Dharam Singh Kapoor and ors. Vs. Om Parkash and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/890888
SubjectCivil;Property
CourtHimachal Pradesh High Court
Decided OnJul-29-2008
Judge Dev Darshan Sud, J.
Reported in2008(2)ShimLC370
AppellantDharam Singh Kapoor and ors.
RespondentOm Parkash and ors.
Cases ReferredShri Kirpa Ram and Ors. v. Smt. Maina
Excerpt:
- dev darshan sud, j.1. this is the plaintiff's appeal against the judgment and decree of the learned additional district judge, kullu reversing the judgment and decree passed by the learned trial court in a suit instituted by plaintiff sarfa ram granting him relief in the nature of a declaratory decree declaring him to be the owner of the suit land and further restraining the defendants from interfering in his possession permanently.2. the plaintiff had approached the court on the allegations that he had four brothers. namely; durga, saily, bhikha, defendants no. 1 to 3 and paras ram, since deceased, represented by defendants no. 4 to 8. according to the allegations made by him all of them jointly owned and possessed the suit land which was purchased by him and his brothers vide registered sale deed dated 18.9.1965 from pune ram, atma ram, kirpa ram krishan, jai chand for a consideration of 15,000/ - rupees and mutation no. 1164 was attested in their favour. this mutation was lateron reviewed behind his back on 5.2.1990 and his name was deleted from the revenue records. the learned trial court settled 11 issues holding two crucial issues, to the effect i.e. as to whether the plaintiff was the owner in possession of the suit land and whether the review proceedings were illegal, in favour of the plaintiff. the court held that the mutation was rightly attested and that the sale deed ex.dw-2/a which formed the basis of the claim of the plaintiff, had been tampered with. the learned trial court while considering the evidence of dw-2 has made detailed observations as to why the sale deed ex.dw-2/ a could not be relied upon. in appeal, the learned appellate court has reversed these findings holding the sale deed ex.dw-2/a to be genuine and valid as there is no proof on the record of any changes, interpolation etc. being made.3. this is a classical case where interminable disputes have arisen because of revenue entries being recorded at the whims of the revenue officer as held by the supreme court in baleshwar tewari (dead) by lrs. and ors. v. sheo jatan tiwary and ors. : [1997]3scr140 :15. ...entries in revenue records is the paradise of the patwari and the tiller of the soil is rarely concerned with the same. so long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with entries.before proceeding to discuss the relative merits of the questions raised by the plaintiff-appellant, i must observe that the revenue authorities are riding rough shod on the rights of the parties. but having said this, there is a preliminary hurdle in the way of the plaintiff-appellant for a declaration that he is the owner of the suit property. the proposition that revenue entries are not documents of title is by now well established. (see: corporation of the city of bangalore v. m. papaiah and anr. : air1989sc1809 , guru amarjit singh v. rattan chand and ors. ( 0065/1994 : air1994sc227 , guru amarjit singh v. rattan chand and ors. 0065/1994 : air1994sc227 , jattu ram v. hakam singh and ors. : air1994sc1653 , sawarni (smt.) v. inder kaur (smt.) and ors. : air1996sc2823 , state of h.p. v. keshav ram and ors. : air1997sc2181 , state of himachal pradesh v. keshav ram and ors. : air1997sc2181 , m.t.w.). in tenzing namgyal and ors. v. motilal lokhotia and ors. : [2003]1scr877 , it was held:33. ...ordinarily record-of-rights cannot be treated to have any evidentiary value on the question of title inasmuch as such records are prepared mainly based on possession.35. in sita ram bhau patil this court held : (scc p. 54, para 21).21. with regard to the record-of-rights counsel for the appellant said that presumption arises with regard to its correctness. there is no abstract principle that whatever will appear in the record-of-rights will be presumed to be correct when it is shown by evidence that the entries are not correct. apart from the intrinsic evidence in the record-of-rights that they refer to facts which are untrue it also appears that the record-of-rights have reference to the mutation entry that was made by the circle officer on 30.1.1956. counsel for the respondent rightly contended that no presumption could arise for two principal reasons. first, the oral evidence in this case nullified the entries in the record-of-rights as showing a state of affairs opposed to the real state of affairs and, second, no notice was ever given to the respondent with regard to mutation proceedings. therefore, the respondent is right in contending that no presumption can validly arise from the record-of-rights.37. furthermore, the plaintiffs claimed title over the suit land. the trial court in a case of this nature was bound to enquire or investigate into the question of title and could not have decreed the suit merely on the basis of the entries in the revenue records. (see nagar palika v. jagat singh.)4. no other precedent is required for this proposition which is now well settled. in these circumstances, a declaratory decree cannot be granted to the plaintiff only on revenue records unless a challenge is made to ex.dw-2/a (sale deed) as being a document having been obtained by fraud, interpolation etc.5. this appeal was admitted on substantial questions of law nos. 5 to 8, namely:(5) whether the suit of the appellant could have been dismissed especially when one of the defendants had the claim of the appellant being co-owner alongwith other brothers?(6) whether the impugned judgment and decree is the result of complete misinterpretation of provisions of sections 65 and 66 of the evidence act?(7) whether the appellant has been successful in proving that the documents, ext./dw-2/a, sale deed is a suspicious document and ought not to have been taken into consideration as has been rightly held by the trial court?(8) whether the impugned judgment and decree could have been passed by the learned lower appellate court especially when mutation no. 1164 was challenged by the defendants beyond the period of limitation?6. taking question no. 8 first, on the review of the mutation proceedings, there is no evidence on the record to show that the mutation proceedings deleting the name of the plaintiff as one of the owners have been taken in accordance with law. a mere entry showing that the permission has been obtained for review proceedings without in any manner proving such permission or placing on record the authorization which prompted the exercise of review powers in accordance with the provisions of the h.p. land revenue act cannot be accepted. such proceedings have been taken without any notice to the plaintiff. the learned trial court was perfectly justified in holding that review having been made without any justification, the proceedings as recorded in ex.dc are void and inoperative against the interest of the plaintiff.7. on question no. 7, the learned appellate court has gone awry. while considering the evidence of dw-2, the learned trial court has made detailed observations that the document itself is shrouded by suspicious circumstances. dw-2, registration clerk, in the office of the sub registrar, kullu, has stated in cross-examination that he cannot vouch the authenticity of the document without seeing the original. the learned trial court has made detailed observation while recording the evidence to the following effect:at this stage it was observed by the court that 1st page of copy of sale deed in question pasted at page 34 of the register of sale deeds was found cut at the bottom by about 2 inches and the cut portion about 2 inches was removed with the result that in the 1st line for figure 3/10 there was overwriting of figure 10 so far as 0 was concerned. in this manner the possibility of second page of sale deed pasted at page 35 of the register cannot be ruled out in connivance with the parties, deed writer and the registration clerk etc. it was also noticed that 1st page of the sale deed at page 34 was made out two sheets by joining them with gum which fact is also clear from some deleted writing at the back of 1st portion of the upper sheet with second portion of the downward sheet which contains the date and signatures of sub registrar and nothing more.8. these have been summarily brushed aside by the learned appellate court without in any manner considering the detailed observation as recorded by the trial court. to say the least the findings of the appellate court are conjectural. the appellate court being the final court of fact should have been more careful in considering the evidence and the observations which have been made by the learned trial court.9. learned counsel appearing for the respondents places reliance on a judgment of this court in shri kirpa ram and ors. v. smt. maina 2002 (2) shim. l.c. 213, holding that presumption of truth attaches to the certificate appended by the registrar under section 62 of the registration act. this principle can be invoked when there are no suspicious circumstances surrounding the execution of the deed. there are other documents on the record supporting the contention of the plaintiff that this land had in-fact been bought jointly by the parties. the learned appellate court has in this regard not considered ex.pw-6/a, suit filed by aut ram against parsa and others in which written statement ex.pw-7/a was filed by the defendants including parsa admitting the share of the plaintiff in the suit land. however, since the plaintiff has approached the court on the basis of title derived from a sale deed, no declaratory decree can be granted without there being proof of title on the basis of the title deed or an attempt to lead secondary evidence.10. the other two questions need not be considered as the declaratory relief to the plaintiff cannot be granted unless it is proved that the original deed was destroyed, lost etc. and permission to lead secondary evidence was sought.11. however, on the findings of the learned trial court that the appellant is in possession of the suit land, the possession of the plaintiff-appellant cannot be disturbed save in accordance with law. the finding on the possession of the appellants is confirmed.12. this appeal is accordingly disposed of. there shall be no order as to costs.
Judgment:

Dev Darshan Sud, J.

1. This is the plaintiff's appeal against the judgment and decree of the learned Additional District Judge, Kullu reversing the judgment and decree passed by the learned trial Court in a suit instituted by plaintiff Sarfa Ram granting him relief in the nature of a declaratory decree declaring him to be the owner of the suit land and further restraining the defendants from interfering in his possession permanently.

2. The plaintiff had approached the Court on the allegations that he had four brothers. Namely; Durga, Saily, Bhikha, defendants No. 1 to 3 and Paras Ram, since deceased, represented by defendants No. 4 to 8. According to the allegations made by him all of them jointly owned and possessed the suit land which was purchased by him and his brothers vide registered sale deed dated 18.9.1965 from Pune Ram, Atma Ram, Kirpa Ram Krishan, Jai Chand for a consideration of 15,000/ - rupees and mutation No. 1164 was attested in their favour. This mutation was lateron reviewed behind his back on 5.2.1990 and his name was deleted from the revenue records. The learned trial Court settled 11 issues holding two crucial issues, to the effect i.e. as to whether the plaintiff was the owner in possession of the suit land and whether the review proceedings were illegal, in favour of the plaintiff. The Court held that the mutation was rightly attested and that the sale deed Ex.DW-2/A which formed the basis of the claim of the plaintiff, had been tampered with. The learned trial Court while considering the evidence of DW-2 has made detailed observations as to why the sale deed Ex.DW-2/ A could not be relied upon. In appeal, the learned appellate Court has reversed these findings holding the sale deed Ex.DW-2/A to be genuine and valid as there is no proof on the record of any changes, interpolation etc. being made.

3. This is a classical case where interminable disputes have arisen because of revenue entries being recorded at the whims of the revenue officer as held by the Supreme Court in Baleshwar Tewari (Dead) by LRs. and Ors. v. Sheo Jatan Tiwary and Ors. : [1997]3SCR140 :

15. ...Entries in Revenue records is the paradise of the patwari and the tiller of the soil is rarely concerned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with entries.

Before proceeding to discuss the relative merits of the questions raised by the plaintiff-appellant, I must observe that the revenue Authorities are riding rough shod on the rights of the parties. But having said this, there is a preliminary hurdle in the way of the plaintiff-appellant for a declaration that he is the owner of the suit property. The proposition that revenue entries are not documents of title is by now well established. (See: Corporation of the City of Bangalore v. M. Papaiah and Anr. : AIR1989SC1809 , Guru Amarjit Singh v. Rattan Chand and Ors. ( 0065/1994 : AIR1994SC227 , Guru Amarjit Singh v. Rattan Chand and Ors. 0065/1994 : AIR1994SC227 , Jattu Ram v. Hakam Singh and Ors. : AIR1994SC1653 , Sawarni (Smt.) v. Inder Kaur (Smt.) and Ors. : AIR1996SC2823 , State of H.P. v. Keshav Ram and Ors. : AIR1997SC2181 , State of Himachal Pradesh v. Keshav Ram and Ors. : AIR1997SC2181 , M.T.W.). In Tenzing Namgyal and Ors. v. Motilal Lokhotia and Ors. : [2003]1SCR877 , it was held:

33. ...Ordinarily record-of-rights cannot be treated to have any evidentiary value on the question of title inasmuch as such records are prepared mainly based on possession.

35. In Sita Ram Bhau Patil this Court held : (SCC p. 54, para 21).

21. With regard to the record-of-rights Counsel for the appellant said that presumption arises with regard to its correctness. There is no abstract principle that whatever Will appear in the record-of-rights will be presumed to be correct when it is shown by evidence that the entries are not correct. Apart from the intrinsic evidence in the record-of-rights that they refer to facts which are untrue it also appears that the record-of-rights have reference to the mutation entry that was made by the Circle Officer on 30.1.1956. Counsel for the respondent rightly contended that no presumption could arise for two principal reasons. First, the oral evidence in this case nullified the entries in the record-of-rights as showing a state of affairs opposed to the real state of affairs and, second, no notice was ever given to the respondent with regard to mutation proceedings. Therefore, the respondent is right in contending that no presumption can validly arise from the record-of-rights.37. Furthermore, the plaintiffs claimed title over the suit land. The trial Court in a case of this nature was bound to enquire or investigate into the question of title and could not have decreed the suit merely on the basis of the entries in the revenue records. (See Nagar Palika v. Jagat Singh.)

4. No other precedent is required for this proposition which is now well settled. In these circumstances, a declaratory decree cannot be granted to the plaintiff only on revenue records unless a challenge is made to Ex.DW-2/A (sale deed) as being a document having been obtained by fraud, interpolation etc.

5. This appeal was admitted on substantial questions of law Nos. 5 to 8, namely:

(5) Whether the suit of the appellant could have been dismissed especially when one of the defendants had the claim of the appellant being co-owner alongwith other brothers?

(6) Whether the impugned judgment and decree is the result of complete misinterpretation of provisions of Sections 65 and 66 of the Evidence Act?

(7) Whether the appellant has been successful in proving that the documents, Ext./DW-2/A, sale deed is a suspicious document and ought not to have been taken into consideration as has been rightly held by the trial Court?

(8) Whether the impugned judgment and decree could have been passed by the learned lower appellate Court especially when mutation No. 1164 was challenged by the defendants beyond the period of limitation?

6. Taking question No. 8 first, on the review of the mutation proceedings, there is no evidence on the record to show that the mutation proceedings deleting the name of the plaintiff as one of the owners have been taken in accordance with law. A mere entry showing that the permission has been obtained for review proceedings without in any manner proving such permission or placing on record the authorization which prompted the exercise of review powers in accordance with the provisions of the H.P. Land Revenue Act cannot be accepted. Such proceedings have been taken without any notice to the plaintiff. The learned trial Court was perfectly justified in holding that review having been made without any justification, the proceedings as recorded in Ex.DC are void and inoperative against the interest of the plaintiff.

7. On question No. 7, the learned appellate Court has gone awry. While considering the evidence of DW-2, the learned trial Court has made detailed observations that the document itself is shrouded by suspicious circumstances. DW-2, Registration Clerk, in the office of the Sub Registrar, Kullu, has stated in cross-examination that he cannot vouch the authenticity of the document without seeing the original. The learned trial Court has made detailed observation while recording the evidence to the following effect:

At this stage it was observed by the Court that 1st page of copy of sale deed in question pasted at page 34 of the Register of Sale Deeds was found cut at the bottom by about 2 inches and the cut portion about 2 inches was removed with the result that in the 1st line for figure 3/10 there was overwriting of figure 10 so far as 0 was concerned. In this manner the possibility of second page of sale deed pasted at page 35 of the register cannot be ruled out in connivance with the parties, Deed Writer and the Registration Clerk etc. It was also noticed that 1st page of the sale deed at page 34 was made out two sheets by joining them with gum which fact is also clear from some deleted writing at the back of 1st portion of the upper sheet with second portion of the downward sheet which contains the date and signatures of Sub Registrar and nothing more.

8. These have been summarily brushed aside by the learned appellate Court without in any manner considering the detailed observation as recorded by the trial Court. To say the least the findings of the appellate Court are conjectural. The appellate Court being the final Court of fact should have been more careful in considering the evidence and the observations which have been made by the learned trial Court.

9. Learned Counsel appearing for the respondents places reliance on a judgment of this Court in Shri Kirpa Ram and Ors. v. Smt. Maina 2002 (2) Shim. L.C. 213, holding that presumption of truth attaches to the certificate appended by the Registrar under Section 62 of the Registration Act. This principle can be invoked when there are no suspicious circumstances surrounding the execution of the deed. There are other documents on the record supporting the contention of the plaintiff that this land had in-fact been bought jointly by the parties. The learned appellate Court has in this regard not considered Ex.PW-6/A, suit filed by Aut Ram against Parsa and others in which written statement Ex.PW-7/A was filed by the defendants including Parsa admitting the share of the plaintiff in the suit land. However, since the plaintiff has approached the Court on the basis of title derived from a sale deed, no declaratory decree can be granted without there being proof of title on the basis of the title deed or an attempt to lead secondary evidence.

10. The other two questions need not be considered as the declaratory relief to the plaintiff cannot be granted unless it is proved that the original deed was destroyed, lost etc. and permission to lead secondary evidence was sought.

11. However, on the findings of the learned trial Court that the appellant is in possession of the suit land, the possession of the plaintiff-appellant cannot be disturbed save in accordance with law. The finding on the possession of the appellants is confirmed.

12. This appeal is accordingly disposed of. There shall be no order as to costs.