IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 477 of 2010. Reserved on: 05.01.2011. Decided on 21.02.2011. _____________________________________________________ Balbir Singh Dhawan. …Appellant. -Versus- Ashok Kumar and Others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellant. : Mr. Sunil Mohan Goel, Advocate. For respondents No. 1 and 2. : Mr. Avneesh Bhardwaj, Advocate vice Mr. Ajay Kumar, Advocate. None for respondents No. 3 to 5. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 15.07.2010, passed by the learned Additional District Judge, Shimla in Civil Appeal No. 43-R/13 of 2008. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) had instituted a suit for declaration against the defendants-respondents 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - (hereinafter referred to as “the defendants” for convenience sake). It is averred in the plaint that Sadhu, Dassu and Ramju were three brothers residing in village Gawas, Tehsil Chirgaon. They constituted joint Hindu family governed by “Mitakshara law”. Dassu and Ramju were stated to be minors and their interests were looked after by Sadhu being eldest brother. Plaintiff was stated to be running a petty shop in his village since 1950. He used to maintain account books, such as Rokar-Cum-Cash book and Khata Bahi regularly in the course of his business. Shri Sadhu purchased articles on credit from the shop of the plaintiff from time to time and plaintiff has made entries to this effect in the Rokar as well as Khata regularly kept for the purpose on 12.03.1957. A sum of Rs.40.50/- was outstanding against said Sadhu. Shri Sadhu also stated to have taken Rs.300/- in cash and in lieu of such amount, he mortgaged with possession land known as “Nichla-Shela-Pani” classified as Karali with the plaintiff. Plaintiff came into possession as usufructuary mortgagee in 1961. Plaintiff also took possession of land of other owners at place known as “Upper-Wala-Shela-Pani.” The land comprised in Khasra No. 797 of Sadhu was in the vicinity of this land and other co-owners at “Upper-Wala-Shela-Pani”. Thereafter, in order to have a compact chunk of land, plaintiff asked Sadhu to hand over the possession of the land in lieu of land which was in possession of the plaintiff at “Nichla –Shela-Pani” as usufructuary mortagee. This offer of the plaintiff was accepted by the defendants and as a result thereof, the possession of the suit land was delivered to the plaintiff as mortgagee. The entry to this effect was also made in the revenue record. Plaintiff planted apple orchard over the suit - 3 - land in 1962. Plaintiff instituted a civil suit No. 123/61 against Shri Sadhu Ram for recovery of Rs.324.75 paise. The same was decreed in favour of the plaintiff. He filed an execution petition No. 63/62. The entire Khata of Sadhu which included the suit land, was also attached in the attachment proceedings. The attachment proceedings were given effect in the revenue record vide Vaka No. 448 dated 18.07.1962 in pursuance of the order of Collector Mahasu, dated 03.07.1962. According to him, the land remained under the attachment. However, the entries, which continued in the Jamabandis for the year 1964-65, 1968-69 and 1973-74, were discontinued in the subsequent Jamabandis. According to the plaintiff, since Sadhu, Dassu and Ramju were occupancy tenants in the suit land, the proprietary rights were conferred upon them later on, though the ownership of the land remained with the Government and prior to that with Mandir Devta Sahib. Shri Sadhu, Dassu and Ramju executed a sale deed No. 72/76 dated 25.3.1976 in favour of the defendants No. 1 and 2, namely, Shri Ashok Kumar and Shri Hari Bhushan. The mutation was attested in favour of defendants No. 1 and 2 on 27.02.1985. Thereafter, the settlement operation took place in the area and the suit land was assigned new Khasra Nos. 1024, 1034 and 1035. During settlement operation, the possession over Khasra Nos. 1034 and 1035 was recorded in the name of plaintiff and that of Khasra No. 1024 out of the suit land in the name of defendants No. 1 and 2. In the meantime, defendants No. 1 and 2 had instituted a Civil Suit No. No. 151/1 of 1995/98/1 of 1998. According to the plaintiff, he fell down in 1991 and could not impart proper instructions to his counsel to take the plea that he was in - 4 - possession of the suit land on the basis of usufructuary mortgagee. The suit was decreed in favour of defendants No. 1 and 2 on 28.04.2000 (Ex. PW-3/X) and copy of the decree is Ex. PW- 3/Y. Plaintiff filed an appeal before the 1st appellate Court. The same was dismissed by the 1st appellate Court. The Regular Second Appeal preferred in this Court was also dismissed by this Court. According to the plaintiff, after he suffered a decree vide Ex. PW-3/Y, he looked into the old records and came in possession of the documents prepared in 1950 to 1957. In these circumstances, he filed a suit with the following prayers: “(a) A decree for declaration that the plaintiff is mortgagee with possession (Usufructuary Mortgagee) over the suit land bearing Khasra No. Old 797, new Khasra No. 1034, 1035 and 2024 known as “Upperwala-Shelapani” comprised in Khata No. 71, Khatauni No. 176 and 177 as shown in the Misal Haqiat for the year 1986-87 in revenue chak Gawas, Tehsil Chirgaon, District Shimla, H.P. and the entry of possession with respect of Khasra No. new 1024 in the name of defendants No. 1 and 2 is illegal and contrary to the spot position and judgment/decree No. 151-1/95/58-1 of 98 dated 28.4.2000 Ashok Kumar etc. Vs. Balbir etc. has become in-effective and is not binding upon the plaintiff. (b) Further for declaration that defendants No. 1 and 2 have lost the right of redemption and the plaintiff has every right to remain in possession, as usufructuary mortagee or in-alternative has become owners in possession of the suit land. ( c) A decree for permanent prohibitory injunction restraining the defendants No. 1 and 2 from dispossessing/ejecting the plaintiff from the suit land on the basis of judgment and decree No. 151/1 of 1995/58/1 of 1998 dated 28.04.2000 in any - 5 - proceedings including execution and also from making interference in any manner over the aforesaid suit land, and execution proceedings before Ld. Sub Judge (2) Rohru be stayed.” 3. The suit was contested by defendants No. 1 and 2. On merits, it was denied that the land was in possession of the plaintiff by virtue of usufructuary mortgagee. According to the defendants, this plea has been taken by the plaintiff to defeat the execution proceedings. However, the factum with regard to conferment of proprietary rights and thereafter execution of sale deed in favour of defendants No. 1 and 2 by Sadhu, Dassu and Ramju has not been denied. According to them, the property of S/Sh. Sadhu, Dassu and Ramju was attached in execution of decree of Rs.324.75 vide entry No. 448 dated 18.7.1962 made in column of remarks of Jamabandi for the year 1964-65. However, the said entry was cancelled on 31.08.1974 on payment of money by the deceased Sadhu Ram and thereafter, such entry which was appearing in the column of remarks in the jamabandi till 1973-74, was deleted in the subsequent jamabandi on the basis of entry No. 51, dated 30/31.8.1974 made in Nakal Fard Partal Girdawar. The factum with regard to fall of the plaintiff has been denied. The learned trial Court framed the issues on 05.06.2003. The learned trial Court dismissed the Civil Suit on 27.11.2008. Thereafter, the plaintiff preferred an appeal before the learned Additional District Judge, Shimla. He dismissed the same on 15.07.2010. Hence, this Regular Second Appeal. - 6 - 4. The notice was issued to the parties on 03.11.2010. Mr. Ajay Kumar, Advocate has put in appearance on behalf of contesting respondents No. 1 and 2. 5. Mr. Sunil Mohan Goel, Advocate has strenuously argued that both the Courts below have failed to take into consideration the well settled principles of law while passing the judgments and decrees. According to him, the learned Courts below have mis-read the oral as well as documentary evidence, which has resulted in mis-carriage of justice. 6. Mr. Avneesh Bhardwaj, learned vice counsel for respondents No. 1 and 2 has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned counsel for the parties and gone through the records carefully. 8. Plaintiff has led his evidence by way of affidavit. He has reiterated the facts mentioned in the plaint in his affidavit. He was cross-examined by the defendants. In his affidavit, he has reiterated that the land was mortgaged by Sadhu Ram with him. He has planted apple orchard in the year, 1962 and maintained the same. He has also instituted a Civil Suit No. 123 of 1961 against Shri Sadhu Ram, which was decreed in his favour. In execution petition No. 63/62, the land denoted in Khasra No. 797 was attached and the entry was incorporated as Vaka No. 448 dated 18.07.1962 on the basis of the order passed by the Collector, Mahasu on 03.07.1962. Sadhu Ram came to him and assured him that he will re-pay the amount. However, he did not kept his promise. According to him, the entry with regard to attachment was incorporated in the Jamabandis for the years - 7 - 1964-65, 1968-69 and 1973-74. However, the entry with regard to attachment did not appear in the latter Jamabandis. He has requested the Tehsildar, Rohru in 1966 to record his possession in all the Khasra numbers. However, in the meantime, Sadhu, Dassu and Ramju were conferred proprietary rights. According to him, the State Government had become owner of the land and before that, the land belonged to Mandir Devta Sahib. Shri Sadhu, Dassu and Ramju took benefit of the conferment of proprietary rights upon them and executed a sale deed No. 72/76 dated 25.3.1976 in favour of defendants No. 1 and 2. According to him, it could not be done since the land was in his possession and khasra number of the same was incorporated under attachment in the revenue records. According to him, the sale deed was executed on 25.03.1976. However, the mutation was attested only in 1985. During settlement, the new Khasra numbers were assigned. In 1991, he fell down from the roof of his house. He could not remember the earlier proceedings instituted pertaining to the suit land. He only remember that the land was in his possession for 38 years. He remained hospitalized in P.G.I., Chandigarh. The Civil Suit was instituted by defendants No. 1 and 2 on the basis of sale deed. The number of Civil Suit was 151-1 of 1995/58-1 of 1998, titled Ashok Kumar Versus Balbir Singh. Since he has forgotten about the land being mortgaged with him, he could not instruct his lawyer of this fact. The Civil Suit was decided in favour of the defendants. He filed the appeal, but the same was rejected. He preferred a second appeal, but the same was also dismissed by this Court. When he re-gained his memory, he started looking for the documents relating to entries made in - 8 - Khatas. He could trace out the same after putting a lot of labour. He was cross-examined at length by the defendants. In his cross- examination, he deposed that he has filed the affidavit on 30.06.2008. He has produced on record Ex. PW-3/A, PW-3/B, PW-3/C, PW-3/D, PW-3/E, PW-3/F, PW-3/G, PW-3/H, PW-3/J, PW-3/K, PW-3/L, PW-3/M, PW-3/N, PW-3/O, PW-3/P, PW-3/Q, PW-3/R, PW-3/S, PW-3/T, PW-3/U, PW-3/V, PW-3/W, PW-3/X, PW-3/Y and mark B and mark C. He has admitted in his cross- examination that as far as two khasra numbers are concerned, he suffered a decree and this suit has been instituted only for remaining khasra numbers. According to him, he has planted 200 apple plants on the suit land. The age of the apple trees was 32-33 years. He has admitted that Ex. PW-3/G has not been signed by Sadhu. He has also admitted that he has not proved Ex. PW-3/G. He has also admitted that no ticket has been affixed on Ex. PW- 3/G. He has also admitted that in Ex. PW-3/H, there is no separate account of any customer. He has also admitted that in Ex. PW-3/K, there are entries of five customers. He has admitted that he has not obtained their signatures. According to him, he has given full description in the encircled portion of Ex. PW-3/L. As per mark –X, his possession was entered. He has also admitted that after 1973-74, there is no entry with regard to attachment since the matter has come to an end. Thereafter, he volunteered that the dispute was with regard to 324.75 paise instead of 340.50 paise. According to him, the sale deed was bad since he was in possession of the suit land. He has denied that he has not challenged the sale deed. He has admitted that the entire area knew about his fall, however, he did not remember in which - 9 - hospital he was taken for first aid. He admitted that he might have been taken to Rohru hospital. Thereafter, he was taken to Shimla. He remained in “comma”. He also admitted that he has fully recovered on 01.10.2003. However, lateron, he volunteered that he has not re-gained his memory fully. He has re-gained his memory slowly. He has also admitted that the loss of memory has only affected this case and not the other cases. It has not affected other cases. He received shock when R.S.A. was dismissed by this Court. He did not remember the date of the judgment rendered by this Court in R.S.A. However, he remembered the year, i.e., 2002. 9. PW-4 is Smt. Kagli Devi. She has produced her evidence by way of affidavit. She has supported the version of plaintiff. According to her, the plaintiff has planted apple orchard in 1962 on Khasra No. 797. The orchard is well maintained by the plaintiff. Plaintiff has instituted the suit against Shri Sadhu Ram and the same was decreed in his favour. According to her, Shri Sadhu, Dassu and Ramju have no right to execute the sale deed No. 72/76 dated 25.03.1976 in favour of defendants No. 1 and 2. According to her, in 1991, Balbir Singh fell from the roof of his house. He became unconscious. Shri Sadhu, Dassu and Ramju had died. Shri Ramju was her husband. According to her, the land was mortgaged with the plaintiff and the defendants have no connection whatsoever with the suit land. She was cross- examined by the defendants. According to her, she has furnished the affidavit on 30.06.2008. She has seen the Rokar Bahi herself. According to her, Sadhu Ram had mortgaged the land with the plaintiff. She did not know about the Khasra number. According to her, the suit land measures 12-13 bighas. She has denied that - 10 - apple trees belong to defendant Ashok Kumar. According to her, the land was mortgaged 25 years’ back. She has admitted that she had also instituted the suit against the defendants with regard the suit land and other land. She has denied that the suit was instituted at the instance of the plaintiff. She has denied that Sadhu Ram paid the money to the plaintiff. 10. PW-1 is Dr. Ramesh Kumar. He was posted in the department of Psychiatry in 2002. He has examined the record of the plaintiff obtained from the P.G.I., Chandigarh. The Record was examined by three doctors, i.e., Dr. Hardayal and Dr. K.S. Rana, including PW-1. Dr. K.S. Rana is Neuro Surgeon and Dr. Hardyal is Senior Medical Superintendent. The medical report was furnished by the Board after examining the medical record. The medical report Ex. PW-1/A was signed by all the three doctors. 11. PW-2 is Dr. Madan Mohan. He has produced the record from P.G.I., Chandigarh. According to him, as per the records, the plaintiff remained in P.G.I., Chandigarh from 21.12.1991. He was discharged on 24.12.1991 as indoor patient. Thereafter, he was taken as indoor patient in P.G.I., Sarai and thereafter, he was treated as out-door patient up to 07.01.1992. He has admitted in his cross-examination that the plaintiff was discharged finally on 24.12.1991. This is the evidence produced by the plaintiff. 12. DW-1 is Shri Ashok Kumar. He has also led his evidence by way of an affidavit. According to him, the land has been purchased by his father Satya Nand from Sadhu, Dassu and Ramju. The land measures 7 bigha and five biswas. It was denoted in three Khasra numbers, i.e., 1034, 1035 and 1024. Defendants - 11 - No. 1 and 2 have instituted the suit against the plaintiff. It was decided in their favour. The appeal bearing No.59-S/13 of 2000 was dismissed by the first appellate Court on 15.10.2001. The High Court has also dismissed the R.S.A. on 13.05.2002. According to DW-1, the land was now no more mortgaged with the plaintiff, since Sadhu Ram has got the note of attachment deleted. The entry to this effect was made in Fard Partal report bearing No. 51 dated 30-31.08.1974. He has been cross-examined by the plaintiff. He had admitted in his cross-examination that Sadhu, Dassu and Ramju were three brothers. He did not know that Sadhu was eldest. He did not know that the plaintiff was running a small shop since 1950. He did not know that Sadhu etc. used to purchase items from his shop and he used to maintain the records. He denied the averments with regard to mortgage of the land by Sadhu in favour of the plaintiff. He has denied the possession of the plaintiff. He has no knowledge about the suit instituted by Sadhu and Others. He has denied that entry with regard to the land was got deleted by them by conniving with the revenue officials. He has denied that the plaintiff has fallen from the roof in 1991 and he received head injuries. He has denied the treatment of the petitioner from P.G.I. He has denied that the plaintiff suffered shock when he lost in the High Court. According to him, his father had planted orchard. 13. DW-2, Shri Hazari Nand Sharma has tendered his evidence by way of affidavit. He has never heard that plaintiff had suffered fall and he lost his memory. He was cross-examined by the plaintiff. He has denied the suggestion that the plaintiff has - 12 - met with an accident and he became unconscious. He has not seen the orchard. 14. DW-3 is Shri Mohar Singh. He has also tendered his evidence by way of affidavit. He has been cross-examined by the plaintiff. He has supported the defendants. He has never heard that the plaintiff has met with an accident in 1991. He did not know that the plaintiff was ever treated in P.G.I. This is the oral evidence led by defendants No. 1 and 2. 15. What emerges from the oral and documentary evidence, is that the plaintiff has failed to prove that he has lost his memory due to fall. He has not been physically examined by the members of the Medical Board. The certificate has been issued only on the basis of the record obtained from the P.G.I.. One of the members is only Medical Superintendent. He has no expertise about the mental health of the plaintiff. Plaintiff has also admitted that the loss of memory has only affected this case and not the other cases. If there was memory loss, he could not remember anything about the other cases as well. The plea taken by the plaintiff that due to loss of memory, he could not instruct his counsel that he is in possession of the suit land on the basis of usufructuary mortgage, can not be believed. It was always open for him to take this plea when Civil Suit No. 151/1 of 1995/98/1 of 1998 was instituted by defendants No. 1 and 2 against the plaintiff. The judgment rendered by the trial Court on 28.04.2000 (Ex. PW-3/X) has attained finality since the first appeal as well as Regular Second Appeal has been dismissed by this Court. The present suit has been instituted on 19.09.2002. Ex. PW-1/A has been issued by the Medical Board on 01.10.2003. - 13 - 16. Now, as far as the plea of the plaintiff with regard to usufructuary mortgage is concerned, he could not prove the same. PW-3 has admitted in his cross-examination that Shri Sadhu has not countersigned the entries, rather objection was taken at the time of the production of Ex. PW-3/G to Ex. PW-3/L. Since these documents have not been countersigned by Sadhu Ram, the same have correctly been disbelieved by the learned trial Court. Shri Surmu, in whose presence the land was stated to have been mortgaged, has not been examined, rather the plaintiff has instituted the Civil Suit against Sadhu Ram. The same was decreed. It is discernable from the record that Sadhu has paid the money back and the entry of attachment was subsequently deleted. The proprietary rights were conferred upon Sadhu Ram and his brothers. Thereafter, the land was sold by Sadhu to defendants No. 1 and 2 and the mutation was attested in 1985. In Jamabandis for the year 1956-57 and 1960-61, the ownership has been shown of Mandir Devta Sahib and possession as Marusi of Sadhu, Dassu and Ramju. Plaintiff has not been shown in possession of this land either as a mortgagee or as non-occupancy tenant. In Jamabandi for the year 1964-65, Ex. PW-3/M, the State of Himachal Pradesh has replaced Devta Sahib as owner and in the column of possession and Sadhu was recorded as occupancy tenants alongwith others. Similar is the entry in Jamabandi in 1968-69 Ex. PW-1/A. The entries with regard to attachment continued in the copy of Jamabandi for the year 1968-69 and also in the Jamabandi for the year 1973-74. However, these entries were subsequently deleted pursuant to entries made in the copy of Nakal Fard Partal Girdawar No. 51 dated 31.08.1974, Ex. PW- - 14 - 3/C, wherein it has been recorded that a sum of Rs. 324.75 has been received by the decree holder–plaintiff and thereafter these entries were deleted. 17. Consequently, in view of the observations and discussions made hereinabove, there is no substantial question of law involved in this Regular Second Appeal and both the Courts below have correctly appreciated the oral as well as documentary evidence. 18. Accordingly, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge February 21, 2011. (bhupender) - 15 -