.1. Similarly, land detailed in para 2 (C) of the plaint is shown to be owned and possessed by the plaintiffs No. 1, 14, 2, 3, 13, defendants No. 1, 5, 7 to 10 and Smt. Himu (now deceased), whose legal representatives are plaintiffs No. 4 to 12. Plaintiffs No. 10 to 3 12 are minors, who are living under the care and guardianship of their father. Prior to settlement, there were three Mohals, namely, Barkawali, Ragehui and Bharar, however, during the settlement, Mohal Ragehui was merged in Mohal Bharar and thus Mohals Ragehui and Bharar formed one Mohal, i.e. Mohal Bharar. Land detailed in para 1 (A) of the plaint in Mohal Bharar was earlier in Mohal Ragehui, as per copy of jamabandi for the year 1974-75. Late Sh. Molak, father of plaintiff No.1 and his brother Dhari, instituted suit No. 241 on 25.8.1958 against Dagu, Dhani Ram, Man Dass, Bhikham, Prabhu Ram, Maghi and defendant No.1, which was decreed, as per compromise between the parties and it was adjudicated that Molak and Dhari are owners in possession of half share in the land in Mohal Ragehui and Barkawali and they are owners in possession of 6-15-0 bighas in Mohal Bharar. Molak Ram was succeeded by his two sons Souju, plaintiff No.1 and Chanan, whose legal representatives are plaintiffs No. 2 to 13, whereas Dhari was succeeded by his wife Ram Kali, who has died but she has gifted her entire property in favour of plaintiff No.14. Defendants No. 1 to 10 are the legal representatives of Dagu Ram and Maghu and they also represent the estate of Smt. Bindoo (now deceased), Smt. Murtu, Chamari and Shayami. On the basis 4 of the compromise, plaintiffs remained owners in possession of half share in Mohal Ragehui and Bharkawali and they remained owner in possession of 6-15-0 bighas of land in Mohal Bharar. However, respondents-defendants (hereinafter referred to as ‘defendants’ for convenience sake) on the basis of wrong revenue entry started interference in the possession of the plaintiffs, which led to filing of suit for permanent prohibitory injunction on 18.5.1976. Plaintiff No.1 was forcibly evicted from two fields of about 0-10-0 bighas on 16.9.1982 and the suit was withdrawn. Defendants preferred revision before this Court. The revision was dismissed and the suit was allowed to be withdrawn, subject to payment of costs of Rs. 300/-. According to the plaintiffs, defendants are causing unlawful interference in their possession. It is in these circumstances that the suit was filed seeking declaration that they are owners in possession to the extent of half share in the land detailed in paras 1 (A) and 2 of the plaint and owners in possession to the extent of 6-15-0 bighas of the land in para 1 (B) of the plaint and in the alternative for joint possession. 3. The suit was contested by defendants No.1 to 6 on the grounds of limitation, cause of action, maintainability etc. On merits, it is stated that Maghi has gifted her entire 5 property in the suit land in favour of defendants No.1 to 6, while Dagu Ram gifted his land situated in Mohal Barkawali in favour of defendants No. 7 to 10 and he sold his entire land situated in Mohal Ragehui and Bharar in favour of defendants No. 1 to 6. It is denied that any compromise was effected between the parties in the previous suit. He further stated that in case compromise is proved even then it was never acted upon and the plaintiffs remained owners in possession to the extent of ¼ share only while defendants are owners in possession to the extent of ¾ share. According to defendants, their possession is absolute, continuous and hostile for the last more than 40 years to the knowledge of plaintiffs and thus they have acquired valid title over the suit land. It was denied that the plaintiffs had been evicted from two fields on 16.9.1982. Defendants No. 7 to 10 also contested the suit of the plaintiffs on the grounds of limitation, cause of action and maintainability. It is stated that defendants No. 7 to 10 never entered into compromise with the plaintiffs and they were not party in the suit filed by the plaintiffs. Defendant No. 11 has also contested the suit. According to him, land comprising Khasra No. 190 and 191 has been gifted by defendants No.1 to 4 and 6 vide mutation Nos. 40 and 43, respectively in favour of the Medical 6 Department of Himachal Pradesh, which gift is legal and valid and binding upon the plaintiffs. Defendant No.11 has shown his ignorance about the filing of the suit by the plaintiffs previously and the compromise arrived between the parties in that suit. 4. Learned Sub Judge 1st Class framed issues on 1.7.1992. The suit was decreed by the learned Sub Judge 1st Class vide judgment dated 15.1.1999. Defendants preferred an appeal before the Presiding Officer, Fast Track Court Mandi. He accepted the appeal on 2.11.2004. The judgment and decree passed by the learned Sub Judge 1st Class was set aside. Hence, this Regular Second Appeal against the judgment and decree dated 2.11.2004. The Regular Second Appeal was admitted on various substantial questions of law, as detailed in the grounds of appeal on 8.11.2005. 5. Mr. B.K. Malhotra has strenuously argued that the first appellate court has misconstrued and mis-appreciated the oral as well as documentary evidence while coming to the conclusion that the suit was not within limitation. According to him, the suit was within limitation. 6. Mr. G.R. Palsara has supported the judgment and decree passed by the first appellate court. 7 7. I have heard the learned counsel for the parties and have perused the record carefully. 8. 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. 9. It is not in dispute that the property was situated in three Mohals. Mohal Ragehui was merged in Mohal Bharar during the settlement operation. Now, the suit property situate in Mohals Barkawali and Bharar. Plaintiffs were recorded to be owners in possession of 1/4th share in the suit property whereas defendants were recorded owners in possession to the extent of 3/4th share in the suit property on the basis of jamabandis for the years 1988-89 and 1984-85. 10. According to PW-1, in the earlier suit filed by his predecessor, compromise was effected according to which ½ share in the land situated in Mohal Barkawali and Ragehui and 6¾ bighas of land situated in Mohal Bharar was given to the plaintiffs and since then they are in possession of this land and during settlement operation, Mohal Ragehui was merged into Mohal Bharar, but no entry in the revenue record was effected on the basis of decision in the civil suit and he wanted that the entry be made in the revenue record on the 8 basis of compromise passed in the suit. DW-1 Mani Ram has not denied the institution of suit qua the suit property. The plaintiffs were also allowed to lead secondary evidence by the trial court on 27.8.1994. The plaintiffs thereafter have placed on record copy of register No.1 of civil suit Ex.PW-1/B, which establishes on record that civil suit No.241 was instituted on 25.8.1958 by Molak and Dhari against Dagu, Sadhari, Dhani Ram, Man Dass, Maghi etc. seeking declaration that they are having ½ share in the suit property situated in Mohal Ragehui, Barkawali and Bharar and as per entry in the column of judgment in this register, a compromise took place between the parties. 11. Now, as far as the claim of the plaintiffs for possession over ½ share in the land detailed in paras 1 (A) and 2 of the plaint and regarding their possession to the extent of 6-15-0 bighas over the land detailed in para 1 (B) of the plaint is concerned, the same is not established on record. The plaintiffs have also been recorded as owners in possession of 1/4th share in the suit property and it was due to this reason that predecessor of the plaintiffs filed a suit during the year 1958. Plaintiffs have supported their case on the basis of statement of PW-1 Sauju and PW-2 Tosh Ram. PW-2 Tosh Ram has deposed that he has no knowledge about 9 the numbers of the fields comprising the suit property and he has also no knowledge in which village how many fields are situated. He has also deposed that no demarcation of the suit property had taken place in his presence. The statements made by PW-1 and PW-2 are contrary to the revenue record. PW-1 has admitted in his cross-examination that prior to settlement, they used to pay land revenue regarding ½ share in the suit property and after settlement, they have been paying land revenue regarding 1/4th share in the suit property. One of the plaintiffs, in his cross-examination, has deposed that he alongwith his father was associated in the settlement operation. However, neither plaintiffs nor their predecessor- in-interest produced the copy of judgment and decree dated 20.11.1958 before the settlement authority for the purpose of getting the revenue entries corrected. It is also proved on record that the plaintiffs started paying the land revenue to the extent of 1/4th share in the suit property, whereas previously they used to pay the land revenue qua ½ share in the suit property, as per categorical admission of PW-1 in his cross-examination. The plaintiffs have also not instituted the suit within a period of three years from the date of settlement. The suit was filed only in the year 1977, which was permitted to be withdrawn. The plaintiffs have failed to 10 prove that the cause of action have arisen to them on 16.9.1982. 12. The learned first appellate court came to a right conclusion that plaintiffs have failed to prove that they were in possession of ½ share of the suit property. The very basis of filing the present suit was the judgment and decree dated 20.11.1958 passed by the learned Sub Judge, Mandi in civil suit No. 241. 13. Plaintiffs have pleaded that the cause of action accrued to them on 16.9.1982 when plaintiff No.1 was evicted from two fields measuring 0-10-1 bighas. This averment has not been supported by evidence. Rather, PW-1 has deposed that he wanted that the entry be made in the revenue record on the basis of judgment and decree dated 20.11.1958. The plaintiffs are seeking execution of the judgment and decree dated 20.11.1958. The period prescribed seeking execution of the decree, as per Article 136 of the Limitation Act, is 12 years. The plaintiffs are also seeking relief of declaration on the basis of decree dated 20.11.1958 and as per Article 58 of the Limitation Act, for seeking declaration, the period of limitation has been prescribed, as three years to be computed from the date when right to sue first accrues to the plaintiffs. In the instant case, the decree was passed on 20.11.1958. 11 The judgment and decree have been made the basis for filing the present suit by the plaintiffs. Admittedly, no execution petition has been filed by the plaintiffs. Plaintiffs have not taken any steps for correction of the revenue record on the basis of judgment and decree dated 20.11.1958. 15. Accordingly, in view of the discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), Judge 9.3. 2011 *awasthi*