Mangat Ram Vs. State of H.P. and anr. - Court Judgment

Excerpt:
property - ownership - pre-settlement - appellant had filed suit for declaration that he is owner in possession of land - in suit, appellant contended that in view of pre-settlement, he was owner of of various khasra nos. including present suit land and current settlement was wrongly conducted and during current settlement suit land was wrongly recorded in ownership and possession of respondents - suit dismissed - first appeal filed against same was also dismissed - hence, present second appeal filed by appellant - whether both courts below have misread and misinterpreted documentary evidence on record to come to conclusion that suit land corresponds to pre-settlement khasra no. x and not to khasra no.y, which was mentioned as petitioner's property in pre-settlement? - held, in plaint appellant has stated nothing about filing of application before tehsildar regarding pre-settlement - -although right over suit property was claimed by petitioner in plint but there is no averment in same that settlement was not conducted properly - no procedural defect in settlement was pleaded nor proved - appellant has placed no legal evidence on record to show that suit property or any part before settlement was owned by appellant - two courts below have concurrently recorded findings against appellant - in second appeal evidence cannot be re-appreciated - accordingly, appeal dismissed - kuldip singh, j.1. the appellant was plaintiff and has come in appeal against judgment, decreed 27.7.1998 passed by learned addl. district judge-1, kangra at dharamshala in civil appeal no. 49-k/97, affirming judgment, decree dated 26.5.1997 passed by learned sub judge ist class, (ii) ,kangra in civil suit no. 3391/97.2. the appellant had filed a suit for declaration that he is owner in possession of land comprised in khasra nos. 451/1, 448/1, 441/1, 440/1, 439/1, 471/1 and khasra nos. 447, 446, 438, measuring 0-06-90 hects. situated at mohal dhugial, mauza daulatpur, tehsil and district kangra vide jamabandi 1982-83 with consequential relief of prohibitory injunction and in the alternative for possession of the suit land.3. the further case of the appellant is that he was owner of pre-settlement khasra nos. 187, 194 and 193. the current settlement was wrongly conducted and during current settlement the suit land was wrongly recorded in the ownership and possession of respondents. the khasra no. 451/1 has been wrongly recorded in the ownership and possession of respondent no. 2, similarly, khasra nos. 448/1, 441/1, 440/1, 439/1, 471/1 and khasra nos. 447, 446 and 438 were recorded in the ownership and possession of respondent no. 1. he had served a notice under section 80 cpc on respondent no. 1 but to no result, therefore, the suit was filed.4. the suit was contested by respondent no. 1, in which preliminary objections of maintainability, jurisdiction, limitation, lack of cause of action, validity of notice under section 80 cpc, mis-joinder of necessary party, and valuation were taken. on merits, the respondent no. 1 has pleaded that state has no concern about khasra nos. 451 and 424, however, khasra nos. 448, 441, 439, 447 and 446 are owned and possessed by respondent no. 1. the appellant was recorded as pattedar for one year i.e. 1973-74 which was not extended. the khasra no. 440 is 'rasta sarehaam' and khasra no. 471 is owned and possessed by respondent no. 1. it was not denied that old khasra no. 187, 193, 194, were owned and possessed by appellant which were given new khasra nos. 416, 436, 442, 443, 444, 445 and 450 which are not part of the suit land. the land was measured in current settlement and revenue record was prepared as per factual position on the spot. the appellant filed replication to the written statement of respondent no. 1 and denied the stand of respondent no. 1. the suit was initially filed against 11 defendants but later on defendants no. 3 to 11 were deleted. the learned trial court had framed the following issues:1. whether the plaintiff is owner in possession of suit land as alleged? opp2. whether the plaintiff is entitled for the relief of injunction, as prayed for? opp3. whether the suit in present form is not maintainable? opd4. whether the civil court has no jurisdiction? opd5. whether the plaintiff has cause of action to file the present suit? opd6. whether a valid notice has been served upon the defendant no. 1? opp7. whether the suit is bad for mis-joinder of parties? opd8. whether the suit is properly valued for the purposes of court fee and jurisdiction? opp9. whether the lease of the plaintiff over the suit land has since expired, if so, its effect? opp10. relief.the issues no. 1 to 4, 7, and 9 were answered in negative, issues no. 5 and 6 were decided in affirmative and under issue no. 8, it was held that the suit was properly valued and ultimately the suit was dismissed by learned trial court on 26.5.1997. in appeal learned addl. district judge on 27.7.1998 affirmed the judgment, decree of learned trial court. hence this appeal which has been admitted on the following substantial question of law:whether both the courts below have misread and misinterpreted the documentary evidence on record to come to the conclusion that the suit land corresponds to pre-settlement khasra no. 199 min and not to presettlement khasra nos. 187, 193 and 194 as alleged by the appellant plaintiff?5. i have heard mr. ajay sharma, advocate, learned counsel for the appellant, mr. anshul bansal, learned addl. advocate general for respondent no. 1 and mr. sandeep chauhan, advocate, learned counsel for respondent no. 2 and have also gone through the record. the learned counsel for the appellant has submitted that demarcation report ex.pw-2/a has not been properly appreciated by the two courts below. the two courts below have misread and misinterpreted the documentary evidence on record to come to the conclusion that the suit land corresponds to presettlement khasra 199 and not to pre-settlement khasra nos. 187, 193 and 194. he has also submitted that learned lower appellate court has not decided the application under order 14 rule 5 cpc which has caused prejudiced to the appellant. the learned counsel for the appellant has ultimately submitted that the case be remanded to learned lower appellate court, for deciding application under order 14 rule 5 cpc. the learned addl. advocate general and learned counsel appearing on behalf of respondent no. 2 have supported the impugned judgment. they have submitted that the last settlement had taken place long time back. the appellant accepted the settlement and as after thought he had filed the suit in which again appellant has failed to establish his case.6. the appeal has not been admitted on substantial question of law covering effect of non-consideration of application dated 6.3.1998 under order 14 rule 5 read with section 151 cpc which was filed by the appellant in the learned lower appellate court. in the said application, the appellant had prayed for framing of additional issue, whether the revenue entries prepared during current settlement are illegal, fictitious and are not binding upon the appellant and same were liable to be rectified in the revenue record. in the application it was also prayed, whether the khasra nos. 451/1, 448/1, 441/1, 440/1, 439/1 471/1 and khasra no. 451 were the part of khasra nos. 187, 194 and 193 prior to settlement, if so whether it is to be rectified. the perusal of impugned judgment, decree would show that this application was not pressed by the appellant at the time of hearing and therefore, it will be deemed to have been not pressed and in second appeal the appellant can not be heard to say anything on this application. in any case, the claim of the appellant in the plaint is that during settlement his land was wrongly shown to be owned and possessed by respondents. the issue no. 1 framed by the learned trial court is broad enough to cover the additional issue suggested by appellant in the application under order 14 rule 5 read with section 151 cpc. the non-framing of additional issues as suggested by appellant has not caused any prejudice to the appellant, therefore, the contention of the appellant for framing of additional issues or remanding the case to learned lower appellate court, for deciding application under order 14 rule 5 cpc is rejected.7. the learned counsel for the appellant has heavily relied on ex.pw-2/a certified copy of local commissioner report. pw-2 pandit ram rattan in whose statement certified copy ex.pw-2/a was placed on record has stated that when he went on the spot he did not issue any notice to the state. pw-1 mangat ram in his statement has stated that at the time of settlement he was on the spot. he filed an application in the tehsil in the year 1974 but no action was taken on that application, therefore, he filed the suit. as per report ex.pw- 2/a, the settlement took place in the year 1971-72. the learned counsel for the appellant is not in a position to say whether report ex.pw-2/a was accepted or rejected in case no. 203/84 decided on 16.6.1984 by learned sub judge ist class, kangra. pw-2 pandit rattan chand has stated that state was not party in the suit in which he had submitted report ex.pw-2/a. therefore, report ex.pw-2/a is not binding on respondent no. 1.8. pw-1 mangat ram in his statement has stated that he was present at the time of the settlement. he filed an application before tehsildar but no action was taken on that application. in the plaint the appellant has stated nothing about filing of application before the tehsildar regarding settlement. the appellant had filed the suit on 16.12.1987. in other words the suit was filed after 15/16 years of the settlement and after 13 years of the filing of the application by appellant before the tehsildar. the appellant in the plaint has however, pleaded that his land in the settlement has been illegally included in the land shown to be owned by respondents. there is no averment in the plaint that settlement was not conducted properly, no procedural defect in the settlement was pleaded nor proved. there is no evidence in support of the case pleaded by appellant except local commissioner report ex.pw-2/a of another case in which respondent no. 1 was not a party. there is nothing on record to show whether report ex.pw-2/a was accepted or rejected by the court in the suit in which ram rattan was appointed as local commissioner. in these circumstances ex.pw-2/a cannot be relied in support of the case of the appellant.9. the appellant has prayed declaration in the suit with respect to land comprised in khasra nos. 451/1, 448/1, 441/1, 440/1, 439/1, 471/1, 447, 446 and 438 total measuring 0-06-60 hects. in para-3 of the plaint, the appellant has pleaded that in the settlement the suit land has been included in new khasra nos. 451, 425, 448, 441, 440, 439, 471, 447, 446, and 438 but no prayer and declaration has been made in the suit with respect to khasra no. 425. in missal haquiat ex.p-7, the khasra nos. 471, 438, 439, 441, 446, 447, 448 and 440 are shown to have old khasra no. 199 min owned by panchayat deh. in missal haquiat ex.p-6, the new khasra no. 425 has been shown equivalent to old khasra no. 189. in ex.p-2 jamabandi 1982-83 khasra no. 425 is recorded in the ownership of sant ram, ram kishan dass, lehari ram, kartar singh, kapoor singh, amar singh, dharam singh and in ex.p-2 khasra no. 451 is recorded in the ownership of rattan chand. in missal haquiat ex.p- 9, khasra no. 451 min has been shown equivalent to old khasra no. 195 min. thus, in the revenue record, no part of the suit land was shown having old khasra nos. 187, 194 and 193. the appellant has placed no legal evidence on record to show that khasra nos. 451, 425, 448, 441, 440, 439, 471, 447, 446, 438 or any part thereof before settlement was owned by appellant. the two courts below have concurrently recorded the findings against the appellant. it has not been pointed out that material evidence has not been considered or inadmissible evidence has been taken into consideration by the two courts below. in the second appeal the evidence cannot be re-appreciated. the substantial question of law noticed above is answered 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.