2017 (5) TMI 1753 - HC - Indian Laws

Suit for declaration, permanent prohibitory injunction - joint owners in possession of 1/2 share of the suit land - It is alleged by the plaintiff that entries in the revenue record qua the suit land in favour of the defendants are wrong and without having any right, title or interest in the suit land - HELD THAT - In the instant case, though this Court is of the view that learned first appellate Court exceeded its jurisdiction by creating new case for defendants while placing reliance upon Ex. P-1 and Ex. DX, more particularly, when no such plea of 'Azadinama' was ever raised/taken by the defendants in the pleadings as well as evidence adduced before the trial Court, but even then if findings returned by learned first appellate Court qua entitlement of defendants to 1/2 share in the suit property on the basis of aforesaid document is examined and tested in the light of aforesaid provisions of Registration Act, 1908, same cannot be held to be valid and in accordance with law. There is no relinquishment deed adduced on record by the defendants to prove their claim with regard to their having acquired 1/2 share in the suit land and as such learned first appellate Court erred in while placing reliance upon Ex. P-1, whereby, on the basis of oral Azadinama/relinquishment deed, 1/2 share in the suit land has been ordered to be mutated in the name of defendants. In the instant case, this Court is of definite view that no reliance, if any, could be placed by first appellate Court on 'Azadinama' Ex. P-1 to conclude that plaintiff had relinquished his 1/2 share in favour of the defendants, more particularly, in the absence of registered relinquishment deed, if any, executed by the plaintiff. Since there was no registered relinquishment deed, mutation attested in favour of defendants, on the basis of Ex. P-1 is/was of no consequence and same could not be taken into consideration by the Court below while holding the defendant to be owners to the extent of 1/2 share in the suit land - Similarly, this Court has no hesitation to conclude that there is/was no authority vested in Gram Panchayat to conduct partition proceedings on the basis of order passed by Deputy Commissioner or A.D.M., Bilaspur, which is admittedly not on record because partition of the land can only be effected by the authority as prescribed under Sections 122 and 123 of the H.P. Land Revenue Act. Moreover, partition deed Ex. DW-3/A, which was prepared on 15.5.1994, could not be prepared because admittedly the defendants had no pre-existing title in the suit land, as stands duly proved on record. Defendant himself has admitted that Munshi Ram was absolute owner in possession of the land which he had acquired as Nataur. Since this Court has already come to the conclusion, on the basis of aforesaid provision of law as well as material available on record, that no immovable property could be relinquished without there being registered document, mutation, if any, conducted on the basis of oral relinquishment/'Azadinama' as reflected in Ex. P-1 and Ex. DX has no bearing on the rights of plaintiff, who is absolute owner of the suit land and as such judgments relied upon by the learned counsel representing the defendants with regard to attestation of mutation in favour of defendants has no bearing in the present case and as such same are not discussed herein. This Court sees valid reason to interfere in the judgment passed by first appellate Court, which is apparently not based upon the proper appreciation of evidence as well as law - judgment passed by learned first appellate Court is quashed and set aside and that of the learned trial Court is restored.

Summary

Issues Involved:
1. Entitlement to declaration of ownership.
2. Legality of revenue entries.
3. Entitlement to permanent injunction.
4. Maintainability of the suit.
5. Estoppel against filing the suit.
6. Proper valuation for court fee and jurisdiction.
7. Suit being time-barred.

Issue-Wise Detailed Analysis:

1. Entitlement to Declaration of Ownership:
The plaintiff claimed ownership and possession of the suit land, alleging that the revenue entries in favor of the defendants were incorrect and without any right, title, or interest. The defendants contended they were joint owners with the plaintiff, as the land had been partitioned among them. The trial court decreed in favor of the plaintiff, but the first appellate court reversed this decision, citing an 'Azadinama' (relinquishment) by the plaintiff. However, the High Court found no specific plea or evidence of such 'Azadinama' in the defendants' written statement or witness testimonies. The High Court concluded that the first appellate court erred in relying on unregistered documents (Ex. P-1 and Ex. DX) to establish the defendants' ownership.

2. Legality of Revenue Entries:
The plaintiff challenged the legality of the revenue entries showing the defendants as joint owners. The defendants argued that these entries were correct based on a family partition and the alleged 'Azadinama.' The High Court determined that the revenue entries were not supported by a registered relinquishment deed, as required by Sections 17 and 49 of the Registration Act, 1908. Therefore, the entries were deemed illegal.

3. Entitlement to Permanent Injunction:
The plaintiff sought a permanent injunction to prevent the defendants from interfering with their possession of the suit land. Given the High Court's finding that the plaintiff was the exclusive owner and the revenue entries in favor of the defendants were illegal, the plaintiff was entitled to the permanent injunction sought.

4. Maintainability of the Suit:
The defendants challenged the maintainability of the suit on various grounds, including estoppel and valuation. The High Court did not find any substantial argument or evidence from the defendants to support these claims, thus upholding the suit's maintainability.

5. Estoppel Against Filing the Suit:
The defendants argued that the plaintiff was estopped from filing the suit due to the alleged 'Azadinama' and the subsequent revenue entries. The High Court found no evidence of such relinquishment or estoppel, as the required registered documents were not presented.

6. Proper Valuation for Court Fee and Jurisdiction:
The defendants contended that the suit was not properly valued for court fee and jurisdiction. The High Court did not find merit in this argument, as the primary issue was the ownership and possession of the land, which was adequately addressed.

7. Suit Being Time-Barred:
The defendants claimed that the suit was time-barred. The High Court did not find sufficient evidence to support this claim, particularly given the continuous possession and ownership asserted by the plaintiff.

Conclusion:
The High Court quashed the judgment of the first appellate court, which had erroneously relied on unregistered documents to establish the defendants' ownership. The court restored the trial court's judgment, affirming the plaintiff's ownership and entitlement to a permanent injunction. The decision emphasized the necessity of registered documents to transfer title of immovable property, as stipulated by the Registration Act, 1908.