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Union of India (Uoi) and ors. Vs. Nand Kishore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberFirst Appeal Nos. 5 and 7 of 1963
Judge
Reported inAIR1966HP54
ActsEvidence Act, 1872 - Sections 35, 90 and 92; ;Limitation Act, 1908 - Schedule - Articles 142 and 144
AppellantUnion of India (Uoi) and ors.
RespondentNand Kishore and ors.
Appellant Advocate L.N. Sethi, Adv. in F.A. No. 5 of 1963 and; Ved Vyas, Adv. in F.A. No. 7 of 1963
Respondent Advocate Ved Vyas, Adv. in F.A. No. 5 of 1963 and L.N. Sethi, Adv. in F.A. No. 7 of 1963
DispositionAppeals dismissed
Cases ReferredGhanaya v. Mehta.
Excerpt:
- .....chari, (upper and lower chari), pukhar, along with namasi, in favour of ganga devi, and her son, devi chand. during the recent regular settlement operations in chamba district, the cultivable land, situated in chari and pukhar villages, granted on the basis of ex. pw. 9/a, was mutated in the ownership of devi chand. bill namasi was not mutated, in his name it was recorded, as owned, by the himachal pradesh government. devi chand put in an application that, besides cultivable land, namasidhar forest was also granted on the basis of ex. pw. 9/a and that it should also be recorded in his ownership. devi chand died during the pendency of the application. his sons, appellants in civil regular first appeal no. 7 of 1963, (hereinafter referred to as the appellants) prosecuted the application......
Judgment:

Om Parkash, J.

1. This judgment will dispose of Civil Regular First Appeals Nos. 5 and 7 of 1968. These are cross-appeals and are directed against the judgment and decree dated the 30th September, 1963, of the learned Senior Subordinate Judge, Chamba. The facts, giving rise to the appeals, are as follows :

2. Maharaja Sham Singh, Ruler of erst while Chamba State, had, by the deed Ex. P. W. 9/A, dated the 2nd May, 1893, made an inam grant of land measuring 7 laharies (one lahari equivalent to three acres), 2 acres, 6 kanals and 6 marlas situated in villages Uperli and Jhikli Chari, (upper and lower Chari), Pukhar, along with Namasi, in favour of Ganga Devi, and her son, Devi Chand. During the recent regular settlement operations in Chamba District, the cultivable land, situated in Chari and Pukhar villages, granted on the basis of Ex. PW. 9/A, was mutated in the ownership of Devi Chand. Bill Namasi was not mutated, in his name it was recorded, as owned, by the Himachal Pradesh Government. Devi Chand put in an application that, besides cultivable land, Namasidhar forest was also granted on the basis of Ex. PW. 9/A and that it should also be recorded in his ownership. Devi Chand died during the pendency of the application. His sons, appellants in Civil Regular First Appeal No. 7 of 1963, (hereinafter referred to as the appellants) prosecuted the application. The Settlement Officer Chamba, dismissed the application, on the 7th January, 1959, holding that only cultivable land was granted, on the basis of Ex PW9/A, and that the grant did not include any area in Namasidhar forest, Ex. DA is the copy of the order of the Settlement Officer, The appellants went up in appeal to the Financial Commissioner against the order of the Settlement Officer. Their appeal was dismissed on 11th December, 1969. Ex. PW. 16/D is the copy of the order of the Financial Commissioner.

3. The appellants, then, filed the suit, out of which, the present appeals have arisen, for a declaration that an area, measuring 4152 Bighas and 8 Biswas, in Namasidhar forest was also granted to their predecessors-in-interest, on the basis of Ex. PW. 9/A and that they were the owners of that area and the entries, in the revenue records, showing the aforesaid area in the ownership of the Himachal Pradesh Government were incorrect and of no effect. The appellants, also, prayed for possession of the aforesaid area. The suit was instituted against the Union of India, the Himachal Pradesh Government and the Collector, Chamba, (hereinafter referred to as the respondents).

4. The respondents denied that the Ruler of Chamba had made any inam grant in favour of the predecessors-in-interest of the appellants. It was pleaded that if it be held that any such inam grant was made, it did not cover any area of Namasidhra forest and the entries, in the revenue records, showing that dhars in the ownership of Himachal Pradesh Government were correct. Preliminary objections were, also, taken up, on behalf of the respondents. It was pleaded that notice, under Section 80 C. P. C., was not served on the respondents, that the suit was not properly valued for purposes of jurisdiction and Court-fees and that it was barred by time.

5. The learned Senior Subordinate Judge held that proper notice, under Section 80 C. P. C., had been served on the respondents, that the suit was properly valued for purposes of jurisdiction and Court-fees and correct Court-fee was paid and that the suit was within limitation. He, further, held that an inam grant had been made to the predecessors-in-interest of the appellants, on the basis of Ex. PW. 9/A, and that, besides cultivable land, some area in Namasidhar forest was also granted. The details of that area were not given in Ex. PW9/A. From the extrinsic evidence, adduced by the appellants, and the conduct of the parties, the learned Senior Subordinate Judge came to the conclusion that an area measuring 882 Bighas and 16 Biswas, comprised in the present Khasra. Nos. 1 and 599, situated in village Phagri, in Namasidhar, and not an area measuring 4152 Bighas and 8 Biswas, as claimed by the appellants, was granted to their predecessors-in-interest. As a result of his findings, the learned Senior Subordinate Judge passed a decree for declaration of ownership and possession, with respect to the aforesaid 882 Bighas and 16 Biswas. The suit of the appellants with respect to the remaining area was dismissed.

6. Both the parties felt aggrieved by the decision of the learned Senior Subordinate Judge and have come up in appeal to this Court. The appellants have filed Civil Regular First Appeal No. 7 of 1963. The respondents have filed Civil Regular First Appeal No. 6 of 1963. The plea of the appellants is that their predecessors-in-interest were granted 4162 Bighas and 8 Biswas in Namasidhar forest and their claim should have been decreed in full. The plea of the respondents, on the other hand, is that no area was granted in Namasidhar forest and that the suit of the appellants should have been dismissed in toto.

7. The important point, which requires decision in the appeals, is whether any inam grant was made to the predecessors-in-interest of the appellants, by Maharaja Sham Singh, Ruler of Chamba State, and if so, what was its extent. The appellants rely upon Ex. PW. 9/A for proving the inam grant. Ex PW. 8/A is the transliteration of Ex. PW. 9/A. The deed of grant, Ex. PW. 9/A, purports to bear the signature of Maharaja Sham Singh. It is dated the 2nd May, 1898. It was nearly seventyyears old when tendered in evidence. The appellants, who are the heirs of the grantees, had produced the deed. It was, therefore, produced from proper custody. A presumption arose, under Section 90, Evidence Act, that the deed bore the signature of Maharaja Sham Singh and that it was duly executed. The presumption was strengthened by the evidence of Shri Narain Singh P.W.9, a retired Superintendent, Revenue Forest, Chamba, State. Shri Narain Singh stated that the deed Ex. PW. 9/A bore the signature of Maharaja Sham Singh. The respondents did not lead any evidence to prove that the deed Ex. PW. 9/A did not bear the signature of Maharaja Sham Singh and was not properly executed. In fact, the respondents had accepted, and acted upon, Ex. PW. 9/A, by mutating the cultivable land, mentioned therein, in favour of Devi Chand, vide the order of the Settlement Officer, Chamba, copy Ex. DA and the order of the Financial Commissioner, Himachal Pradesh, copy Ex. PW. 16/D. It stood proved that an inam grant was made by Maharaja Sham Singh on the basis of the deed Ex. PW. 9/A.

8. The next question is what was the extent of the inam grant. The deed Ex. PW. 9/A specifies the area of cultivable land, granted. The land measured 7 laharies, 2 acres, 6 kanals and 5 marlas. The land was situated in villages Upperli and Jhikli Chari and Pukhar. After the description of the cultivable land, the words 'Namasi Samet' (along with Namasi) occur in the deed. The grant was made in favour of Ganga Devi, a mistress of Wazir Gobind Chand and her son Devi Chand. The deed enjoins that the descendants of Maharaja Sham Singh would fulfil the Dharam i.e., would honour and respect the obligation, under the grant. The deed, further, lays down that the grantees would not, in any way, interfere with the rights of the Zamindars.

9. A deed of grant is to be interpreted and construed according to the plain and the ordinary meanings of the words, used therein The words, used in Ex P.W. 9/A, and the terms contained therein, indicate that the inam grant, in favour of Ganga Devi and Devi Chand, was absolute, heritable and was made in perpetuity. This has not been disputed, on behalf of the respondents. The cultivable land, granted, had been mutated in favour of the appellants, after the death of Devi Chand.

10. The controversy centres round the point, whether any area in Namasidhar forest was granted or not. The deed Ex PW. 9/A, as already stated, contains the words, 'along with Namasi' after the description of the cultivable land The argument on behalf of the respondents, was that the words, 'along with Namasi' were used simply to denote the location of the cultivable land. This argument does not appeal to be sound. The location of the cultivable land, granted, was denoted by naming the villages, in which the land was situated. It was unnecessary to add the words 'Namasi Samet', to denote the location of the cultivable land.

No word, in a deed of grant, is to be regarded as unnecessary or redundant. Effect is to be given to the words, 'Namasi Samet', used in Ex. PW. 9/A. These words indicate that besides cultivable land, 'Namasi', was also granted to Ganga Devi and Devi Chand. The word 'Namasi' is vague and does not, by itself, lead to the inference that any area, in Namasidhar forest was granted. But the ambiguity about 'Namasi' is a latent one and extrinsic evidence was admissible, under proviso 6, Section 92, Evidence Act, for resolving the ambiguity and for showing that the word, 'Namasi' related to some existing state of things. It was held in Subramania Iyer v. Rajeswara Sethupathi AIR 1918 Mad 1167, that where, in a deed, the description of the property is defective, extrinsic evidence is admissible to show what property was meant by the words used and whether a particular piece of property was covered by the description. It is, also, a settled rule of construction that, for clearing ambiguities, in ancient documents, resort may be had to any contemporaneous usage.

11. The appellants produced evidence to prove that during the State regime, forests had not been measured and that, therefore, in the grants, made, by the Ruler, details of the forest area, granted, were not given and only the name of the forest was specified. Ex. PW. 16/A to Ex. PW. 16/C are copies of orders of the Settlement Officer, Chamba, relating to grants, made by the Ruler of Chamba State, to other persons. A perusal of these documents, clearly, indicates that forest had not been measured in Chamba State and that grants, made by the Ruler, mentioned only the name of the forest, without giving the boundaries or the details of the area Shri Chattar Singh PW. 11, who was Revenue Assistant in Chamba State, and is now a Member of Parliament, stated that forests had not been measured in Chamba State and that the grants, made by the Ruler, specified only the name of the forest. The above evidence discloses that as the forests had not been measured in Chamba State, the practice with the Ruler of Chamba, was to give only the name of the forest, in the grant, without specifying its area or the boundaries. This explains why only 'Namasi' was mentioned in Ex. PW. 9/A, and its area or boundaries were not given.

12. There is evidence, on record, that the officials, working in Chamba State, recognized that Devi Chand, father of the appellants, had interest in Namasidhar forest and that he had been exercising ownership rights over that forest. Shri Narain Singh PW. 9, who was Superintendent, Revenue, Forest, in Chamba State, deposed that Namasidhar was granted to Devi Chand and that the State did not auction this dhar, though it auctioned other dhars. Shri Chattar Singh PW. 11 and Shri Kishen Chand PW. 12, who were respectively, Revenue Assistant and Tehsildar, in Chamba State, deposed that during the course of their official duties, they had come to know that Devi Chand had some interest in Namasidhar. PWs. 1 to 7, who belong to village Chari, stated that they had been grazing cattle in Namasidhar and paying small quantity of ghee, as grazing charges, to Devi Chand. The fact that Devi Chand exercised rights of ownership over Namasidhar and that his interest in that dhar was recognized by the officials of Chamba State leads to the inference that the word 'Namasi', in Ex. PW. 9/A, was intended to refer to Namasidhar forest.

13. An effort was made, on behalf of the respondents, to prove that it was the Forest Department, which was exercising control over Namasidhar, and not Devi Chand. Shri K.S. Negi DW. 1, Range Officer, stated that Namasidhar was leased by the Forest Department in 1930, Neither any lease deed nor any other documentary evidence was produced to corroborate the statement of Shri K.S. Negi. The witness had no personal knowledge of the lease as he had never served in Chamba State and was posted to Chamba District, in 1958, for the first time. The evidence of Shri K.S. Negi that the Forest Department had leased Namasidhar in 1930 is hearsay and cannot be relied upon. Shri Brahma Nand DW. 3, another Range Officer, stated that Namasidhar was leased by the Forest Department in 1948. No documentary evidence was produced in support of the statement of this witness. Presumably, there must have been a lease deed and other documentary evidence relating to the lease. The non-production of the documentary evidence, which presumably existed, raises an adverse inference against the statement of Shri Brahma Nand. The only circumstance, proved by the respondents, was that the Forest Department, Himachal Pradesh, was issuing grazing permits for Namasidhar forest since 1952. This circumstance does not detract from the case of the appellants. It is consistent with their case that Devi Chand was exercising rights of ownership over Namasidhar till it was mutated in the name of the Himachal Pradesh Government during the recent settlement operations, in 1952. No wonder that, after the mutation was sanctioned in the name of the Himachal Pradesh Government, the Forest Department exercised control over Namasidhar. The appellants are challenging the correctness of the above mutation.

14. The extrinsic evidence, adduced by the appellants, leads to the conclusion that, besides cultivable land, Namasidhar was also granted to the predecessors-in-interest of the appellants, on the basis of Ex. PW. 9/A. To avoid any possible confusion, it may be pointed out that the learned Senior Subordinate Judge has, in his judgment, referred to the dhar in dispute, as 'Pukhar Namasi' but in this judgment, the dhar has been referred to as 'Namasidhar, the reason being that the appellants, in their notices, under Section 80 C. P C., and the plaint, gave the name of the dhar, which was granted to their predecessors-in-interest, as Namasidhar.

15. As already stated, Ex. PW. 9/A does not specify the area or the boundaries of Namasidhar granted to the predecessors-in-interest of the appellants. The learned Senior Subordinate Judge, relying on Ex/PW. 16/F a copy of the Jamabandi, and the evidence of Shri Narain Singh PW. 9, came to the conclusion that the area, granted, measured 882 Bighas and 16 Biswas and was comprised in the present Khasra Nos. 1 and 599, situate, in village Phagri. Khasra No. 599 is named as Namasi in Ex. PW. 16/F Khasra No. 1 adjoins Khasra No. 699. The above two khasra Nos. are grazing grounds Khasra N. 1 being grazing ground with trees and Khasra No. 599 being grazing ground, without trees.

16. The conclusion, arrived at, by the learned Senior Subordinate Judge, that the predecessors-in-interest of the appellants were granted an area of 882 Bighas and 16 Biswas only was vehemently contested by the appellants Their contention was that an area measuring 4162 Bighas and 8 Biswas, or at any rate, much larger area than 882 Bighas and 16 Biswas, was granted. In support of their contention, the appellants placed reliance on Ex. PW. 16/E This document is a copy of a report of a Settlement Naib Tehsildar, submitted, in connection with, the application of Devi Chand for correction of the entries in the revenue records The Settlement Naib Tehsildar was of the opinion that Devi Chand was granted the area comprised in Khasra Nos. 1 and 599, as shown in the Jamabandi Ex. PW. 16/F, and also a major portion of the forest, East Chhabaroo, as shown in the Jamabamdi Ex. PW. 16/G. Neither the Settlement Naib Tehsildar nor the original report, submitted by him, was produced Ex. PW. 16/E, which is merely a copy, was not admissible in evidence.

The learned counsel for the appellants contended that the report of the Settlement Naib) Tehsildar was a public document, within the meaning of Section 35, Evidence Act, and its certified copy was admissible, without the production of the original or its writer This contention is not well founded. The words 'an entry' in Section 35, Evidence Act, are not intended to apply to the opinions of public officers, based on, or inferences drawn from, the allegations made before them in the course of inquiries, but are confined only to such statements of facts in issue or relevant facts as are made by the public officers concerned in the course of their official duty and are required to be entered in any book, register or record intended for the purpose, vide Ghanaya v. Mehta. AIR 1934 Lah 890.

The report of the Settlement Naib Tehsildar constituted merely his opinion based on allegations, made before him. It could not be regarded as an entry in any public or other official record within the meaning of Section 35, Evidence Act. Moreover the very wording of the aforesaid section conveys the idea that the entry will be of a permanent nature and excludes all such writing as are merely of an ephemeral character Another idea which runs underneath the section is that the person making the entry should be such as is invested with authority to record a decision which so far as the matter before him is concerned will be final. It, thus, excludes all views expressed before the final stage is reached and makes only those decisions relevant which constitute the final word in the matter, vide Ghulam Mohammad Khan zSamundar Khan, AIR 1936 Lah 37

In the instant case, the Settlement Naib Tehsildar was not invested with authority to record a final decision in the matter of correction of entries in the revenue papers. The final decision was to be taken by the Settlement Officer. The report, submitted by the Settlement Naib Tehsildar, was not accepted by the Settlement Officer. The report did not constitute the final word in the matter and could not be described as an entry in any public or official record, within the meaning of Section 36, Evidence Act. The copy of the record was not admissible in evidence.

17. There is nothing, on the record, to show that Namasidhar, granted to the predecessors-in-interest of the appellants, measured 4152 Bighas and 8 Biswas or more than 882 Bighas and 16 Biswas. The finding of the learned Senior Subordinate Judge that it measured 882 Bighas and 16 Biswas is supported by reasons. It has not been shown to be erroneous It is upheld.

18. The finding of the learned Senior Subordinate Judge that the suit of the appellants was within time is, also, to be upheld as already shown. Devi Chand had been exercising rights of ownership over the area granted in Namasidhar till 1952. The appellants had filed the suit on the 7th September, 1961, within 12 years of their dispossession of the area The suit was within limitation.

19. The finding of the learned Senior Subordinate Judge that proper notices, under Section 80 C. P. C., had been served on the respondents, has not been challenged, in the appeals.

20. So far as the question, relating to the value of the suit, for purpose of jurisdiction and Court-fees, is concerned, the learned counsel for the parties, made statements, in this Court, that the suit of the appellants, and the appeals, were properly valued and proper Court-fees were paid.

21. In conclusion, both the Civil Regular First Appeals Nos. 6 and 7 of 1968 are dismissed. The decree of the learned Senior Subordinate Judge is affirmed. The parties will bear their costs of both the appeals.


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