LAJPAT RAI (DECEASED) THROUGH HIS LRS MAYA DEVI v. TARO DEVI
1998-10-29
D.RAJU
body1998
DigiLaw.ai
JUDGMENT D. RAJU, C. J.—Out of the batch of four cases, the Counsel on either side represents that RSAs No. 111 of 1990 and 120 of 1990, form one group and RSAs No. 173 and 174 of 1990 form the other group. RSAs No. 111 and 120 of 1990 The defendant in Civil Suit No. 603 of 1983 on the file of learned Sud-Judge (II), Una, who lost before both the Courts below is the appellant in the above second appeals. The respondents No. 1 to 7 herein have filed the suit for possession of land measuring 0-8 Marlas being 9/35 share out of the land measuring 1 Kanal 10 Marlas, having Khewat No. 1395, Khatauni No. 1867, Khasra No. R 87/12/2, as entered in the Jamabandi for the year 1981-82 (hereinafter referred to as the suit land), situated in village Basal, H.B. No. 194, Tehsil and District Una. The case of the plaintiffs was that one Ram Pal, who is no more was the owner of 5 Kanals and 9 Marlas of land entered against Khewat No. 505 min, Khatauni No. 1979, 1983 and 2000 bearing Khasra Nos. 2701 min (2 Kanals) 2918 min (0-9 Marlas), 2701 min (2 Kanals 3 Marlas) 2918 miri (0-17 Marlas) and 2918 min (0-9 Marlas) in the Jamabandi for the-year 1959-60. The predecessor of the plaintiffs, namely, Banta and, the predecessor of prof orma defendant, namely, Belu and the father of the appellant Lajpat were said to be tenant on the land under! said Ram Pal. The plaintiffs father Banta was tenant on 2 Kanals 9 Marlas of land entered against Khatauni No. 1979 bearing Khasra No. 2701 min, measuring 2 Kanals and 2918 min, measuring 0-9 Marlas. Belu, the predecessor of proforma defendant was said to have been a tenant on 3 Kanals of land entered against Khatauni No. 1983 bearing Khasra No. 2701 min, measuring 2 Kanals 3 Marlas and 2918 min measuring 0-17 Marlas. Tne appellant Lajpat Rai, who is no more, was said to be a tenant only on 9 Marlas of land entered against Khatauni No. 2000 bearing Khasra No. 2918 min.
Tne appellant Lajpat Rai, who is no more, was said to be a tenant only on 9 Marlas of land entered against Khatauni No. 2000 bearing Khasra No. 2918 min. The predecessor of the plaintiffs was also stated to have purchased the land on which he was a tenant from Ram Pal itself on 24.6.1968 and he has, therefore, become the owner of the above referred to 2 Kanals 8 Marlas of land entered against Khatauni No. 1979 in the Jamabandi for the year 1959-60. Belu also was said to have purchased 3 Kanals of land under his tenancy and he, therefore, was said to have become owner in possession of his tenancy Iani. While matters stood thus, according to the plaintiffs the appellant some how or other got a wrong entry to be made in the Jamabandi for the year 1972-73 showing the defendant Lajpat to be in possession of the whole of Khasra No. 2918, which was said to have consisted of min numbers as per entries in Jamabandi for the year 1959-60. The total area of 3 min numbers of Khasra No. 2918 was said to be 1 Kanal 15 Marlas and the entire extent was shown to be in possession of defendant Lajpat in the Jamabandi for the year 1972-73, This entry was said to have been made in an illegal manner and, therefore, not only was it said to be void but no consequences , also are said to flow from out of the same. In the subsequent consolidation proceedings, which took place in the village, in lieu of Khasra No. 87/12/2, measuring 1 Kanal 10 Marlas were said to have been allotted and wrong entry in favour of the defendant Lajpat was said to have been made by treating the said defendant as a tenant on Khasra No. 87/ 12/2 under Rampal. The further claim of the plaintiffs was that about three months prior to the institution of the suit, the defendant forcibly entered into the suit land and took possession. It is in such circumstances, the suit came to be filed seeking for the relief, as noticed supra. 2. The defendant/deceased appellant filed a written statement and apart from raising a preliminary objection, contested and disputed the claim of the plaintiffs.
It is in such circumstances, the suit came to be filed seeking for the relief, as noticed supra. 2. The defendant/deceased appellant filed a written statement and apart from raising a preliminary objection, contested and disputed the claim of the plaintiffs. On such claims and counter-claims the suit came to be tried and on a consideration of the materials on record, the learned trial Judge decreed the suit. Aggrieved, the defendant Lajpat Rai pursued the matter on appeal in Civil Appeal No. 122 of 1987 and the learned District Judge, Una, also after hearing the parties on either side confirmed the judgment and decree of the learned trial Judge resulting in the above second appeal. 3. So far as Second Appeal No. 120 of 1990 is concerned, the same was filed by one Jagiri Lal, who was arrayed as proforma- defendant (second defendant) in the other suit. The contesting defendant in the other suit is also the contesting defendant in the present Civil Suit No. 604 of 1983. The plaintiffs in the other suit are shown as proforma-defendants in the present suit. The plaintiff in this suit has filed the same for possession of land measuring 0.16 Marlas being 17/35 share out of land measuring 1 Kanals 10 Marlas bearing Khewat No. 1355, Khatauni No. 1867, Khasra No. R 87/ 12/2 as entered in the Jamabandi for the year 1981-82, situated in village Basal H.B. No. 194, Tehsil and District Una. The land in question was also said to have been owned by the said Ram Pal and it is claimed that the present plaintiff also purchased the land in his possession from the said Ram Pal on 24.6.1968. The grievance of the present plaintiff also is, as in the other appeal, on account of the wrong entries in the revenue papers relating to the Jamabandi for the year 1972-73 made by showing one, Gauri predecessor of defendant No. 1 as tenant at will over the whole land of Khasra No. 2918 measuring 1 Kanal 15 Marlas instead of land measuring 9 Marlas which alone was in possession of predecessor-in-interest of the first defendant. The basis of the claim was almost on identical nature of pleas as in the other case.
The basis of the claim was almost on identical nature of pleas as in the other case. Likewise, the stand taken by the contesting defendants in this suit also is the same as in the other and was identical and similar to the one projected in the other suit. On trial, the learned trial Judge decreed the suit and the appeal filed by the first defendant before the learned First Appellate Judge in Civil Appeal No. 121 of 1987 also did not meet with success. Hence the said second appeal. RSAs No. 173 and 174 of 1990 4. The appeal in RSA No. 173 of 1990 is by the defendant in case No. 19/1 of 1982 on the file of the learned Senior Sub-Judge, Bilaspur. The respondent-plaintiff has filed the suit for declaration that the plaintiff is the owner and in possession of the land measuring 2.4 Bighas of land comprised in Khasra No. 472, Khewat No. 60 min, Khatauni No. 121 vide Misal Haquiat for the year 1975-76, situated in village Karot, Pargana Behadurpur, Tehsil Sadar, District Bilaspur. The grievance of the plaintiff was that in respect of the said land the defendant has been wrongly shown to be in possession though he is really neither the owner of the land nor held any tenancy rights or was really in possession of the property. A grievance is also made against the order dated 31.1.1979 passed by the Consolidation Officer, Bilaspur and that of the Director of Consolidation exercising the powers of the State Government made on 29.8.1981, which are said to be illegal, without jurisdiction, void and unenforceable in law. Thus, in such circumstances, the plaintiff sought for permanent prohibitory injunction also while seeking for an alternative relief of recovery of possession, if need be. The defendant filed a written statement, in which though he admitted that the entry showing the plaintiff to be owner to be correct but disputed his possession by claiming in himself nearly for 30 years possession as non-occupancy tenant on payment of rent and the defendant further attempted to justify the change in the entries to the detriment of the plaintiff. In contrast to the claim of the plaintiff, the defendant would contend that the orders of Consolidation Officer and the Director of Consolidation were valid and in accordance with law.
In contrast to the claim of the plaintiff, the defendant would contend that the orders of Consolidation Officer and the Director of Consolidation were valid and in accordance with law. On the above claims and counter-claims, the suit came to be tried and ultimately the learned trial Judge while declaring the entries subsequently made to be illegal, passed a decree declaring the plaintiff as owner of the suit land and holding further that the defendant is not a non-occupancy tenant under him in respect of the land in question and granted recovery of possession also in favour of the plaintiff. Aggrieved, the defendant pursued the matter on appeal in Civil Appeal No. 131 of 1986/85 before the District Court and the learned Additional District Judge, Bilaspur, by his judgment dated 12.1.1990 while affirming the judgment and decree passed by the learned trial Judge, dismissed the appeal resulting in the filing of the above second appeal. 5. So far as RSA No. 174 of 1990 is concerned, the same was also filed by the plaintiff in other suit which culminated in filing of RSA No. 173 of 1990 but against two other defendants, who have filed the present second appeal. In this suit also, the plaintiff sought for a declaration in respect of land measuring 0.7 Biswas comprised in Khasra No. 462/1, Khewat No. 114, Khatauni No. 218; 0.6 Biswas in Khasra No. 463/1, Khatauni No. 139 and 0.11 Biswas in Khasra No. 465/1, Khewat No. 60 min, Khatauni No. 120, vide Misal Haquiat for the year 1976-77, situated in village Karot, Pargana Behadurpur, Tehsil Sadar, District Bilaspur. The claim of the plaintiff is that he is in possession of the land in question in this suit and the defendant had no right, title or interest as owner or as a tenant and the revenue entries showing to the contra that the defendant is a non-occupancy tenant are illegal, void and unenforceable. It was also claimed for the plaintiff that the order dated 31.1.1979 passed by the Consolidation Officer and the one passed by the Director of Consolidation on 29.8.1981 are illegal and void and, therefore, he sought for not only permanent injunction restraining the defendants from interfering with his possession but also claimed for the alternative relief of recovery of possession.
It was also claimed for the plaintiff that the order dated 31.1.1979 passed by the Consolidation Officer and the one passed by the Director of Consolidation on 29.8.1981 are illegal and void and, therefore, he sought for not only permanent injunction restraining the defendants from interfering with his possession but also claimed for the alternative relief of recovery of possession. The defendants filed a written statement in which though they do not dispute the ownership of the plaintiff, a dispute has been raised with reference to the possession of the land by asserting that they were in possession and continued to be so even before the plaintiff became the owner as non-occupancy tenant on payment of l/4th of the land product and as such are tenant under the plaintiff. They asserted a claim of such possession for the last 40 years prior to the suit. The defendants also not only claimed rights and benefits flowing out of the order of the Consolidation Officer and Director of Consolidation, but contended that the said proceedings are valid and quite in accordance with law. On such averments by both the competing claimants, the suit came to be tried and the learned trial Judge while declaring the consolidation proceedings and the entries made to be illegal passed a decree declaring that the plaintiff is the owner of the suit land and the defendants are not non-occupancy tenants under him regarding the land in question and consequently revenue entries were also held to be illegal and not binding on the plaintiff. A decree for recovery of possession in favour of the plaintiff was also passed. Aggrieved, the defendants filed Civil Appeal No. 109 of 1985/86 before the District Court and the learned Additional District Judge, Bilaspur, by his judgment and decree dated 12.1.1990 confirmed the judgment and decree of the learned trial Judge resulting in the filing of the above second appeal. 6. These appeals were directed to be heard together on account of a common question of law raised in them as to the competency and the authority of the Civil Court to deal with the said claim and grant relief in favour of the plaintiff in the manner it has been done in the teeth of a bar engrafted in Section 57 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971.
In view of the above, it is appropriate to deal with and decide this issue in the forefront before adverting to the other contentions raised on merits in the respective appeals. 7. Mr. Bhupender Gupta, learned Counsel appearing for the appellants in an elaborate argument made, after meticulously inviting my attention to the nature of the issues, which have been decided by the authorities below, the claims projected in the Civil Court and the ultimate findings recorded by the Courts below in this regard, contended that the Civil Court had no jurisdiction to entertain the claims projected by the respective plaintiffs in the teeth of the revenue proceedings as also the orders passed by the Consolidation Officer and Director of Consolidation in these cases and that such orders could be challenged only in the manner known to and to the extent permissible under the Act itself and in other respects must be held to have become final and binding on the parties. The learned Counsel placed strong reliance upon the decisions of the Apex court reported in (1997) 5 SCC 460, Vankamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma; (1997) 6 SCC 143, S. Vanathan Muthuraja v. Ramalingam alias Krishnamurthy Gurukkal and others, and also the decision of a Division Bench of this Court reported in SLJ 1972 H.P. 301, Badri Lal and others v. Jai Kishan and others. In this decision of the Division Bench of this Court, it has been held while construing the provisions of H.P. Consolidation of Holdings Act, 1953 and Punjab Land Revenue Act, 1887 that having regard to the special revision of the record pf rights and Khataunis as to the statement of proprietors and tenants holding with a detail of fields and note of the rent paid by each tenant, it is nothing but a record of rights to which presumption of correctness under Section 44 of the Punjab Revenue Act and Section 45 of the H.P. Land Revenue Act must be attached and they must be presumed to be true unless contrary is proved. On a careful perusal of the reasoning of the Division Bench, I am unable to agree with the learned Counsel for the appellants that this decision lends any support to the claim of the learned Counsel in respect of the bar of jurisdiction of the Civil Court to go into the matter.
On a careful perusal of the reasoning of the Division Bench, I am unable to agree with the learned Counsel for the appellants that this decision lends any support to the claim of the learned Counsel in respect of the bar of jurisdiction of the Civil Court to go into the matter. On the other hand, the learned Judges of the Division Bench have proceeded to assign an initial presumption of correctness to such entries and records unless the contrary is proved and this by itself would go to show that the position contra to the one reflected in the revenue record so prepared, is otherwise permissible in law to be proved and established. So far as the two decisions of the Apex Court reported in (1997) 5 SCC 460 (supra) and (1997) 6 SCC 143 (supra) are concerned, they have been dealt with by a Full Bench of the Madras High Court, of which I was a party, reported in 1998 (2) L.W. 189, Srinivasan and others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Tiruchirapalli District by its Executive Officer at Pattavaithalai Devasthanam and others, and it was held therein that the jurisdiction of the Civil Court to entertain a suit for declaration of title and injunction is not barred by the orders passed by the authorities under any special enactments. It was also pointed out by the said Full Bench that in view of the other binding precedents, and decisions of the Apex Court earlier in point of time, even that of a larger Bench of the Apex Court taking directly a contra view of the matter, the principle of law laid down in the decisions relied upon for the appellants could not be said to be a binding precedent or declaration of law. As a matter of fact in K.S.A. No. 476 of 1992, Shri Ram and others v. Shri Kewal Ram, decided on 9.10.1998, I had no occasion to deal with the very issue and after adverting to the decision of a Full Bench of this Court also reported in 1991 (1) Shim.
As a matter of fact in K.S.A. No. 476 of 1992, Shri Ram and others v. Shri Kewal Ram, decided on 9.10.1998, I had no occasion to deal with the very issue and after adverting to the decision of a Full Bench of this Court also reported in 1991 (1) Shim. L.C. 223, Chuhniya Devi v. Jindu Ram, held as hereunder: "In Srinivasan and others v. Sri Madhyarjuneswaraswami, Pattavaithalia, Tiruchirapalli District by its Executive Officer at Pattavaithalai Devasthanam and others, 1998 (2) L.W. 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 and reviewing the entire upto 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. 223, that jurisdiction of the Civil Court to entertain a Civil Suit for declaration of title and injunction is neither oused nor barred by the orders passed by the statutory authorities constituted under the special enactments." Consequently, the view taken by the Courts below that the Civil Courts jurisdiction is not ousted in the matters of the nature and that there was no impediment to proceed with the trial of the suit and adjudicate the issues and grant relief, cannot be said to be bad in law. On the other hand, the said view taken by the Courts below is in quite conformity with the binding legal position. The contention raised on behalf of the appellants to the contrary, therefore, fails and shall stand rejected. 8. Yet another general issue applicable to the appeals was also raised by Mr. Bhupender Gupta, by contending that the question of relationship of landlord and tenant, when once decided by the specially constituted authorities under a special enactment, such authorities being Courts of limited jurisdiction, it is not permissible for the parties aggrieved to file a Civil Suit to reagitate the very same issues and the parties concerned are not only barred by reason of the provisions contained in the statute but also by the principles of res judicata. Attractive though the submission appears to be, in my view, it cannot with-stand a close scrutiny.
Attractive though the submission appears to be, in my view, it cannot with-stand a close scrutiny. The decision which resolved to apply the principles of res judicata was rendered by a Division Bench of this Court reported in 1992 (1) Shim. L.C. 132, Rulia and others v. Roop Lal and others, having regard to the peculiar facts and circumstances of the case that the subsequent appeal filed by the tenants was brought before the appellate Court, which upheld the finding of the Compensation Officer and what was considered to be constituting res judicata by the Division Bench in that case was the adjudication by the learned District Judge as an appellate authority and not simplicitor the orders passed by the Administrative Authorities alone exercising statutory powers under the special enactments. Consequently, in my view, this decision does not also help the appellants in this case to successfully plea for the application of the principles of res judicata. This ground of challenge also fails and shall stand rejected. 9. So far as the contentions on merits are concerned, as indicated earlier, both the Courts below have considered the materials placed before them in their proper perspective and recorded concurrent findings of fact that the contesting defendant-appellants were unable to substantiate either title or tenancy rights as non-occupancy tenants in possession of the properties. Cogent and convincing reasons have .been given to belie the credibility of the changes effected in the revenue records behind the back of the affected parties, like the plaintiffs and the findings consequently recorded for sufficient and justifying reasons on the basis relevant materials produced and noticed therein, in my view, do not suffer from any error of law or perversity of approach in the manner of appreciation of the materials so as to warrant any interference in these second appeals. 10. The learned Counsel for the appellants advanced yet another forceful argument that at best the decree could have been only for a joint possession and the relief of recovery of possession as granted could not have been allowed in favour of the plaintiffs. I am afraid, I can countenance such a plea also on the indisputable factual materials brought on record. In the decision of the learned first Appellate Judge rendered in the appeal before him, which is the subject matter of R.S.A. No. 111 of 1990.
I am afraid, I can countenance such a plea also on the indisputable factual materials brought on record. In the decision of the learned first Appellate Judge rendered in the appeal before him, which is the subject matter of R.S.A. No. 111 of 1990. In parargaph 15, it is specifically pointed out that the contesting defendants/appellants took possession of the plaintiffs share in the suit land forcibly only three months prior to the institution of the suit. This finding was based on the categorical admission by the very witness examined on behalf of the contesting defendants, who admitted that the disputed property principally consisted of three fields and that out of those three fields Lajpat possessed only one field and the remaining number was occupied by him only in the year 1983. This finding and the piece of material brought on record which has been relief upon to record such finding, would go to show that the contesting parties plaintiffs alone were in respective possession of their holdings and it is only immediately on the eve of the suit, they were forcibly dispossessed. The question of granting any declaratory relief of joint possession could arise only when the entire extent was a single unit and in the absence of any material to the contra to substantiate the stand taken for the appellants, the objection to the nature of the relief granted in favour of the plaintiffs in these cases cannot also be sustained. 11. The same is the position in the other appeals also as could be seen from the findings recorded in paragraph 15 of the judgment of the learned Appellate Judge and, therefore, in these appeals also no such plea could be countenanced on behalf of the appellants. 12. So far as the appeals in R.S.As. No. 173 and 174 of 1990 are concerned, even a cursory perusal of the judgments of the Courts below would go to show that the findings recorded are well merited on the evidence on record, which has been specifically adverted to by the Courts below in support of the factual findings concurrently recorded. As a matter of fact, the very stand taken for the contesting defendants is limited, in that they never disputed the ownership of the plaintiffs at all and what was asserted was the claim of non-occupancy tenancy rights.
As a matter of fact, the very stand taken for the contesting defendants is limited, in that they never disputed the ownership of the plaintiffs at all and what was asserted was the claim of non-occupancy tenancy rights. This claim of the appellants has been carefully analysed by both the Courts below and the same came to be rejected for proper and sufficient reasons recorded, which are based on legally acceptable evidence. From the consideration undertaken by the learned first Appellate Judge in paragraphs 20 and 21 of the judgment, which gave rise to appeal in this Court in RSA No. 173 of 1990, it could be seen that the witnesses for the contesting defendant themselves admitted the possession of the plaintiffs immediately before the consolidation and that it is only on that basis the Courts below came to the conclusion that the defendant started interfering with the possession of the plaintiff over the suit land only after the orders of the Consolidation Officer and that he had no possession whatsoever, before. 13. In RSA No. 174 of 1990 also, the learned first Appellate Judge specifically found that not only there was absence of evidence to prove the possession of the appellant as claimed, for such a long period but the admission made by the very witness examined on the side of the defendants proved the possession of the plaintiff before the orders passed by the Consolidation Officer. In view of the above concurrent findings of fact recorded by both the Courts below, there is hardly any scope for this Court to re-appreciate the evidence to come to a different conclusion, particularly when nothing concrete or substantial has been pointed out for the appellants, which in their view, if taken note of by the Courts below, a different result or conclusion would have followed. In the absence of any such endeavour of proof before me, there is no justification to interfere with the factual findings recorded concurrently by both the Courts below. 14. Consequently, the appeals fail and shall stand dismissed. No costs. In RSA No. 174 of 1990, this Court while directing the deposit of a portion of the mesne profits had also ordered that the amount should be kept in deposit by means of FDRs in a Nationalised Bank, to be directed to be released subject to the result of the appeals.
No costs. In RSA No. 174 of 1990, this Court while directing the deposit of a portion of the mesne profits had also ordered that the amount should be kept in deposit by means of FDRs in a Nationalised Bank, to be directed to be released subject to the result of the appeals. In view of the fact that the plaintiff succeeded in the Courts below as also in this appeal and the defendants-appellants have lost, the plaintiff will be entitled to the release of the amount lying in FDRs in his favour after getting them renewed upto 30th November, 1998 and the office will take appropriate steps in this direction. Interim stay granted on 22.3.1990 is vacated. Appeal dismissed.