RAM v. KEWAL RAM — 1998 DIGILAW 186 (HP)

JUDGMENT D. Raju, C J.—The above Second Appeal has been filed by the defendants in Civil Suit No. 118 of 1988 on the file of Senior Subordinate Judge, Kangra at Dharamshala having lost before both the courts below. The respondent-plaintiff filed the suit for declaration that the suit property is in joint possession of plaintiff with defendant No. 1 as co-sharers and that the entry in the coloumn of remarks of correction vide Rapat No. 137 dated 4.11.1986 in favour of defendants No. 2 and 3 who are the real sons of defendant No. 1, as"Kast and Kabza Swaim without rent because of relation" is wrong, a collusive entry, null and void entry as the same has been effected in collusion with defendant No. 1 just to eliminate the 1/2 share of the plaintiff in the suit land and that the correction order dated 18.10.1986 of Assistant Collector, Palampur is wrong and liable to be set aside having been passed ex-parte and without the knowledge of the plaintiff and the suit land be directed to be recorded in the joint possession of plaintiff and defendant No. 1 as co-sharers with consequential relief of permanent injunction against defendants No. 2 and 3 restraining them from interfering in the suit land or in the alternative for joint possession in favour of the plaintiff with defendant No. 1 as co-sharers of the suit land and against defendent Nos. 2 and 3, if they are found to be in actual possession. 2. The case of the plaintiff is that the land comprised in Khata No. 24, Khatauni No. 63, Khasra Nos. 2 and 3, if they are found to be in actual possession. 2. The case of the plaintiff is that the land comprised in Khata No. 24, Khatauni No. 63, Khasra Nos. 379, 380 and 385 and 387 measuring O-22-20 Hectares situate in Mehal Bhatarka, Muaza Bandle, Tehsii Palampur, District Kangra stands entered in the ownership of the plaintiff and defendant No. 1 as co-sharers and the name of defendant No. 1 is entered in the column of possession, as in possession as co-sharer as could be seen from the Jamabandi for the year 1985-86 which has been filed with the plaint The plaintiff claims that he himself and the first defendant inherited the property from their father and that the first defendant in collusion with defendants No. 2 and 3, who are his real sons, and who have no right, title or interest in the suit land de hors the first defendant has manipulated the records and managed to get orders in their favour which according to the plaintiff is not legal, valid or in any manner binding against the plaintiff. 3. The first defendant filed a separate written statement and defendant Nos. 2 and 3 also filed a separate but common written statement disputing the claim of the plaintiff. Having regard to the nature of the submissions made I consider it necessary to advert, at this stage, to the nature of defence that has been taken both in the form of preliminary objection as also on merits. As part of the preliminary objection, it was contended that the plaintiff has no cause of action, that he is estopped from filing the suit by his act and conduct, that the suit in the present form is not maintainable, that the suit is bad for non-joinder of necessary parties, that the plaintiff has no locus standi to file the suit and the suit is barred by limitation and not valued properly also. On merits, the first defendant whose claim really matters for consideration for the reason to be noticed hereinafter, claims that the correction order by the revenue authorities is binding on the plaintiff, that subsequent to the death of the father there had been a family settlement as per which the property in question came to be exclusively owned and possessed by the first defendant, that the first defendant had also discharged certain debts and sale of the property by getting the property released from such proceeding and on that account also the first defendant became exclusive owner of the property. An half hearted plea that the replying defendants have become also the owner of the suit land by adverse possession since 1964-65 ever if their title is not proved and the suit is barred by limitation was also reiterated. So far as defendants No. 2 and 3 are concerned, apart from projecting the rights of the first defendant as stated by him in his written statement, it was stated that defendants No. 2 and 3 were cultivating the same to the exclusion of the plaintiff and the said fact has been brought on record by appropriate correction in the record and the same is binding on the plaintiff. 4. On the above claims and counter-claims, the suit came to be tried and the learned Trial Judge framed eleven issues of which ten pertain to the points raised in dispute between the parties. It needs mention at this stage that there does not appear to have been any objection to the nature of issues framed or that any claim for amending the issues already framed or that any claim for framing of additional issues was sought for or rejected during the course of trial. The learned Trial Judge after considering the material on record, decreed the suit in favour of the plaintiff by passing a decree to the effect that the order dated 18.10.1986 of the Assistant Commissioner 1st Grade Palampur in case No. 55/86 ordering the change in the column of possession in favour of defendants No. 2 and 3, is null and void and not binding upon the plaintiff and also for further decree for joint possession qua 1/2 share of the plaintiff in the suit land against the defendant. As a consequence thereof the defendants were restrained from denying the title of the suit land in any manner. As a consequence thereof the defendants were restrained from denying the title of the suit land in any manner. So far as the issues No. 5,6,7, 9 and 10 are concerned, the learned Trial Judge has recorded that neither there was any evidence on these issues nor these issues were pressed before the learned Trial Judge during the course of arguments and, therefore, they are decided as unpressed. Though the learned Counsel for the appellant attempted to challenge the correctness of this conclusion recorded in paragraph 14 of the judgment of the learned Trial Judge, it is not permissible for the appellant to do so for more than one reason, namely, that any factual position found recorded in a judgment as to what happened in the court is final unless it is modified by moving an appropriate application before the very court and the appellate and other forum cannot go behind such statement found recorded unless to the extent permissible it could be challenged otherwise on appeal. In this case though the first defendant has filed an appeal in C.A. No. 3/92 before the District Court no such challenge appears to have been projected to the correctness of those findings recorded in para 14 and, therefore, the learned Counsel for the appellant is precluded from challenging the correctness of the same at this stage in this appeal. So far as the claim of defendants No. 2 and 3, who are the real sons of defendant No. 1, is concerned, it is not one of title in themselves but the title in the first defendant and possession in them and, therefore, the rights claimed by them are distinct and separate. Inasmuch as they do not appear to have filed any appeal before the first appellate Court challenging that part of the judgment which went against them, by merely joining along with their father in the second appeal before this Court they cannot regret or vindicate their right which they have lost before the Trial Court and not challenged before the first appellate Court. Consequently what is required to be considered in the facts and circumstances of the case is the right directly arising and the claim between the plaintiff and the first defendant, in this appeal. 5. Consequently what is required to be considered in the facts and circumstances of the case is the right directly arising and the claim between the plaintiff and the first defendant, in this appeal. 5. The first defendant, who filed, as noticed earlier, C.A. No. 3/92 before the first appellate Court has lost his appeal and the learned first appellate Judge also concurred with the findings of the learned Trial Judge. Hence, this second appeal. The second appeal has been directed to be admitted on the basis and for the purpose of substantial questions No. 2 and 3 filed along with the grounds of appeal, which read as follows: "2. Whether the issues have been properly framed by the Trial Court and whether the omission to frame the necessary issues on private partition and tenancy has resulted in wrong decision of the case? 3. Whether the matter of correction of records of right is within the exclusive jurisdiction of the Revenue Officer as per the provisions of the H.R Land Revenue Act and also as per the judgment of this Honble High Court pronounced by the Full Bench of this Court i.e. Chuhniya Devi v. Jindu Ram, 1991 (1) Shim. L.C. 223." The learned Counsel for the appellants while elaborating the substantial questions of law formulated in the case contended that the omission to frame necessary issues on the plea of private partition and tenancy rights claimed had resulted in a wrong decision being rendered on the claims of the parties and that the Courts below ought to have held that the correction of record of rights is within the exclusive jurisdiction of the Revenue Officer empowered under the provisions of the Himachal Pradesh Land Revenue Act, as laid down by this Court in the decision reported in Chuhniya Devi v. Jindu Ram, 1991 (1) Shim. L.C. 223. L.C. 223. The learned Counsel also invited my attention at length to the relevant portion of the judgments of both the courts below and further contended that the plaintiff could not have been granted relief in the manner, it has- been done by declaring rights of joint possession also when according to the learned Counsel for the appellants, as per the materials on record the appellants had been alone in exclusive possession and enjoyment of the property in their own right and no such decree for joint possession, therefore, could have been made in favour of the plaintiff. In support of his submissions, the learned Counsel invited my attention to the decisions reported in Chuhniya Devi y. Jindu Ram, 1991 (1) Sim.L.C. 223; Anila Bala Devi v. Madhabendu Narain Roy and another, AIR 1942 Cal 245; Hanuman Prasad Narain Singh v. Mathura Prasad Narain Singh, AIR 1928 All 472; Naoroiham Bira Singh and others v. Waikhom Leirenjao Singh and others, AIR 1958 Manipur 38; Pandurang Laxman Mohite v. Kaluram Bahiru Bhikule, AIR 1956 Bom 254; Nedunuri Kameshwaramma v. Sampati Suhba Rao, AIR 1963 SC 884 and Tara Chand Rattan Chand and another v. Ved Prakash Keshori Lal and another, AIR 1953 Pepsu 120. 6. Per contra, Mr Ajay Sharma, learned Counsel for the respondent while adopting the reasoning of the courts below contended that there was no infirmity in law in granting a declaratory decree while declaring the rights of the plaintiff in the property of joint possession having regard to the peculiar facts of the case that the plaintiff is a co-owner and there was no division in the status among the plaintiff and the 1st defendant and, therefore, no exception could be taken to the judgments of the Courts below. It was also contended for the respondent that virtually while being examined the 1st defendant had to concede the joint nature of the possession of the plaintiff with the 1st defendant and that it is in order to defeat the rights of the plaintiff only the 1st defendant has chosen to manipulate the matters by getting his sons, name recorded as though they are tenants in possession behind the back of the respondent, and, therefore, the appellants have no legal basis for their claim. In support of such submissions, reliance has been placed on Mohd. In support of such submissions, reliance has been placed on Mohd. Zainulabudeen v. Sayeed Ahmad Mohideen and others, 1990(1) S.L.J. 152 and Manphool v. Sampat and others, 1985 S.LJ. 683. 7. I have carefully considered the submissions of the learned Counsel appearing on either side. In my view the grievance sought to be espoused on the basis of an alleged omission on the part of the courts to frame proper issues in respect of the plea of private partition and tenancy rights claimed is not well merited either in law or on the fact situation presented in this case. 8. In AIR 1956 Bom 254, a learned Single Judge took the view that the issue relating to jurisdiction when did obviously arise on the written statement, it was the duty of the Judge to have raised that issue. In my view, there is nothing in the said ruling which could be applied to the case on hand. 9. In AIR 1953 Pepsu 120, a Division Bench of the said High Court dealt with the scope and purport of the word case decided in the context of rejection of an interlocutory application filed praying for formulation of two additional issues. It is in that context, it was observed that if the Court refused to frame an issue, its order on the point was to be regarded as case decided. Equally this ruling also does not have any relevance on the case in hand and it is not the case of the appellants that they sought for any modification and reframing of the issues or for framing of additional issues at any time and that it came to be rejected. 10. In AIR 1963 SC 884, the apex Court had an occasion to deal with the consequences of omission to frame all or necessary issues in a case during the course of trial. It was observed by their Lordships that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was such mistrial which vitiates the proceedings. So for as the case on hand is concerned apart from the fact that no such attempt was made at the appropriate stage making any grievance relating to the nature of issue on record of projecting a claim for additional or alteration of the issues and the absence of any grievance being made thereof even thereafter except before this Court, I am of the view that the plea of private partition projected was adverted to and was held to be not proved by legally acceptable evidence even under the heading of issue No. 1, which was framed in a broad-based manner to take both the claim and counter-claim projected in respect of the rights in the property of the plaintiff and the 1st defendant. It is not the case of the appellants they had other materials which could have been produced but which they were disabled from producing the same in the Court, in the absence of any such issues as now are sought to be claimed that they should have been formulated. Similarly, the rights claimed in respect of the tenancy in favour of defendants No. 2 and 3 also have been adverted to and dealt with as they deserved even within the frame-work of the issues already framed on the basis of which the parties also went into trial and the grievance sought to be projected at this point of time, in my view, has no merit of acceptance, particularly, when it is not proved in what manner the absence of those specific issues prejudiced the case of the appellants or vitiated the trial of the suit. As indicated earlier, the plea in respect of the tenancy projected on behalf of and by defendants No. 2 and 3, who did not choose to file any appeal in respect of the decree against them in the first Appellate Court cannot be allowed to be challenged by merely joining the 1st defendant in this appeal and no grievance in respect of the absence of such issues also could be projected taking advantage of the fact that now all the defendants have joined in this appeal. For all the reasons, I do not find any merit in this ground of challenge to the judgments of the Courts below, 11. For all the reasons, I do not find any merit in this ground of challenge to the judgments of the Courts below, 11. So far as the contentions of the learned Counsel for the appellants that the Courts below have committed an error in decreeing the suit and that the matter of correction of record of rights is purely one within the exclusive jurisdiction of the Revenue Officer empowered under the Himachal Pradesh Land Revenue Act and that they are not matters for the Civil Court, projected by placing reliance on the decision reported in 1991(1) Shim.L.C. 223 (supra), is concerned, I am of the view that there are no merits in this ground of challenge as well. In 1991(1) Shim.L.C. 223, a Full Bench of this Court had an occasion to review the case law on the subject relating to a special enactment providing for adjudication of special rights created and the bar or ouster of the jurisdiction of the Civil Court in respect of matters, which have been left by the special enactment to be adjudicated by the special authorities created under such special enactment. The Full Bench ultimately answered the issues by observing that an order made by the competent authority under the Himachal Pradesh Land Revenue Act, 1954 is open to challenge before a Civil Court to the extent that it related to matters falling within the ambit of Section 37(3) and Section 46 of the Act and that the Civil Court will have no jurisdiction to go into any question connected with the "conferment of the proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principle of judicial procedure or where the provisions of the Act had not been complied with". Section 37(3) of the Act provides that a direction of a Revenue Officer under sub-section (2) shall be subject to any decree or order, which may be subsequently passed by any Court of competent jurisdiction and that it has also been held by this Court while construing Section 37 that the Revenue Officer cannot go into complicated issues of right, title and interest but should refer the party to a competent Court having jurisdiction for adjudication of such rights. Section 46 makes it clear that if any person considers himself aggrieved as to any right of which he is in possession by an entry in a record of rights, he may institute a suit for declaration of his right, under Chapter VI of the Specific Relief Act, 1963, which provides in its turn for declaratory decrees being sought for and obtained from the competent Civil Court and the effects of such declaration obtained. In view of the above legal position as also the fact that the relief sought for in this case was for declaration of rights in the property in question by the plaintiff in his capacity as a joint co-owner and the claim made as a consequence thereof for a declaration of joint possession as such, the courts below could not be either found fault with or could be said to have lacked jurisdiction to deal with the suit claim and declare the rights of parties, as it had been done. 12. In Srinivasan and others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Tiruchirapalli District by its Executive Officer at Pattavaithalai Devasthanam and others, 1998-2-LW. 189, a Full Bench of the Madras High Court, to which I was a party also while dealing with such a special enactment as the one in force in this state of reviewing the entire up-to-date case law on the subject including the latest pronouncements of the apex Court expressed a similar view as held by the Full Bench of this Court in 1991(1) Shim.L.C. 223S that jurisdiction of the Civil Court to entertain a civil suit for declaration of title and injunction is neither ousted nor barred by the orders passed by the statutory authorities constituted under the special enactments. 13. In Dhani Sao v. Bishun Prasad Singh and another, AIR 1938 Pat 524, a Division Bench of the Patna High Court held that though the Civil Court cannot direct the entries to be made in the Collectors register or registers or those made to be corrected, when properly moved it can give a declaration regarding the shares of the parties or even a declaration that certain entries in the Collectors registers are wrong. In view of the above, there is no merit in the objection taken to the maintainability of the suit or the competence of the Civil Court to adjudicate on the issues raised and decided under the judgment and decree passed in this case. 14. The learned Counsel for the appellants further contended that on the facts and circumstances of the case where it is shown according to the learned Counsel that the 1st defendant was in exclusive possession of the property for a considerable length of time in his own right, no decree for joint possession could have been made and that in the absence of any claim for recovery of possession such decree could not have been made by the Courts below. In this regard, while inviting my attention to Section 34 of the Specific Relief Act, reliance has been placed on the decision reported in AIR 1942 Cal 245. While dealing with the proviso to Section 42 of the Specific Relief Act, 1877, which is the fore-runner to the present Section 34 of the Specific Relief Act, 1963, the Division Bench observed that when a plaintiff, who is out of possession sues for declaration of his title and the defendant in possession denies the plaintiffs title a suit for declaration of title alone will not be maintainable unless the plaintiff prays for recovery of possession also. 15. In AIR 1928 All 472, a Full Bench of the said High Court has held that a decree for joint possession to a co-sharer can be given against the other co-sharer though former has not been in possession and that the Court cannot refuse such relief merely on the ground that it would be impracticable or inadvisable. After declaring the legal position, on the facts and circumstances of the said case, when the matter has been remitted to the Division Bench, it was held by the learned Judges of the Division Bench that though the separate possession of the defendant in that case must be deemed to be with the plaintiffs consent, it was not a fit case in which his possession should be disturbed by passing a decree for joint possession in favour of the plaintiff. Such observations came to be made as indicated earlier on the peculiar facts of the case where it was proved that for over 24 years, the defendant co-sharer was in separate possession and the plaintiff co-sharer has been merely receiving the profits from the defendant during those years and from the inception the separate possession was not illegal. 16. In AIR 1958 Manipur 38, the learned Judicial Commissioner while dealing with the proviso to Section 42 of the Specific Relief Act, 1877 as in the decision of the Calcutta High Court noticed above, held that no mere declaration of title can be granted to the plaintiff who is not in possession. 17. The decisions relied upon by the learned Counsel for the respondent-plaintiff are for the preposition that the possession of one co-sharer in law is considered to be possession of all the co-sharers and to construe ouster as between the co-sharers, there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment of one of them to the knowledge of the others and that mere non-participation in rents and profits of land of a co-sharer does not per se amount to an act of ouster. 18. In M/s. Supreme General Films Exchange Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and others, AIR 1975 SC 1810, the apex Court while dealing with the scope, nature and extent of jurisdiction of a Civil Court to grant declaratory relief in the context of an objection raised vis-a-vis Section 42 held that Section 42, corresponding to Section 34 of the present Act, merely gives statutory recognition to well recognised types of declaratory relief subject to certain limitations but it cannot be deemed to exhaust every kind of declaratory relief or circumscribe the jurisdiction of the Civil Court to give a declaration of right in appropriate cases, falling even outside Section 42. It was also observed therein that the circumstances in which a declaratory decree under Section 42 should be awarded is a matter of discretion depending upon the facts of each case and that no doubt a complete stranger whose interest is not affected by anothers legal character or who has no interest in anothers property could not get a declaration under Section 42 with reference to the legal character or the property involved. Consequently, the legal principles apart, which does not carry any absolute restriction on the Courts below to give any appropriate relief in a peculiar case before it on the facts and circumstances of this case also, in my view, the view taken concurrently by both the Courts below is well justified and does not call for my interference. It is an indisputable fact that the plaintiff and the 1st defendant inherited the property in question on the death of their father and became co-owners and they had joint ownership as also possession by virtue of the said succession as co-owners. Ex. P-1 and Ex. P-3 pertaining to the years 1985-86 in unmistakable terms disclose that the land was recorded in the joint ownership of the plaintiff and the 1st defendant. In the teeth of the 1st defendant having misreably failed to prove the private partition and exclusive possession so as to constitute ouster and, as a consequence thereof, perfection of title by adverse possession, the rights of the plaintiff as a co-owner not only to a common and undivided equal share in the suit property, but to joint possession cannot be defeated. The mere fact that subsequently, the 1st defendant has cleverly chosen to get an entry in the revenue record in favour of his two real sons at the back of the respondent cannot improve the prospects of the defendants in any manner to defeat and destroy the well settled and indefeasible rights of the plaintiff as co-owner both for declaration of his joint title and rights and as such co-sharer for joint possession thereof. 19. For all the reasons stated above, there are no merits whatsoever in the above appeal. The appeal, therefore, fails and shall stand dismissed. No costs. Interim order dated 25.5.1993 stands vacated. CMP No. 179/94 : In view of the final disposal of the main appeal, no further orders are required to be passed on this application. Hence, rejected. Appeal dismissed.