NAGINDER SINGH v. DEVINDER SINGH — 1999 DIGILAW 290 (HP)

JUDGMENT Surinder Sarup, J.:- This appeal is by the defendants who are son and father respectively, against the judgment of the learned District Judge, Una, dated 1.9.1988 dismissing their first appeal against the judgment dated 26.12.1984 whereby the suit of the plaintiffs- respondents was decreed for joint possession along with defendant- appellant No.l Naginder Singh to the extent of their share, the plaintiffs having 5/6th share and defendant No. 1 having l/6th share in the suit land. 2. The plaintiffs-respondents had filed the suit for possession of land measuring 18 kanals bearing Khewat No.23 min, Khatauni No.97, Khasra Nos.2900,2904,2910,2911 and 2913 to 2915 as entered in Jamabandi for 1976-77, situated in vilalge Amb, Tehsil Amb, District Una (hereinafter to be called "the land in dispute"), their case was that they are the joint owners of the land in dispute alongwith defendant- appellant No.2 Chain Singh, although it was in possession of defendant-appellant No. 1 Naginder Singh (son of Chain Singh) as a trespasser. They sued for possession on the ground of being the joint owners to the extent of their share on the alleged cause of action that they are not being allowed to enter the same. 3. In their written statement, defendants-appellants took up a number of preliminary objections. First, it was contended that one Raja Raghunath Singh was the original owner of the land in dispute who died in 1918. On his death, the Court of Wards, Punjab assumed the superintendence and control of his entire estate. It was released after independence in the 5th decade of this century and since that time; the dispute regarding the succession and share of the land in dispute has been going on between the parties. Revenue litigation is still pending. Therefore, the plaintiffs-respondents could not sue for partial partition or for possession of apart without including whole of the property in dispute left behind by late Raja Raghunath Singh, of which defendant No.2 Chain Singh is the sole legal heir and owner. Hence, the suit for a part thereof, as framed, was not maintainable. 4. Secondly, it was alleged that Raja Raghunath Singh had constituted a Gaddi, of which he was a Gaddi Nashin. Defendant-appellant No.2 Chain Singh being the present incumbent of the Gaddi is entitled to succeed to the entire property left by the said Raja Raghunath Singh. Hence, the suit for a part thereof, as framed, was not maintainable. 4. Secondly, it was alleged that Raja Raghunath Singh had constituted a Gaddi, of which he was a Gaddi Nashin. Defendant-appellant No.2 Chain Singh being the present incumbent of the Gaddi is entitled to succeed to the entire property left by the said Raja Raghunath Singh. Thirdly, that the parties, who are related inter se, are governed by family custom of primogeniture under which defendant-appellant No.2 Chain Singh alone is entitled to and is the exclusive owner of the property left by Raja Raghunath Singh. Fourthly, that the State had declared and accepted Raja Lachhman Singh to be the exclusive owner and heir of Raja Raghunath Singh and the inheritance of defendant- appellant No.2 cannot be challenged in civil suit. It may be mentioned that defendant-appellant No.2 is the son of Raja Lachhman Singh. Fifthly, that defendant-appellant No.2 is entitled to the entire land in dispute even under the Sanad conferred on Raja Raghunath Singh by the then Government of India. 5. The sixth preliminary objection in the written statement was that the land in dispute was allotted to defendant-appellant No.2 under the Himachal Pradesh Ceiling on Land Holdings Act, 1972 (hereinafter to be called "the Act"). Since none of the plaintiffs-respondents challenged the order passed under the said Act, they cannot challenge the same in the civil Court. The seventh preliminary objection was that there has been previous litigation between the parties in the civil court and those suits had been dismissed. Hence, the present suit is barred by res judicata. The eighth preliminary objection was that the possession of the defendants-appellants qua the land in dispute has been adverse for more than 12 years and has thus repened into ownership. 6. Hence, the present suit is barred by res judicata. The eighth preliminary objection was that the possession of the defendants-appellants qua the land in dispute has been adverse for more than 12 years and has thus repened into ownership. 6. The other preliminary objections taken in the written statement of the defendant-appellant were that the land in dispute having been the subject-matter of proceedings under the Act and the orders having been passed by the various revenue authorities in respect of the same, the jurisdiction of the civil Court was barred in the matter; that the plaintiffs-respondents not having applied for any permissible area under the Act, their alleged land had now vested in the Government of Himachal Pradesh, which is a necessary party, but has not been impleaded as such; that defendant-appellant No. 1 is a tenant of the land in dispute, hence civil Court could not go into the matter; that having spent an amount on the improvement of the land in dispute, defendant-appellant No. 1 cannot be evicted from the same without compensation; that^ the plaintiffs-respondents are estopped by their act and conduct and lastly that the valuation of the suit is defective. 7. On merits, it was denied that the land in dispute is the joint property of the parties and it was asserted that it is in the exclusive ownership of defendant-appellant No.2 under the rule of primogeniture as well as the will executed by Raja Raghunath Singh. It was stated that the mutation had been wrongly attested in favour of the plaintiffs-respondents and thus wrong entries have been made in the Jamabandis and subsequently repeated. In view of the fact that litigation regarding the succession and share had been going on since 1950, defendant-appellant No.2 is not bound by any such mutation and wrong revenue entries. It was further denied that the defendants- appellants are the trespassers on the land in dispute and it was asserted that they are validly in possession of the same by virtue of their title and inheritance. In Para 6 of the written statement on merits, it was specifically pleaded that the suit is not tribal by the civil court. 8. It was further denied that the defendants- appellants are the trespassers on the land in dispute and it was asserted that they are validly in possession of the same by virtue of their title and inheritance. In Para 6 of the written statement on merits, it was specifically pleaded that the suit is not tribal by the civil court. 8. On the pleadings of the parties, the trial Court framed the following issues:- (1) Whether the defendant No.2 is the sole owner in possession of the suit land under the custom of primogeniture as alleged...O.P.D. (2) Whether Raja Raghunath Singh executed a valid will with regard to the suit land in favour of defendant No.2? O.P.D. (3) If issues No.(l) and (2) are not proved, whether the question of ownership by primogeniture is res judicata between the parties? ...O.P.D. (4) If issue No.(l) is not proved, whether defendant No.2 has been in possession of the suit land adversely against the interest of the plaintiff-co-sharer continuously for more than 12 years and has become its owner by adverse possession? ....O.P.D.-2. (5) Whether the defendant No. 1 is in possession of the suit land as tenant, if so, under whom and on what terms? ...O.P.D. - 1. (6) Whether this Court has no jurisdiction to try the suit? ...O.P.D. (7) Whether the suit is not properly valued for the purposes of court fee and jurisdiction, if so, what is the correct valuation? ...O.P.D. (8) Whether the suit is actually for partition. and is" bad for partial partition? ...O.P.D. (9) Whether the defendants No.l and 2 have bee allotted the suit land under the Ceiling Act, if so, its effect? ...O.P.D. (10) Whether the plaintiff is estopped from filing the suit by their act and conduct? ......O.P.D. (11) Relief. 9. Subsequently, an additional issue on the basis of the amended written statement was framed by the trial Court on 28.10.1981. The same is reproduced as follows:- (1-A). Whether the defendant No. 1 validly transferred the ownership of the suit land to the defendant No.2 through Tamlik Nama registered on 4.12.69? ......O.P.D. (11) Relief. 9. Subsequently, an additional issue on the basis of the amended written statement was framed by the trial Court on 28.10.1981. The same is reproduced as follows:- (1-A). Whether the defendant No. 1 validly transferred the ownership of the suit land to the defendant No.2 through Tamlik Nama registered on 4.12.69? ....O.P.D. This additional issue No.l-A was framed in sequence of the order passed by the trial Court i.e. the Senior Sub-Judge, Una, dated 29.9.1981 whereby the amendment of the written statement was allowed to the extent that the following plea was added by way of an amendment:- "That defendant-appellant No.2 had also become the owner of the land in dispute because defendant-appellant No.l had executed a Tamlik Nama in his favour on 4.12.1969, which is a registered one." 10. Issues No. (1) to (8) were answered against the defendants-appellants. The finding under issue No. (9) was to the effect that defendants No. 1 and 2 had been allotted the land in dispute under the Ceiling Act but it is not binding on the rights of the plaintiffs. Issue No.(10) was also decided against the defendants. However, issue No. (l-A) was answered in their favour, but with the rider that defendant-appellant No.2 could have lawfully transferred only his share and not the entire land in dispute. In view of the above findings, the suit of the plaintiffs-respondents was decreed for joint possession in the terms mentioned above. 11. In the appeal filed by the defendants-appellants, the learned lower appellate Court apart from affirming the findings of the trial Court on various issues, came to the conclusion as regards issue of the jurisdiction of the civil Court that the proceedings under the Act whereby the competent officer by his order allowed defendants No.2 to 6 to reserve the land in dispute, did not extinguish the rights of the plaintiffs in the land in dispute. It also came to the conclusion that even if it is assumed that such order did have the effect of extinguishing the rights of the plaintiffs-respondents, the same did not bar the jurisdiction of the civil Court. It also came to the conclusion that even if it is assumed that such order did have the effect of extinguishing the rights of the plaintiffs-respondents, the same did not bar the jurisdiction of the civil Court. He was also of the view that the said order of the competent officer seems to have been passed without any notice to the plaintiffs and, therefore, the same cannot be said to be a valid order so far as their right and title in the property are concerned. In other words, the learned lower appellate Court upheld the jurisdiction of the civil Court to entertain, try and decide the suit in question. 12. In the present second appeal before this Court, it has been vehemently urged by the learned counsel for the appellants that the findings of both the Courts below regarding the jurisdiction of the civil Court is erroneous in law In support of this contention, he has referred to Section 18 of the Act, which is as follows:- "18 Bar of jurisdiction. - (1) No civil court shall have jurisdiction to - (a) entertain or proceed with a suit for specific performance of a contract for transfer of land which affects the rights of the State Government to the surplus area under this Act; or (b) Settle, decide ordeal with any matter which is under this Act required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner or the Collector. (2) No order of the Financial Commissioner the Commissioner or the Collector made under or in pursuance of this "Act, shall be called in question in any court." 13. In order to substantiate his above submission, the learned counsel for the appellants has taken this Court through the relevant evidence. Ex.D-5 is a certified copy of the order of the Collector, Una, District Una, dated 9.9.1975 which was passed in land ceiling case of Chain Singh, son of Lachhman Singh of village Amb, Tehsil Amb, District Una. He is admittedly none other than appellant No.2 herein. Ex.D-5 is a certified copy of the order of the Collector, Una, District Una, dated 9.9.1975 which was passed in land ceiling case of Chain Singh, son of Lachhman Singh of village Amb, Tehsil Amb, District Una. He is admittedly none other than appellant No.2 herein. On a perusal of the operative part of the same, it would appear that by the said order, 250 Kanals and 8 Marias in village Sehari and 390 Kanals and 5 Marias in other villages was declared as surplus area with the said land owner under the provisions of the Act and further that the said surplus land would vest in the Government under Section 11 thereof. A direction was also given that the final statement showing the particulars of the land declared as surplus be prepared accordingly and Tehsildar, Amb was directed to separate the share of the said Chain Singh (appellant No.2) from other land owners in the land held jointly by him with others and which has been declared as surplus and is to vest in the Government. 14. As per the provisions of Section 20 of the Act, an appeal has been provided to any person aggrieved by any decision or order of the Collector to do so within 60 days from the date of the said decision or order. That appeal lies to the Commissioner, who has also been vested with the powers to entertain the appeal after the said period of 60 days on sufficient cause being shown. Not only that, revision petition within a statutory period of 90 days from the date of the order has also been provided under Sub-section (2) thereof before the Financial Commissioner, so as to challenge the legality or propriety of such order. 15. In view of the above statutory provisions, there is force in the submission of the learned counsel for the appellants that the jurisdiction of the civil Court was totally barred in the preset case. It needs to be stressed in this behalf that Sub-section (2) of Section 18 ibid clearly provides that no order of the Collector etc. made under or in pursuance of the Act, shall be called in question in any court. 16. It needs to be stressed in this behalf that Sub-section (2) of Section 18 ibid clearly provides that no order of the Collector etc. made under or in pursuance of the Act, shall be called in question in any court. 16. Coming to the second angle to this aspect of the case, the finding recorded by the learned lower appellate Court that the order of the competent officer under the Act seems to have been passed without any notice to the plaintiffs, is neither here nor there. It was incumbent on the learned lower appellate Court to give a categorical finding that indeed the plaintiffs had no notice of the said proceedings under the Act and that finding could only be based on the evidence to be led by the plaintiffs as the onus to prove the same was on them and not on the defendants-appellants. Instead of discharging that onus, the plaintiffs not only failed to plead any lack of knowledge of such proceedings by the Collector under the Act, they did not even lead any oral or documentary evidence to that effect. 17. Viewed in the context of the above facts and circumstances of the case, both the learned Courts below seem to have set up a new case altogether for the plaintiffs, which was not even pleaded by them. Indeed, the plaint consists of four pares only relating to their claim and cause of action. The claim is cryptically based on their alleged title on the land in dispute and their cause of action is based on the alleged ground that defendant No. 1 i.e. Naginder Singh is a trespasser on the same. 18. In reply to the submission of the learned counsel for the appellants, the learned counsel for the contesting plaintiffs-respondents has merely urged that as per the entry in the Jamabandi for the years 1965-66 vide Ex.D-7, all the co-sharers have been shown as owners of the land in dispute in the column of ownership and one of the co- sharer is Shiv Dev Singh, who has since died and is now being represented by his legal representatives namely, respondents No.9 (a) to 9(e). According to their learned counsel, these entries continued in the revenue record, but all of a sudden, in the Jamabandi for the year 1976-77 vide Ex.D-10, there is a change, carried out by the revenue authorities without any basis, whereby Naginder Singh appellant has been shown in cultivation as Gair Maurusi in the entire land in dispute. 19. The above argument of the learned counsel for the plaintiffs- respondents does not hold good in view of the bar of jurisdiction of the civil court to go into the matter, once the land had become subject matter of the proceedings under the Act. As already referred to above vide Ex.D-5, the Collector had directed the Tehsildar to separate the share of appellant No.2 from the other joint land owners, in the land which was declared surplus by the said order. There is no dispute between the parties that the land in dispute, the subject matter of the civil suit giving rise to this appeal forms part of the land which was the subject matter of the proceedings incorporated in the said order of the collector dated 9.9.1975. That being the factual position, it was open to the plaintiffs-respondents to challenge that order in appeal. revision etc. as provided under Section 20 of the Act. Both the trial Court as well as the learned lower appellate Court have completely glossed over this important aspect of the case without going into the depth of the same. It is manifest, therefore, that the impugned judgments and decrees are erroneous In law. 20. There is also force in the second submission of the learned counsel for the appellants that in view of the case set up by the plaintiffs to the effect that the land in dispute is jointly owned by them and defendants, the suit for mere possession was not maintainable. He has derived support for this submission on case law, namely Sukh Dev v. Parsi and others (AIR 1940 Lahore 473) and Smt. Murtu v. Smt. Giari etc. (1972 SLJ 209). In the first ruling of the Lahore High Court, it has been laid down that if a co-sharer is in established possession of any portion of an undivided holding, not exceeding his own share, he cannot be disturbed in his possession until partition. In Smt. Murtu v. Smt. giari ere. (1972 SLJ 209). In the first ruling of the Lahore High Court, it has been laid down that if a co-sharer is in established possession of any portion of an undivided holding, not exceeding his own share, he cannot be disturbed in his possession until partition. In Smt. Murtu v. Smt. giari ere. (1972 SLJ 209), it has been held that if a member of the family whose share has been defined, is in possession of a specific portion of the family property, then the said portion of the property is to be allotted to him on a partition being effected by metes and bounds. 21. In the light of the case law cited by the learned counsel for the appellants, as applied to the facts and circumstances of the instant case, the suit for possession was not maintainable and only a suit for partition would lie. 22. Lastly, it has been submitted by the learned counsel for the appellants and not without force, that in view of the finding of the trial Court under issue No.(l-A), the suit for mere possession without seeking a declaration was not maintainable. In order to appreciate this submission, reference has to be made to that finding whereby Tamlik Nama executed by Chain Singh, defendant-appellant No.2 in favour of his son Naginder Singh defendant-appellant No. 1 has been found to be valid. As per the said finding, the said Tamlik nama vide Ex.DW4/A has been duly proved in respect of its execution by the statement of DW-4 who is an attesting witness. Secondly, it is a registered document bearing the registration date of 4.12.1969, and the trial Court has-found that whatsoever rights defendant No.2 had in the land in dispute was transferred in favour of defendant No.l. 23. As against this, the learned lower appellate Court has completely ignored this Tamlik Nama vide Ex.DW4/A though it has been specifically taken up in the grounds of appeal before it vide ground No. 10, which is as follows :- "That at any rate defendant No.2 was in possession of the suit land as co-sharer. He has validly transferred his rights vide Tamlik Nama Ex.DW4/A. Finding to the contrary by the lower court are wrong. No decree under the law can be granted to the respondents/plaintiffs in this suit." 24. He has validly transferred his rights vide Tamlik Nama Ex.DW4/A. Finding to the contrary by the lower court are wrong. No decree under the law can be granted to the respondents/plaintiffs in this suit." 24. It needs to be stressed here that being the Court of first appeal .it was incumbent on the learned lower Court to discuss the entire evidence, including the said document Ex.DW-4/A and give his findings thereon, especially when a specific ground had been taken to that effect in appeal before him. The learned Court has thus erred on this ground also. 25. The learned counsel for the plaintiffs-respondents has argued that none of the defendants i.e. Naginder Singh or Chain Singh stepped into the witness box in support of their case in the written statement. Be that as it may, they examined Onkar Singh who deposed that he was the special power of attorney of Raja Chain Singh i.e. defendant No.2. He also produced in evidence special power of attorney vide Ex.DW5/A. The plaintiffs-respondents had ample opportunity to cross-examine him, a perusal of which reveals that he was subjected to a searching and lengthy cross-examination. But there is nothing in the same by which the plaintiffs-respondents would stand to gain or conversely goes against the claim or the case set up by the defendants-appellants. 26. In fairness to the learned counsel for the plaintiffs-respondents, he has submitted that this being a second appeal, this Court can only interfere if a substantial question of law is involved and is formulated. In support of his submission, he has placed reliance on three recent decisions of the Supreme Court, namely, Kshitish Chandra Purkait v. Santosh Kumar Purkait and others (1997) 5 Supreme Court Cases 438), Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor (1999) 2 Supreme court Cases 471) and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others (1999) 3 Supreme Court Cases 722). 27. 27. Applying the law laid down by the Supreme Court in the above referred to three decisions, this Court is of the considered view that the present case does not merely involve a question of law, but substantial questions of law which straightaway arises on the facts and circumstances^ of the instant case, in the light of the above discussion, is whether the civil Court had the jurisdiction to try and decide the suit of the plaintiffs-respondents in view of the bar created under 18 of the Act, as also the hierarchy of quasi judicial authorities provided under Section 20 thereof for appeal, revision etc. against the order of the Collector dated 9.9.1975 vide Ex.D-5. As already indicated above, the answer to that question is an emphatic "NO". The second substantial question of law which arises herein is whether the suit for joint possession was maintainable, instead of either for declaration and possession, in view of the validity of the Tamlik Nama Ex,DW4/A, or for partition, in view of the admitted facts of the case. The answer to this question has also to be in the negative. 28. As laid down by the Supreme Court in Kondiba Dagudu Kadam v. Savitribai Sopan Gujar and others (1999) 3 Supreme Court Cases 722), the High Court is well within its right in second appeal to substitute its own opinion for that of the first appellate Court, when it finds that the conclusions drawn by the said Court are erroneous being contrary to the mandatory provisions of law applicable to the facts of a given case, which is the position in the present case in view of the discussion and reasons recorded here above. 29. For the reasons recorded above, this appeal is accepted. Consequently, the judgments and decrees of the two Courts below are set-aside and the suit of the plaintiffs-respondents is dismissed. In view of the substantial legal points involved herein, the parties are left to bear their own costs of this appeal. .