IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 341 of 1998. Judgement reserved on: 23.11.2010. Date of decision: 24.11.2010. Netar Singh ….. Appellant. Vs. Smt. Prem Lata & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. N.K.Sood, Advocate. For the Respondents : Mr. Ashwani K. Sharma, Advocate, for respondents No. 1(a) to 1(c) and court guardian of respondents No. 2 & 3. Kuldip Singh, Judge. This appeal has been filed by defendant No. 1 against the judgement, decree dated 20.1.1998 passed by learned Addl. District Judge, Mandi in Civil Appeal No. 24 of 1990 decreeing the suit of Ram Dass predecessor-in-interest of respondents No. 1(a) to 3 holding him joint owner of 1/4th share, defendants No. 5 to 11 also joint owners of 1/4th share of the suit land. The defendant No. 1 and his alienees joint owners of ½ share of the suit land and suit land is liable to be partitioned. The learned Addl. District Judge has reversed the judgement, decree dated 19.1.1990 passed by learned Senior Sub Judge, Mandi in Civil Suit No. 15/88, 57/89 whereby the suit was Whether the reporters of the local papers may be allowed to see the Judgment? yes …2… dismissed. Some of the original parties have died. In this judgement, the parties are referred to as plaintiff and defendants. 2. The pleaded case of Ram Dass plaintiff was that suit land more specifically described in the plaint, was joint in which plaintiff was joint owner in possession to the extent of 1/4th share. In revenue record the possession of defendant No. 1 was recorded as co-sharer but such possession of defendant No. 1 was on behalf of other co-sharers. The land was still in joint ownership and possession of the parties as co-sharers. 3. Janku one of the co-sharers has since died and defendants No. 5 to 11 are his heirs being widow, sons and daughters. The defendant No. 1 was enjoying larger share as a co- sharer in comparison to other co-sharers and for this reason there remained a dispute between the parties regarding enjoyment and possession of the suit land. The defendants had been asked to get the suit land partitioned but without any result, hence the suit was filed for declaration that the suit land was still joint and un-partitioned of the parties. The suit land was liable to be partitioned through the process of law. The share of plaintiff was liable to be separated through partition. 4. The suit was contested by Netar Singh defendant No.1. He filed written statement and took preliminary objections of limitation, locus-standi of the plaintiff to file the suit. On merits, the entry showing the plaintiff and Janku as owners of the suit land was pleaded to be wrong and incorrect. It has been pleaded that suit land was exclusively owned and possessed by one Loudu, but at the time …3… of settlement the names of plaintiff and Janku have been introduced in the revenue record without any justification. The entry showing them as owners to the extent of ½ share of the land was wrong. Loudu never transferred his ½ share or any part of the suit land in favour of Ram Dass and Janku. Loudu remained in possession of the land till 1969 and in the year 1969 he gifted the entire suit land to defendant No. 1 Netar Singh and as such defendant No. 1 had been coming in exclusive possession of the suit land. 5. The alleged transfer in favour of plaintiff and Janku was wrong inasmuch as possession of any part of the suit land was not given to plaintiff and Janku at the time of alleged transfer. Netar Singh defendant No. 1 has also taken the plea of adverse possession on the suit land and has prayed for dismissal of the suit. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit land is still joint and un-partitioned of the parties? OPP. 2. Whether defendant No. 1 has become the owner of the suit land by way of adverse possession? OPD. 3. Relief. The issue No. 1 was answered in negative, whereas issue No. 2 in affirmative and the suit was dismissed on 19.1.1990. In appeal, an application, under Order 41, Rule 27 CPC was filed by the successors of plaintiff, which was allowed vide order dated 4.12.1996 by the learned lower appellate court. The order allowing additional evidence was challenged in CR No. 40 of 1990, which was dismissed on …4… 19.4.1997. The documents Ex. A-1, Ex. A-2, Ex. A-3 were taken on record. In rebuttal, Ex. R-1, Ex. R-2, Ex. R-3, Ex. R-4 and Ex. R-5 were tendered in evidence. The learned Addl. District Judge allowed the appeal on 20.1.1998, hence, second appeal, which was admitted on four substantial questions of law filed with the appeal, but on 23.11.2010, the appellant has not pressed substantial questions of law No. 1 and 2. The remaining substantial questions of law No.3 and 4 after renumbering are as follows:- 1. Whether the document Ex. A1 the mutation of transfer of half share of land in favour of the plaintiff from deceased predecessor of the appellant can in law be successfully used to displace the presumption of correctness attached to the earlier revenue entries as reflected in Ex. DA particularly when no such mention of such mutation of change is recorded in the subsequent jamabandies in favour of the plaintiff? 2. Whether the findings of the learned appellate court below are vitiated on account of mis-interpretation, misconstruction of the pleadings and the evidence and illegal placing of reliance on documentary evidence which is in variation to the case pleaded and set up in the pleadings? 6. 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 the trial court after due appreciation of material on record has rightly dismissed the suit, but the learned lower appellate court has misconstrued, mis- interpreted mutation Ex. A 1. The presumption of truth attached to consistent revenue …5… record has not been rebutted by the plaintiff. Loudu was the owner of the land and he had given whole of the land to appellant/ defendant No. 1 Netar Singh. The learned lower appellate court has misconstrued and misinterpreted the pleadings and evidence. The learned counsel for the respondents-successors of plaintiff has submitted that learned lower appellate court has rightly scanned the entire evidence on record and no fault can be found with the impugned judgement, decree. He has supported the impugned judgement and decree. 7. The aforesaid substantial questions of law No. 1 and 2 are interconnected, therefore, both of them are taken up collectively for determination. The parties have not denied that at one point of time Loudu was the owner of the suit land. The case of respondents- successors of plaintiff is that they are so-sharers to the extent of 1/4th share, successors of Janku are also co-sharers to the extent of 1/4th share and in the remaining land in dispute the appellant and his alienees are co-sharers to the extent of ½ share. The case of the appellant is that he is exclusive owner of whole of the suit land, which was at one point of time owned by Loudu. 8. The successors of plaintiff have placed on record mutation No. 636 dated 27.3.1962 Ex. A-1 by way of additional evidence. The perusal of Ex. A-1 indicates that Loudu by way of izadinama had given ½ share to Ram Dass and Janku in equal shares on 27.3.1962. Loudu vide mutation No. 40 dated 28.3.1969 Ex. DC had given ½ share to appellant of his property. There is no dispute between the parties regarding the owner of the land prior to …6… the year 1962, therefore, the ownership and possession of the suit land and entries thereto prior to 1962 are not of any relevance. The revenue record of the suit land after the year 1962 is certainly relevant. The successors of plaintiff have established that name of their predecessor Ram Dass was rightly recorded in the revenue record after the attestation of mutation Ex. A-1, and, therefore, no fault can be found with such revenue record. 9. It is clear that vide Ex. A-1 Loudu had given half share to Ram Dass and Janku in equal shares. Therefore, what was left with Loudu was remaining half share which he gave to appellant vide mutation Ex. DC on 28.3.1969. The appellant has not shown from the material on record on what basis he has acquired the entire land of Loudu which was owned by him prior to 27.3.1962. The document which supports the case of the appellant is Ex. DC according to which the appellant has ½ share in the suit property. Ex. DA is the copy of jamabandi for the year 1959-60 in which Loudu has been recorded owner in possession of the land. There is no dispute between the parties that Loudu was not owner in possession of entire suit land prior to 1962, therefore, appellant cannot take any benefit of jamabandi for the year 1959-60 Ex. DA. The appellant has failed to point out that the learned lower appellate court has ignored material evidence or based its judgement on in-admissible evidence. The misconstruction and mis-appreciation of the pleadings have also not been specifically pointed out. The view taken by the learned lower appellate court in reversing the judgement of the trial court emerges from the evidence on record. The learned lower appellate court had …7… additional advantage of considering the additional evidence. There is no force in the appeal. The aforesaid substantial questions of law No. 1 and 2 are decided against the appellant. 10. No other point was urged. 11. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. November 24, 2010. ( Kuldip Singh ), (Hem) Judge.