Dismissed

Sita Devi v. Shakuntla Devi

Himachal Pradesh HC8 Aug 2017RSA/508/2005

Case brief

AI extract

What is this about?

This second appeal concerned a suit for perpetual injunction over suit land. The High Court upheld the dismissal of the appeal, finding the Appellate Court's reliance on the Settlement Collector's correction order valid. The court held that the lower courts did not commit perversity in interpreting evidence regarding land possession discrepancies.

What did the court decide?

The appeal was dismissed as it deserves dismissal without orders as to costs.

Sita Devi Vs Shakuntla Devi — Property and Title | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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	*RSA No. 508 of 2005*
	*Reserved on: 01.08.2017* *Decided on: 08.08.2017*
_________________________ Sita Devi Ve	___________________________________ …..Appellant. rsus
Shakuntla Devi & othe	rs ……Respondents.
_______________________ Coram The Hon'ble Mr. Justice 1 Whether approved for re	________________________________ Chander Bhusan Barowalia, Judge. porting? Yes.
______________________ For the appellant:	________________________________ Mr. N.S. Chandel, Advocate.
For the respondents:	Mr. K.D. Sood, Sr. Advocate, with Mr. Arjun K. Lal, Advocate.
Chander Bhusan Baro	walia, Judge.

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The present regular second appeal has been maintained by the appellant/plaintiff (hereinafter referred to as “the plaintiff”), laying challenge to the judgment and decree, dated 10.09.2004, of the learned District Judge, Kinnaur at Rampur Bushahr, H.P., passed in Civil Appeal No. 24 of 2004, whereby the appeal filed by the plaintiff and her son against the judgment and decree, dated 20.03.2004, passed by the learned Civil Judge (Senior

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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Division) District Kinnaur, Camp at Rampur Bushahr, H.P., in Civil Suit No. 7-1 of 95, was dismissed.

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Succinctly, the key facts, which are

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indispensable for determination and adjudication of the present appeal, are that the plaintiff maintained a suit seeking perpetual prohibitory injunction qua land comprised in Khata/Khatauni No. 553, measuring 309650, situated in Up-Mohal Padam Nagar, Tehsil Rampur Bushahr, District, Shimla, H.P. (hereinafter referred to as “the suit land”). As per the plaintiffs they are owners-inpossession of the suit land and the

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respondents/defendants (hereinafter referred to as “the defendants”) were strangers having no right, title and interest upon the suit land. On 22.02.1995, when the plaintiff (Smt. Sita Devi) had come to Rampur Bushahr, the defendants tried to criminally trespass into the suit land with a motive to dispossess the plaintiffs, however, by that time plaintiff, Sita Devi, reached the spot and thus the defendants could not succeed in their acts. The defendants

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did not desist from openly saying that they will dispossess

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the plaintiffs from the suit land, so the plaintiffs

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maintained a suit seeking a decree for perpetual injunction against the defendants to restrain them from interfering into the possession of the plaintiffs over the suit land.

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The defendants, by way of filing written statement, contested and resisted the suit of the plaintiffs. They raised preliminary objections, viz., locus-standi and maintainability. On merits, the defendants contended that they never tried to dispossess the plaintiffs from the suit land. They further contended that land denoted by khasra No. 553 has been wrongly shown in the ownership and possession of the plaintiffs in the revenue record and defendants No. 1 to 4 are in possession over a part of khasra No. 553. As per the defendants, prior to settlement khasra No. 95/1 was in possession of the defendants, but the plaintiff in connivance with the settlement staff managed to merge this khasra No. into Khasra No. 553 and also managed to prepare wrong revenue record on the basis of which the plaintiff maintained the present suit. As per the defendants, later on, the Settlement Collector, Shimla, vide order dated 23.08.1995, ordered correction of the revenue record and thus khasra No. 553/2, measuring

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876-00 was shown in the ownership and possession of the defendants and the correction had been effected in the revenue record vide mutation No. 115, dated 02.01.1996. The defendants contended that they are in possession of the suit land and they never trespassed into it.

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In reply to the written statement filed by the defendants, the plaintiffs filed replication alleging that as the defendants, prior to settlement, were neither owners nor in possession of any land in the vicinity, thus there is no question of defendants’ possessing khasra No. 95/1. The plaintiffs also denied that khasra No. 95/1 was merged in the suit land due to connivance with the settlement staff. As per the plaintiffs, the correction made by the Settlement Officer, during the pendency of the suit, is not binding upon them, rather the correction had been made under the influence of son of Smt. Shakuntla Devi (defendant), who was serving as Revenue Secretary at that relevant time.

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The learned Trial Court on 13.05.1998 framed

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the following issues for determination and adjudication:

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“1. Whether the plaintiff is entitled to injunction, as prayed for? OPP

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2. Whether the plaintiff has no locusstandi to sue? OPD

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3. Whether the suit is maintainable in the present form? OPD

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4. Relief.”

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On 15.01.1999 the learned Trial Court framed

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the following additional Issue No. 3-A:

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“3-A Whether the orders dated 23.8.95 of Settlement Officer-Shimla is right, and binding upon the parties, as alleged? OPD.

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After deciding issue No. 1 against the plaintiffs,

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issues No. 2 and 3 against the defendants and issue No. 3-

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A in favour of the defendant, the suit of the plaintiffs was dismissed. Subsequently, the plaintiffs preferred an appeal before the learned Lower Appellate Court, which was also dismissed, vide impugned judgment dated 10.09.2004, hence the present regular second appeal, which was admitted for hearing on the following substantial question of law:

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“Whether the finding of the Appellate Court on Issue No. 3-A, are sustainable in law being based on unwarranted inferences, misreading and overlooking the evidence brought on record (both documentary and oral)?

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I have heard the learned Counsel for the

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appellant and the learned Court for the respondents.

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The learned counsel for the appellant has argued that the learned Courts below have mis-interpreted Ex. DA and have also failed to take into consideration the fact that Khasra No. 553 (old khasra No. 212/95) was, as a whole, in the ownership and possession of the appellant. He has further argued that the judgment and decree of the learned Courts below are required to be set-aside as the same are the result of mis-appreciation of evidence and the findings are also perverse. Conversely, the learned counsel for the respondents has argued that the order passed by the Settlement Authorities, that is Ex. DA, is as per the actual position on the spot and the same depicts that the defendants are owners-in-possession of the land comprised in khasra No. 553/23 and khasra No. 195/95 min and so the judgment and decree of the learned Courts below, which were passed after taking into consideration order passed by the Settlement Authorities, Ex. DA, have been passed after correctly appreciating the evidence which has come on record and thus the same needs no interference.

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He has also referred to the statement of the plaintiff (Smt. Sita Devi) recorded by the Settlement Collector, which is mark ‘X’. As per the learned counsel for the respondents, order of the Settlement Collector has not been challenged by the plaintiffs and the same has attained finality.

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In rebuttal, the learned counsel for the appellant has argued that mark ‘X’ has not been proved as per law and it has no evidentiary value and thus the learned courts below have passed the judgments and decrees after appreciating the order passed by the Settlement Collector on the basis of statement, mark ‘X’ and the same is not sustainable in the eyes of law. In these circumstances, the judgments and decrees passed by the learned Courts below may be set aside and the appeal may be allowed.

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In order to appreciate the rival contentions of the parties, I have gone through the record in detail. 12. PW-1, Smt. Sita Devi, deposed that she is owner-in-possession of the suit land and the defendants have nothing to do with the same. As per this witness, when the correction was effected, the suit was pending and stay was operating in her favour. She has further deposed

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that defendants are not in possession of any land on the spot. The son of the defendant, i.e., Shri Lokinder, was working as Sub Divisional Magistrate, Shimla, when illegally disputed correction was carried out. The defendants have no right to interfere with her possession. PW-2, Shri Saria Ram, has deposed that the defendants are not in possession of the suit land. This witness, in verbatim, has corroborated the statement of PW-1, Smt. Sita Devi.

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Manifestly, the defendants placed on record documents, Ex. DA to Ex. DD. Ex. DA is order dated 23.08.1995, passed by Settlement collector, Shimla, whereby correction in dispute was ordered to be made. Ex. DB is copy of jamabandi qua khasra No. 545, measuring 3777.50, whereby Smt. Shakuntla Devi had been ordered to be recorded as owner of Khasra No. 545/1, measuring 1753.50. Ex. DC is copy of missal hakiyat bandobast jadid qua khasra No. 553 (the suit land), old khasra No. of which is 212/95. As per the remarks column of this document, Smt. Sita Devi (plaintiff), vide mutation No. 105, she had succeeded Shri Tek Chand and there is no other note qua

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the fact that vide mutation No. 115 Smt. Shakuntla Devi had been declared as owner of khasra No. 553/2, measuring 876-00.

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The order of the Settlement Collector, Ex. DA, demonstrates that earlier the suit land was denoted by 212/95 min and the same is not denoted as khasra Nos. 553/1 and 553/3 and is shown to be in possession of the plaintiffs and khasra No. 553/2 is shown to be in possession of the defendants. As the settlement was going on in the area, the Settlement Collector was competent to pass correction order, as per the actual position existing on the spot. It is clear from the record that the correction application was filed by the defendants before the Settlement Collector before the institution of the suit.

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A plain reading of order, Ex. DA, makes it abundantly clear that correction application came to be filed well before 11.07.1995. Ex. DA further makes it clear that vide order dated 16.1.1994 the Settlement Collector asked the Tehsildar Settlement to visit the spot and submit a report. Consequently, Tehsildar Settlement visited the spot and submitted his report. This fact is further fortified

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by Smt. Sita Devi (plaintiff) and her statement is relevant in this regard. Smt. Sita Devi (PW-1), in her crossexamination, has admitted that on 23.07.1995 her statement was recorded by Tehsildar Settlement, thus, apparently before passing the order, the Settlement collector, Shimla, conducted proper inquiry and also afforded opportunity of being heard to the parties. The plaintiffs have portrayed that at the time of correction in dispute, the son of Smt. Shakuntla Devi (defendant) was posted as Sub Divisional Magistrate, Shimla, however, there is no evidence on record to prove this fact. Certainly, in the absence of any evidence in this regard, it cannot be presumed that the correction order in question was passed under some influence. In fact, there is nothing on record to establish that the correction in dispute was the result of some external influence.

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It is also clear from the record that the Settlement Collector was competent and within his rights to pass order in dispute. To this extent the statement of the defendant, mark ‘X’, is relevant, though it has limited evidentiary value, but when the Settlement Collector has

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come to a conclusion, mark ‘X’ cannot be ignored at all. Admittedly, in the case in hand, there is ample documentary evidence and the case cannot be decided against the defendants merely on their failure for not entering into the witness box. The burden of proving ownership and possession is on the shoulders of plaintiffs, but none of the plaintiffs, except Smt. Sita Devi (PW-1), appeared in the witness box and the statement of PW-1 is not of much help. Thus, as a natural corollary, it can be safely held that order dated 23.08.1995, passed by Settlement Collector, Shimla, is legal and valid and the same is binding, as the Settlement Collector is competent to pass such order on a correction application, which was filed before him during the settlement proceedings.

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Since the defendants never interfered in the land denoted by khasras No. 552/1, 553/3 and khasra No. 552/2 is in possession of the defendants, the judgments and decrees passed by the learned Courts below need no interference.

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The learned counsel for the respondents has relied upon the judgment of Hon’ble Supreme Court

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rendered in Damodar Lal vs. Sohan Devi and others, (2016) 3 Supreme Court Cases 78, relevant para whereof reads as under:

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“12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs 1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on reappreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the high Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man’s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is

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perverse. Inadequacy of evidence or a different reading of evidence is not perversity.”

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The above judgment is applicable to the present case as the

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Hon’ble Apex Court held that in case, if possible, the learned Court below arrives at a conclusion on the basis of facts in evidence, then there is no perversity. The Hon’ble Apex Court has further held that inadequacy of evidence or a different reading of evidence is not perversity. Thus, in the present case also the learned Lower Appellate Court has not committed any error by dismissing the appeal filed by the plaintiffs, as inadequacy of evidence or a different reading of evidence is not perversity.

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In view of what has been discussed hereinabove,

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the only substantial question of law, as framed in the present case, is answered that the learned lower Appellate Court while deciding issue No. 3-A has not committed any error and the findings rendered by the learned lower Appellate Court are not the result of surmises and conjectures, thus no interference by this Court is required, as the judgment of the learned lower appellate Court cannot be said to be perverse and the same is legally

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sustainable. The only substantial question of law is answered accordingly.

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The appeal, which sans merits, deserves dismissal and is accordingly dismissed with no orders as to costs.

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All pending application(s), if any, shall also

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stand(s) disposed of.

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(Chander Bhusan Barowalia) Judge

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8^th August, 2017

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(virender)

Sita Devi v. Shakuntla Devi

Case brief

What is this about?

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Sita Devi v. Shakuntla Devi

Case brief

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