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Nanda Vs. Punnu Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberR.S.A. No. 151 of 1980
Judge
Reported inAIR1982HP38
ActsEvidence Act, 1872 - Sections 35 and 114
AppellantNanda
RespondentPunnu Ram and ors.
Appellant Advocate Kedar Ishwar, Adv.
Respondent Advocate Chhabil Dass, Adv.
DispositionAppeal allowed
Cases ReferredShiv Ditta v. Kidar Nath
Excerpt:
property - redemption - x owner of disputed property - mortgaged disputed property in favour of y - respondent had filed petition seeking redemption and possession of disputed property without payment of mortgage money on ground that disputed property was gifted to him - appeal - effect of mutation proceedings is that entries are made to which a rebuttable presumption of correctness attaches - mutation proceedings do not determine right and title of property - respondent failed to prove that gift was made in his favour - respondent not entitled to redemption of disputed land. - .....transferred by an oral gift in 1970 in his favour by beej ram while according to the defendant the suit property had been transferred in his favour in 1956 and beej ram was not the owner of the same in 1970, the defendant also contested the right and title of the plaintiff as the mortgagor-owner.12. the fact that the defendant-appellant has failed to prove the transfer of ownership with respect to the disputed property was conceded by the appellant's counsel, and the claim of theappellant regarding ownership was not pressed, 13. now the only point for determination in the present appeal is as to whether the plaintiff has succeeded in proving issues 1 and 5. the legal pro-position that the plaintiff has to succeed upon the strength of his own casa and not upon the weaknesses of the.....
Judgment:

V.P. Gupta, J.

1. This is a defendant's appeal against the judgment and decree, dated 9th Oct. 1980, passed by the Additional District Judge Kangra at Chamba, by which the appeal of the plaintiff-respondent was accepted and the judgment and decree, dated 24th Oct., 1979, passed by the Sub Judge, Dalhousie, dismissing the suit of the plaintiff-respondent, was set aside,

2. The brief facts are that the plaintiff-respondent No. 1 filed a suit seeking declaration that the order of the Collector, dated 30th Mar, 1972 (Exhibit PJ) is null, void and ineffective on the rights of the plaintiff, and that the plaintiff is entitled to redeem the disputed property. The plaintiff also prayed that he be granted a decree for possession of the disputed property, bearing khasra numbers 137, 147, 154, 158, 171 and 180 situate in Mohal Ghanetar, Pargana Kihar, Tehsil Churah, District Chamba, without payment of any mortgage amount. It is alleged that one Beej Ram was the owner of the disputed property and he had mortgaged the same withNanda (defendant No. 1) and Jai Dayal deceased (father of defendant Number 2 and husband of defendant No. 3) for Rs. 500/- by a mutation in the year 1956 (Exhibit PG).

The plaintiff further alleged that the aforesaid Beej Ram gifted this property in his favour on 24th Mar., 1970, along with the property measuring 2 bighas 3 biswas of Khasra number 135 and the mutation regarding this gift was sanctioned on 27th Mar., 1970 (Exhibit PB). On these grounds the plaintiff has alleged that he is the owner of the disputed property and is entitled to get its possession by redemption from the defendants because there is a relationship of mortgagor and the mortgagee between the parties, It is also alleged that the defendants have realised profits which are many times more than the principal mortgage amount, and therefore, the plaintiff is entitled to seek possession of the land by redemption without payment of any mortgage money. This suit was filed in the court on 20th April, 1972.

3. Defendant No. 1 contested the claim of the plaintiff and alleged that he is the owner of the disputed land, because Beej Ram had, in fact, sold the disputed land to defendant No. 1 and that he is in possession of the same as an owner from 13th Chet Sambat 2012. Regarding khasra number 135 for which mutation had also been sanctioned in favour of the plaintiff, the defendant No. 1 admitted that he is the owner of this land, measuring 2 bighas 3 biswas. Defendant No. 1 also denied the title of defendants 2 and 3 with respect to the disputed land. It was also alleged that the plaintiff has no right of redemption and the suit of the plaintiff should be dismissed. Title of the plaintiff with respect to the disputed land and his right to redeem was denied by defendant No. 1.

4. Defendants 2 and 3 filed a separate written statement and they admitted the plaintiff's claim,

5. Replication was filed by the plaintiff and after the replication the following issues were framed:

1. Whether the relationship of mortgagor and mortgagee exists between the parties with regard to the disputed land?

O. P. P.

2. Whether Rs. 500/- is the mortgagemoney?

_ O. P. P.

3. Whether the defendants have enjoyed benefits of mortgaged propertyworth more than two times and theplaintiff is entitled to get the suit landredeemed without paying mortgagemoney?

O. P. P.

4. Whether order of the Collector,Churah dated 30-3-1972 is wrong illegaland liable to be set aside?

O. P. P.

5. Whether Bij Ram had validly gifted away the disputed property in favourof the plaintiff on 27-3-1972, (sic) andif so, its effect on the suit?

O. P. P.

6. Whether the suit is within time?

O. P. P.

7. Whether the suit is properly stamped for the purposes of court-fee andjurisdiction?

O. P. D.

8. Whether the defendant No. 1 has validly purchased the suit land from Beej Ram through a writing dated 13th Chetra, 2012, if so, its effect on the suit? O.P.D.-19. Whether defendants Nos. 1 & 2 have connived with the plaintiff, if so, its effect on the suit? O.P.D.-l,

10. Relief.

6. The Subordinate Judge, Dalhousie, vide his judgment and decree, dated 3rd July, 1976 decreed the plaintiff's suit. The defendant filed an appeal and vide order, dated 21st Mar. 1977, the Additional District Judge, Chamba, accepted the appeal, and remanded the case to the court of Sub Judge for re-decision. After remand, the Sub Judge, dismissed the suit vide his judgment and decree, dated 15th May, 1978, The plaintiff filed an appeal and the Additional District Judge, vide his judgment and decree, dated 26th Oct. 1978, again remanded the case to the court of Sub Judge for a fresh decision, The suit was again dismissed by the Sub Judge on 24th Oct. 1979. Against this judgment and decree of the Sub Judge, an appeal was preferred by the plaintiff which was accepted by the Additional District Judge on 9th Oct. 1980, and it is against this judgment and decree of the Additional District Judge that this regular second appeal has been filed by the defendant-appellant.

7. I have heard Shri Kedar Ishwar, Advocate for the appellant and Shri Chhabil Dass, Advocate for the respondent No. 1.

8. The learned counsel for the appellant only contested the findings on issues Nos. 1 and 5, and contended that Punnu Ram plaintiff is not proved the owner of the disputed property and for this reason he is not liable to claim possession by redemption. It was contended that it is not proved that the ownership of the disputed property was ever transferred to the plaintiff. He has referred to the statements of Beej Ram (PW 2), the plaintiff (PW 3), and the mutation, Exhibit PB, in support of his contentions.

9. The learned counsel appearing on behalf of the respondent contended that Beej Ram (PW 2) has not at all stated that he did not appear before the Revenue Officer at the time of the sanction of the mutation, Exhibit PB, and the order incorporated in this mutation is a sufficient proof of the fact that the plaintiff is the owner of he disputed property, It was also contended that this fact is further evident from the conduct of the defendant-appellant before the Additional District Judge and the written statement filed by him, The learned counsel laid great emphasis upon the fact that in the written statement filed by the defendant-appellant he had admitted the plaintiff to be the owner of Khasra No. 135 (not in dispute) and that, in fact, the disputed property along with khasra No. 135 was transferred to the plaintiff by one gift which is evidenced by Exhibit PB.

10. I have considered the contentions of the learned counsel for the parties and have also gone through the records of the case.

11. It is admitted that previously Beej Ram was owner of the disputed property as well as khasra No. 135, According to the plaintiff the disputed property was transferred by an oral gift in 1970 in his favour by Beej Ram while according to the defendant the suit property had been transferred in his favour in 1956 and Beej Ram was not the owner of the same in 1970, The defendant also contested the right and title of the plaintiff as the mortgagor-owner.

12. The fact that the defendant-appellant has failed to prove the transfer of ownership with respect to the disputed property was conceded by the appellant's counsel, and the claim of theappellant regarding ownership was not pressed,

13. Now the only point for determination in the present appeal is as to whether the plaintiff has succeeded in proving issues 1 and 5. The legal pro-position that the plaintiff has to succeed upon the strength of his own casa and not upon the weaknesses of the defendant is not disputed. The plaintiff relied upon mutation, Exhibit PB, in support of his case, The order passed by the Revenue Officer in Exhibit PB re-cites that the plaintiff and Beej Ram were present before the Revenue Officer on 27th Mar, 1970, and Beej Ram accepted the factum of transfer by an oral gift, Beej Ram had also stated that he has one married daughter and that the plaintiff is his nephew. He further stated that plaintiff is rendering services to him and possession of the disputed property has also been given to plaintiff. The Revenue Officer on the basis of statements of the plaintiff and Beej Ram sanctioned the mutation on 27th March, 1970, Beej Ram and Punnu Ram plaintiff were identified by one Mussadi Ram, Pradhan Gram Panchayat, This mutation was entered on the basis of rappat roznamcha Nos. 272 and 275. dated 24th Mar, 1970, The oral gift is also stated to be of 24th Mar. 1970.

14. The object of mutations is to keep the entries in the record of rights up-to-date. The record of rights have a presumption of correctness under the provisions of the land Revenue Act. The mutation proceedings by themselves do not determine the question of right and title and the presumption of correctness attaching to the entries of mutation as well as the record of rights is rebut-table in view of these facts, the value of Exhibit PB is to be adjudged.

15. The plaintiff has not produced the rappat roznamcha Nos. 272 and 275 upon the basis of which the mutation, Exhibit PB, was entered. These rappat roznamchas could show as to who had made the reports regarding the oral gift to the Patwari, The concerned Patwari who entered these reports has also not been produced. Mussadi Ram Pradhan identified Beej Ram and the plaintiff before the Revenue Officer on 27th March 1970 and Shri Basant Singh, Revenue Officer, passed the order, but both these persons have also not been produced.

The plaintiff has produced Beej Ram (the alleged donor) as PW 2, but Beej Ram has not supported the plaintiffs case, He has stated that he never made any gift of the disputed property in plaintiffs favour. The plaintiff while appearing as PW 3 has stated that Beej Ram has gifted the disputed property to him and had also delivered the possession of the same to him. The plaintiff further stated that this gift was unconditional and was the outcome of the free will of Beej Ram,

16. It is worthwhile to note that there are no subsequent record of rights in which the entries of mutation have been incorporated or the transaction of gift is given effect to. In these circum-stances, specially when the gift is oral and this transaction is not admitted by PW 2, Beej Ram (the owner and the alleged donor), much reliance cannot be placed upon the order, dated 27th Mar. 1970. passed in mutation, Exhibit PB. The plaintiff has failed to prove that Beej Ram had appeared on that date and accepted the oral gift. The plaintiff to prove this fact could produce Mussadi Ram or the Revenue Officer or the Patwari concerned, but he has failed to do so,

17. The learned counsel for the plaintiff-respondent relied upon Lala v. Sardara (AIR 1934 Lah 472), and Nizam Din v. Godar (AIR 1934 PC 40) in support of his contentions, Both these authorities are distinguishable, In Nizam Din's case (supra) a mutation had been sanctioned in 1892 and on the basis of this mutation, entries in the record of rights had been incorporated. These entries were continuing till the year 1920, i.e. for a period of about 28 years. Their Lordships of the Privy Council in these circumstances held that the onus of proof that the order of mutation is false (which had been incorporated in the record of rights) is on the person who wants to prove the same to be false. The authority Lala (supra) only follows this Privy Council authority,

18. On the contrary, a Division Bench of this Court in Shiv Ditta v. Kidar Nath, ((1971) 1 Sim LJ 1) ; (AIR 1972 Him Pra 20 at p, 23) has held :

'The effect of the mutation proceedings is that entries are made to which a rebuttable presumption of correctness at-taches. The mutation order has not the effect of res judicata. Mutation proceedings do not certainly determine questions of right and title, The presumption of correctness of entries can be repelled by direct oral evidence.' In these circumstances, I am of the view that the plaintiff has not been able to prove that an oral gift had been made in his favour by Beej Ram owner by mutation, Exhibit PB, and, therefore, he has no right to claim redemption of land from the defendant,

19. As to the factum that defendant No. 1 has admitted the plaintiff to be the owner of khasra No. 135, measuring 2 bighas 3 biswas, the same is not material for the present controversy because the defendant is a stranger to the trans-action of gift, Exhibit PB, and he is only defending his rights with respect to the disputed property. The defendant-appellant has no right or interest whatsoever in khasra No. 135 and, therefore, his admission that the plaintiff is the owner of khasra No. 135 is irrelevant in this suit.

20. No other point was urged before me.

21. As a result of the above discussion, this appeal succeeds. The decree and judgment passed by the Sub Judge is restored and that of the Additional District Judge is set aside, The suit of the plaintiff is dismissed.

22. The parties are left to bear their own costs throughout.


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