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1983 DIGILAW 434 (ALL)

Tahal Ram v. Mohan Lal

1983-06-14

KAUSHAL KISHORE

body1983
JUDGMENT Kaushal Kishore, Member. - These are two revision petition nos. 40 and 41 of 1980-81/Nainital and one second appeal number 42 of 1980-81/Nainital filed by Tahal Ram and cross objection filed by the respondent Madan Lal, arising out of the connected litigation between Madan Lal and Tahal Ram consisting of suit no. 22/122 of 1973-74 u/s 229-B of the UPZA & LR Act filed by Madan Lal against Tahal Ram and suit no. 22/212 of 1974-75 u/s 209 of the UPZA & LR Act filed by Tahal Ram against Madan Lal. The last suit u/s 209 of the Act was stayed by the learned trial court u/s 10 CPC on 28.1.1976 in view of the earlier suit no. 22/122 of 1973-74 between the same parties and a revision no. 50 before the Commissioner, Kumaon Division, Nainital, was rejected on 18.11.1980 on a misconception that the main suit had been decided while only the first, appeal against the decree in suit no. 22/122 had been decided by the Commissioner. The suit u/s 229-B of the Act was dismissed by the learned trial court but in appeal, the learned Commissioner remanded the case and the revision no. 58 against the order dated 24.2.1976 in that suit refusing AMALDARAMAD on the ground that the decree had been stayed by the Commissioner, was also rejected by the first appellate court on 18.11.1980 as the main case had been decided. The two revisions here have been filed against the rejections of the two revision petitions before the learned Commissioner and the second appeal is filed against the remand order by the Commissioner in first appeal. The cross-objection is filed by Madan Lal against the Commissioner's observation that the suit would become defective if notice u/s 80 did not mention about accrual of adhivasi rights as in amended plaint. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The cross-objection is filed by Madan Lal against the Commissioner's observation that the suit would become defective if notice u/s 80 did not mention about accrual of adhivasi rights as in amended plaint. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The learned counsel for Tahal Ram argued that no amendment without notice u/s 80 CPC was possible and so the pleading of adhivasi rights accruing to the plaintiff could not be considered, that the learned Commissioner found the case defective on account of want of notice and the only possible conclusion was that the suit should either be dismissed or withdrawn and so no remand order was justified in support he cited ruling reported in 1977 RD 345, that the learned Commissioner had discussed no other issues and so the remand order was not justified. 4. The learned counsel for the respondent Madan Lal argued that the amendment was sought well in time, before the evidence started and in view of the amended Section 230-A which came alter the enactment of the UPZA & LR Act and abolition of zamindari in Kichha area on 1.7.1969, that no notice u/s 80 CPC is needed when moving the amendment application, that objection can be taken only by the State and not by anyone else, in the absence of objection by the State, it must be deemed waived, in support be cited rulings reported in 1980 AWC 456 holding that the objection as to lack of details can be taken only by the State and another ruling reported in 1969 AWR 738. The learned counsel further argued that the learned Commissioner had remanded the case on two grounds that the trial court should have found the date of commencement of adverse possession and the nature of possession after the expiry of the lease, that the lease being given for one year, after the expiry of this lease period, the plaintiff will not remain a licencee simpliciter he will either become trespasser or asami. The learned counsel for the appellant/revisionist argued further that the new pleading is in contradiction of the previous pleadings and that the amended Section 230-A had come in 1969, while the suit was filed on 22.4.1970, so the plea should have been included in the original plaint, and in support cited ruling reported in 1977 RD 345. 5. The learned counsel for the appellant/revisionist argued further that the new pleading is in contradiction of the previous pleadings and that the amended Section 230-A had come in 1969, while the suit was filed on 22.4.1970, so the plea should have been included in the original plaint, and in support cited ruling reported in 1977 RD 345. 5. I have considered these various aspects and also looked into the record. The question of amended pleadings changing the nature of the suit does not arise now, nor is it based on any real basis. The plaintiff from the very beginning claimed possession from 1356-F to the date of filing of the suit, the amendments only supplied details of legal provisions variously giving him rights of sirdari or adhivasi/sirdari based on possession in different years. The purpose of notice u/s 80 CPC is to apprise the State Government of the proposed suit which purpose is well served by the initial notice and no amended notice is needed. The law is well settled on this point as well on the point that no other party can take objection with regard to notice if the same is waived by the State. I am, therefore, of the view that no defect arose in the suit on account of the amendment and the cross-objection is acceptable to this extent. In the result, there was no need of remand of the case on this account. 6. Regarding the other question of the plaintiff's status as licencee continuing since 1960 as also admitted by both the parties, there is indeed nothing to show that the plaintiff ceased to be licencee after 1968. The basis of continuance as licencee till 1968 is payment of rent off Rs. 25/-per month but discontinuance of this payment of rent alone cannot prove change of licencee status. There must be some overt act on the part of the plain tiff showing that he had thrown away the shackles and intentionally occupied the land in dispute adverse to the wishes of the defendant. Unless such overt act was there, the defendant could well wait for the rent for some years. Since the declaratory suit was filed on 20.4.1970, the adverse possession could be deemed from 20.2.1970 onwards but not on 1.7.1969, the crucial date. Unless such overt act was there, the defendant could well wait for the rent for some years. Since the declaratory suit was filed on 20.4.1970, the adverse possession could be deemed from 20.2.1970 onwards but not on 1.7.1969, the crucial date. Hence it really does not make it necessary to search for a date of commencement of adverse possession in the learned trial court's judgment. The limitation period was far short of achievement and it was never a marginal question. 7. I also agree with the learned trial court that the plaintiff had occupied major part of the land in dispute for running his crusher and Chakki and for abadi and there being no cultivation in the crucial year 1376F, Madan Lal could not be deemed adhivasi. I also agree that after vesting, Madan Lal never became subtenant or asami in accordance with law. Therefore, in spite of the amended pleading the plaintiff had failed to prove his case and did not acquire any rights. 8. I am, therefore, of a firm view that the order for remanding the case was not justified. In fact, no finding on fact by the learned trial court has been reversed by the learned Commissioner. Therefore, the judgment by the learned Commissioner dated 18.11.1980 cannot be maintained and must be set aside and the decree by the learned trial court deserves to be confirmed. The order by the learned trial court dated 24.2.1976 was of course, consistent with the then stay order for decree dated 30.6.1975, and so the revision petition no. 40 here does not carry any force but it does not remain material either, for the Parwana Amaldaramad can be issued by the learned trial court after the decision of this second appeal. 9. Coming to the other revision petition no. 41, the learned Commissioner had never considered that question or the facts of the suit no. 23/212 of 1974-75, nor had he decided any appeal relating to that suit, so the revision could not have been dismissed. On merits, it must be said that the former suit was for declaration of title while the latter one was for ejectment and the decision of the former suit cannot dispose of the latter suit. 23/212 of 1974-75, nor had he decided any appeal relating to that suit, so the revision could not have been dismissed. On merits, it must be said that the former suit was for declaration of title while the latter one was for ejectment and the decision of the former suit cannot dispose of the latter suit. Since the parties were same and the land in dispute also was the same, the best course for the learned trial court would have been to consolidate the two suits and to decide them together. Now with the decision of the earlier suit, the learned trial court can now proceed to dispose of the other suit u/s 209 of the UPZA & LR Act. 10. The two revision petitions, second appeal and the cross-objection are all decided accordingly, the judgment and order dated 18.11.1980 by the learned Commissioner in first appeal is hereby set aside and the judgment and decree by the learned trial court dated 30.6.1975 is confirmed, the revision petition no. 40 of 1980-81 is rejected and the revision petition no. 41 of 1980-81 is allowed by vacating the stay order dated 28.1.1976 and the learned trial court is directed to dispose of the case number 22/212 of 1974-75 in accordance with law. 11. This order shall govern revision petition numbers 40 and 41 of 1980-81/Nainital, second appeal no. 42 of 1980-81/Nainital and cross-objection no 92 of 1980-81/Nainital.