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2000 DIGILAW 240 (HP)

MATHU RAM v. HARI NAND

2000-09-08

KAMLESH SHARMA

body2000
JUDGMENT Ms. Kamlesh Sharma, J.—These two appeals (RSAs No. 416 and 435 of 1993) are being disposed of by a common judgment, as some of the parties are common, subject matter is same and the facts and law are also same. RSA No. 435 of 1993 is directed against the decree and judgment dated 4.9.1993 passed by the District Judge (Forests), Shimla whereby the appeal of the appellants-plaintiffs was dismissed as abated holding that the legal representatives of one of the respondents-defendants, namely, Bhagat Ram were not brought on record within the period of limitation. The other RSA No. 416 of 1993 is directed against the decree and judgment dated 2.11.1993 whereby the appeal of the appellants-defendants was dismissed and the decree and judgment dated 18.12.1987 of Sub Judge 1st Class (3), Shimla was affirmed. The Sub Judge had dismissed civil suit No. 58/1 of 1986 and decreed civil suit No. 13/1 of 1987. 2. Civil Suit No.58/1 of 1986 was filed by the appellants-plaintiffs Mathu Ram and Chander Singh against respondents-defendants Hari Nand and Bhagat Ram out of which RSA No.435 of 1993 has arisen. Bhagat Ram had died during the pendency of the appeal before the District Judge (Forests) and his legal representative Partap Singh has been brought on record. Civil Suit No. 13/1 of 1987 was filed by respondents-plaintiffs Hari Nand, Bhagat Ram and Nikka Ram against appellants-defendants Mathu Ram and Chander Singh besides others. After framing the issues suit No.58/1 of 1986 was consolidated with suit No. 13/1 of 1987 by order dated 24.4.1987 and after recording the evidence these were decided by a common judgment against which two appeals were filed, which were decided by the judgments and decrees impugned in these Regular Second Appeals. 3. After framing the issues suit No.58/1 of 1986 was consolidated with suit No. 13/1 of 1987 by order dated 24.4.1987 and after recording the evidence these were decided by a common judgment against which two appeals were filed, which were decided by the judgments and decrees impugned in these Regular Second Appeals. 3. Civil Suit No.58/1 of 1986 was filed on 31.3.1986 by the appellants-plaintiffs on behalf of the entire body of right holders of villages Chamayana and Bhareunthi, Pargana Chabrogti, Tehsil and District Shimla for permanent prohibitory injunction restraining the respondents-defendants Hari Nand and Bhagat Ram from asserting their ownership rights on the trees standing on the land comprised in Khasra No. 344, measuring 11-16 bighas situate in village Sanhan, Pargana Chabrogti, Tehsil and District Shimla (hereinafter called thesuit land) to the prejudice of their recognized customary rights as per wazib-ul-arz to cut and remove the trees from the suit land and also restraining the respondents-defendants from appropriating the seized timber as per DRs No. 34 and 35 dated 7.1.1986. 4. The respondents-defendants resisted the suit on the grounds, inter alia, that neither the appellants plaintiffs nor the residents of villages of Chamayana and Bhareunthi have any right, title and interest in the suit property, which was owned by the State of Himachal Pradesh and was in possession of the predecessors-in-interest of the respondents-defendants as non-occupancy tenants on whom the proprietary rights were conferred by order dated 13.5.1964 passed by the Compensation Officer, Mahasu. It was admitted that by his order the Compensation Officer held that trees standing on the suit land will remain the property of the State of Himachal Pradesh but this part of the order being against the law of the land was void ab initio and not binding on them. It was also asserted that neither the appellants-plaintiffs nor the other right holders have exercised their rights over the suit land as alleged by them. They had filed false and frivolous complaints against the respondents-defendants, as such DRs No.34 and 35 dated 7.1.1986 were cancelled. The State of Himachal Pradesh by filing written statement asserted that the defendants have not got any right over the trees standing over the suit land and the claim of the plaintiffs in respect of the customary rights has been admitted. 5. From the pleadings of the parties, the following issues were framed:— 1. The State of Himachal Pradesh by filing written statement asserted that the defendants have not got any right over the trees standing over the suit land and the claim of the plaintiffs in respect of the customary rights has been admitted. 5. From the pleadings of the parties, the following issues were framed:— 1. Whether the plaintiff is entitled to the permanent prohibitory injunction as prayed? OPP. 2. Whether the defendants are estopped to claim the ownership of the trees standing over the suit land by their own act, conduct, deeds and agreements? OPP. 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD. 6. Civil Suit No. 13/1 of 1987 was filed on 24.12.1986 against the appellants-defendants for permanent prohibitory injunction restraining them from interfering in any manner with their possession over the suit land and also from cutting any tree therefrom. Despite the order dated 13.3.1964 of the Compensation Officer the respondents-plaintiffs claimed their right over the trees standing on the suit land on the basis of law laid down by the Supreme Court in Divisional Forest Officer, Sarahan Forest Division of Shimla Forest Circle, Himachal Pradesh and another v. Daut and others, AIR 1968 SC 612, and by this Court in Daulat Ram and others v. State of Himachal Pradesh and others, 1979 Sim. LC. 215. 7. On the other hand the appellants-defendants in their written statement took preliminary objections, inter alia, that the suit was liable to be stayed under Section 10 of the Civil Procedure Code and the respondents-plaintiffs having not come to the court with clean hands, they were not entitled to the discretionary relief of injunction. On merits, their case was that the order dated 13.3.1964 of the Compensation Officer in respect of the trees became final between the parties and the respondents-plaintiffs were estopped from claiming rights over the trees in the suit land on the principle of constructive res judicata. They asserted their customary rights over the trees standing over the suit land as per wazib-ul-arz. 8. On the pleadings of the parties the following issues were framed:— 1. Whether the plaintiff is entitled to the relief of injunction as prayed? OPP. 2. Whether the present suit is liable to be stayed under Section 10 of the CPC? OPD. 3. Whether the suit is bad for non-joinder of necessary parties? OPD. 4. 8. On the pleadings of the parties the following issues were framed:— 1. Whether the plaintiff is entitled to the relief of injunction as prayed? OPP. 2. Whether the present suit is liable to be stayed under Section 10 of the CPC? OPD. 3. Whether the suit is bad for non-joinder of necessary parties? OPD. 4. Whether the plaintiffs are estopped from challenging the orders of the Compensation Officer, Mahasu? OPD. 5. Whether the suit is barred by the principle of res judicata? OPD. 6. Relief, 9. The Sub Judge had dismissed the suit of the appellants-defendants holding, inter alia, that they have failed to prove their customary rights in the trees standing on the suit land, which is found to be the exclusive property of the respondents-plaintiffs after conferment of the proprietary rights on them under the H.P. Abolition of Big Landed Estate and Land Reforms Act (hereinafter called as the Act). On the other hand, the suit of the respondents-plaintiffs was decreed for permanent prohibitory injunction restraining the appellants-defendants from interfering in their possession over the suit land and also from cutting any tree standing thereon. The plea of the appellants-defendants that the suit of the respondents-plaintiffs was barred by the principle of res judicata was dismissed on the ground that the appellants-defendants are not party to the litigation before the Compensation Officer. The plea of estoppel was also rejected holding that the condition of fetter upon the rights of the respondents-plaintiffs was against law. 10. The appellants-defendants filed two appeals before the District Judge, which were registered as C.A. No 45-S/13 of 92/88/and C.A No. 46-S/13 of 92/88. On the death of respondent-plaintiff Bhagat Ram an application under Order 22 Rule 4 C.P.C. for bringing on record his legal representatives was filed in C.A No. 4G-S/13 of 92/ 88, which was listed on 18.5.1993, on which date identical application was filed in the another appeal No. 45-S/13 of 92/88. In the applications in both these appeals identical issues were framed on 20.5.1993 i.e.:— 1. Whether the application is within limitation? OPA. 2. Who are the legal representatives of deceased Bhagat Ram? OPA. 3. Relief. Appellant-defendant Mathu Ram appeared as his own witness in both the appeals and closed his evidence. Respondents-Plaintiffs did not give any evidence. In the applications in both these appeals identical issues were framed on 20.5.1993 i.e.:— 1. Whether the application is within limitation? OPA. 2. Who are the legal representatives of deceased Bhagat Ram? OPA. 3. Relief. Appellant-defendant Mathu Ram appeared as his own witness in both the appeals and closed his evidence. Respondents-Plaintiffs did not give any evidence. On almost identical pleadings and evidence the District Judge passed contradictory orders on 5.7.1993 holding that application in appeal No. 46-S/13 of 1992/88 filed on 22.4.1993 was within limitation, whereas, application in appeal No.45-S/13 of 1992/88 filed on 18.5.1993 was barred by limitation and the appeal stood abated as a whole, as sufficient cause for setting aside abatement and condoning the delay was neither pleaded nor proved. So far appeal No.46-S/13 of 92/88 is concerned, it was heard on merits by bringing on record the legal representatives of deceased Bhagat Ram but dismissed by the impugned decree and judgment affirming the findings of the Sub Judge. Hence, the present regular second appeals. 11. RSA No.435 of 1993 arises out of the impugned decree and judgment dated 4.9.1993 whereby the appeal of the appellants-defendants was dismissed as abated on the death of respondent-defendant Bhagat Ram. It was admitted on 17.5.1994 on the following substantial questions of law:— 1. When two cross-suits have been consolidated and have been disposed of by a same judgment, in the appeals preferred from the Judgment and Decree of both the suits, would the legal representatives brought in one appeal to ensure for the benefit of other appeal? 2. When two cross-suits have been disposed of by single judgment, was it not imperative for the learned Appellate Court to have consolidated the appeals to be heard together. On account of substitution of legal representatives in one appeal could the second appeal be dismissed having been abated? 3. Whether the judgment of the learned lower appellate Court has erred in law in dismissing the appeal having been abated on account of the death of the defendant whose estate was duly represented by surviving respondents? 12. On account of substitution of legal representatives in one appeal could the second appeal be dismissed having been abated? 3. Whether the judgment of the learned lower appellate Court has erred in law in dismissing the appeal having been abated on account of the death of the defendant whose estate was duly represented by surviving respondents? 12. In the facts and circumstances discussed hereinabove, the District Judge was not justified in dismissing the appeal No.45-S/13 of 92/88 as abated and hearing another appeal on merits after bringing on record legal representatives of a deceased respondent-plaintiff who was common in both the appeals, which had arisen out of the common impugned decree and judgment of the Sub Judge passed after joint trial of the cross-suits of the parties. The pleadings and evidence in the applications for bringing on record the legal representatives of deceased Bhagat Ram were also identical in both the appeals. Though the appeals were not consolidated and the joint trial of the applications for bringing on record the legal representatives of deceased (Bhagat Ram) was not held by the District Judge yet in view of the fact that both the suits were consolidated and common decree and judgment were passed by the Sub Judge, the delay of only twelve days in filling the application was required to be condoned and abatement set aside even if the appellants-defendants were not able to strictly plead and prove the sufficient cause, in exercise of powers under Order 41 Rule 33 C.P.C. In the facts and circumstances of the present case even the appellants-defendants could file one appeal to assail the common decree and judgment passed by the Sub Judge in the cross-suits as not only the parties were common but the issues arising in the suits were also inter-linked inter-twined and inter-dependent. Therefore, the order bringing on record the legal representatives of common deceased respondent-plaintiff in one appeal could ensure for the benefit of other appeal after condoning the delay and setting aside the abatement in the other appeal. The proper course for the District Judge was to consolidate both the appeals and decide them on merits by common decree and judgment. Therefore, the order bringing on record the legal representatives of common deceased respondent-plaintiff in one appeal could ensure for the benefit of other appeal after condoning the delay and setting aside the abatement in the other appeal. The proper course for the District Judge was to consolidate both the appeals and decide them on merits by common decree and judgment. Above all, the other respondent-plaintiff being co-owner with the deceased respondent-plaintiff could represent his estate and delay in bringing on record legal representatives of deceased respondent-plaintiff was required to be condoned and dismissal of appeal as abated is not just and proper. The substantial questions of law are decided accordingly. — 13. In this view of the matter, the impugned decree and judgment in RSA No. 435/93 deserves to be set aside but instead of remanding the case to the District Judge for decision on merits, in the peculiar facts and circumstances of the case, it will be proper to decide the case on merits alongwith RSA No. 416 of 1993. Accordingly, this Court would proceed to consider the case of the appellants-defendants on merits. 14. RSA No. 416 of 1993 was admitted on 24.12.1993 on the following substantial questions of law:— 1. Whether the order of the Compensation Officer and the mutation attested in accordance with the said order could be challenged in the Civil Court. Is the jurisdiction of the Civil Court barred? 2. Whether the suit of the plaintiff-respondents was barred by limitation on account of applicability of Section 100 of Limitation Act? 3. Whether the suit of the plaintiff-respondents was barred under the provisions of Order 11 Explanation VIII of Code of Civil Procedure? 4. Whether the State of Himachal Pradesh is necessary party and the suit ought to have been dismissed on account of non-joinder of necessary parties? 5. Whether the recognised customary rights in Wazib-ul-arz could be defeated by the operation of the H.P. Abolition of Big Landed Estates Act to deny the exercise of such rights which had been exercised since time immemorial? 15. There are certain undisputed facts which are required to be taken into consideration for appreciating the respective contentions of the learned Counsel for the parties. The respondents-plaintiffs and others moved an application Ex. P-1 for conferment of proprietary rights under H.P. Tenancy and Land Reforms Act on 5.4.1963. By filing reply Ex. 15. There are certain undisputed facts which are required to be taken into consideration for appreciating the respective contentions of the learned Counsel for the parties. The respondents-plaintiffs and others moved an application Ex. P-1 for conferment of proprietary rights under H.P. Tenancy and Land Reforms Act on 5.4.1963. By filing reply Ex. P-2 it was objected to by the Collector of the then District Mahasu, inter alia, on the ground that there are valuable trees standing on the suit land which are under the management and control of the Forest Department and no proprietary rights could be granted in respect thereof. It was also pointed out that the suit land falls within second class protected forest. However, ultimately the application was allowed and the proprietary rights of the suit land were granted in favour of the respondents-plaintiffs and others and in respect of the trees standing thereon it was held that these remain the property of the land owner i.e. the Government. This order was passed in view of the then existing judgment of the Judicial Commissioner that the trees are not covered by the definition of the land as given in the Act. Neither the respondent-plaintiff nor the Government assailed the order dated 13.3.1964 of the Compensation Officer and mutation thereof Ex. PW-l/B was also attested on 6.8.1964 specifically stating that the trees will continue to be the property of the Government but in the later revenue record the entry in respect of the trees was found missing. 16. In their judgment delivered on 30.10.1967 in Divisional Forest Officer v. Daut and others (supra) the learned Judges of the Supreme Court delt with the definition of the land as given in Section 2(5) of the Act and interpreted the expression right, title and interest in the land of tenancy as wide enough to include the trees standing on the land. It was also observed that under Section 8 of the Transfer of Property Act also unless a different intention is expressed or implied a transfer of land would include the trees standing on it. It was also observed that under Section 8 of the Transfer of Property Act also unless a different intention is expressed or implied a transfer of land would include the trees standing on it. Regarding the contention that the trees were really forest trees and it was never the intention of the legislature to vest forest trees in the tenants acquiring land under Section 11 of the Act, the learned Judges observed that no such contention was raised in the written statement filed by the appellants before them and it would have been different had it been proved that a portion of the area transferred was a natural forest. Dismissing another contention raised that if it was the intention to vest the trees in the tenant acquiring land under Section 11 of the Act, it would have been expressly provided therein as it has been done in Section 84(a)(i) of the Act, it was held :— “I the contention of the learned Counsel were correct, even cultivable land which is expressly mentioned in Section 84(a)(i) would not vest in the tenant under Section 11 of the Act. Section 11 is drafted very simply and under subsection (6) the tenant becomes the owner of the land comprised in the tenancy on and from the date of grant of the cer ificate, and it is expressly provided that the right, title and interest of the land owner in the said land shall determine. In the context the word "owner" is very comprehensive indeed, and it implies that all rights, title and interest of the landowner pass to the tenant. Further, it seems to us that it would lead to utter confusion if the contention of the learned Counsel is accepted. There would be interminable disputes as to the rights of the erstwhile landowners to go on the lands of erstwhile tenants and cut trees or take the fruit. Moreover, under Section 15 of the Act we would, following the same reasoning, have to hold that the trees on the land of the landowner did not vest in the State. This could hardly have been the intention." In view of the law laid down by the Supreme Court in Divisional Forest Officer v. Daut and others (supra) the respondents-plaintiffs asserted their right on the trees standing on the suit land, which resulted into the present litigation. 17. This could hardly have been the intention." In view of the law laid down by the Supreme Court in Divisional Forest Officer v. Daut and others (supra) the respondents-plaintiffs asserted their right on the trees standing on the suit land, which resulted into the present litigation. 17. Learned Counsel for the appellants-defendants has vehemently argued that the Civil Suit filed by the respondents-plaintiffs claiming right over the trees standing on the suit land was barred by the principle of res judicata in view of the order dated 13.3.1964 of the Compensation Officer as provided under Explanation 8 of Section 10 CPC. Both the Court have rightly rejected this contention of the appellants-defendants on the ground that in the proceedings before the Compensation Officer the appellants-defendants and the other right holders of the village(s) in which the suit land is situated, were not party, therefore, not bound by the said order. Admittedly, the proceedings before the Compensation Officer were between the respondents-plaintiffs and the State, whereas, In both the Civil Suits the appellants-defendants and other right holders are one of the parties and they could claim their customary rights over the trees standing in the suit land; whether they are able to establish the same or not is a separate question, which shall be examined later, if necessary. The substantial question of law No. 3 is answered accordingly. 18. The order dated 13.3.1964 of the Compensation Officer may not be res judicata between the parties in the present litigation but it was final between the appellants-defendants and the State of Himachal Pradesh which was impleaded proforma defendant in the suit filed by the appellants-defendants. It is further urged by learned Counsel for the appellants-defendants that if either party was aggrieved by the order dated 13.3.1964 of the Compensation Officer it could assail the same within a period of limitation of one year as provided under Article 100 of the Schedule to the Limitation Act, 1963, whereas the respondents-plaintiffs have filed the suit on 24.12.1986. In support of this submission the learned Counsel has relied upon the judgment of the Supreme Court in Ajudh Raj and others v. Moti, S/o Mussadi, AIR 1991 SC 1600, wherein it is held in para 5 that:— "The principle for deciding the question of limitation in a suit filed after an adverse order under a Special Act is well settled. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted and if no particular Article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been the subject-matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. On the other hand, if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eye of law and it is not necessary to set it aside; and such a suit will be covered by Article 65......." 19. On the other hand, learned Counsel for the respondents-plaintiffs has urged that the order dated 13.3.1964 of the Compensation Officer in respect of the trees standing on the suit land being against. law as laid down by the Supreme Court in Divisional Forest Officer v. Daut and others (supra) could be ignored by the respondents-plaintiffs and they were within their rights to assert their ownership over the trees standing on the suit land. According to the learned Counsel for the respondents-plaintiffs, by interpreting the provisions of Section 11 read with Section 2(5) of the Act the Supreme Court has declared the law that on the conferment of the proprietary rights of the tenancy land the tenant also becomes owner of the trees standing thereon, as he acquires the right, title and interest of the tenancy land. In view of this declaration of law the condition or fetter put by the Compensation Officer in his order dated 13.3.1964 in respect of the trees was of no consequence whatsoever. 20. This Court has given its best consideration to the respective contentions of the learned Counsel for the parties. By now it is well settled that the Supreme Court only interprets the law as it stands and does not amend the law. Articles 32, 141 and 142 of the Constitution of India are comprehensive enough to enable the Supreme Court to declare the law and to give such directions or pass such orders as are necessary to do complete justice. Articles 32, 141 and 142 of the Constitution of India are comprehensive enough to enable the Supreme Court to declare the law and to give such directions or pass such orders as are necessary to do complete justice. The effect of such declaration is that it is the law and it was the law since the beginning unless specifically prospective effect is given L.C. Golak Nath and others v. State of Punjab and another, AIR 1967 SC 1643. 21. In view of this legal position both the Courts below have rightly held that with the declaration of law in Divisional Forest Officer v. Daut and others (supra), it became clear that the respondents-plaintiffs are the owners of the trees standing .on the suit land and the condition or fetter contained in the order dated 13.3.1964 of the Compensation Officer that the State of Himachal Pradesh will continue to be owner of the trees, was rendered futile being against law, hence need not be challenged by the respondents-plaintiffs. They were compelled to file the Civil Suit when their enjoyment over the trees standing on the suit land was threatened or interfered with by the appellants- defendants and the State of Himachal Pradesh. In this view of the matter the submission made by the learned Counsel for the appellants-defendants that the suit of the respondents-plaintiffs was barred by limitation does not arise and the case law cited by him including Ajudh Raj and others v. Moti, S/o Mussadi (supra) in support of his submission does not apply. Further the suit of the respondents-plaintiffs was maintainable as the order dated 13.3.1964 of the Compensation Officer in respect of the trees standing on the suit land became inoperative in view of the declaration of law by the Supreme Court in Divisional Forest Officer v. Daut and others (supra). The Substantial Questions of Law Nos. 1 and 2 are decided accordingly. 22. Both the Courts have concurrently held that the State of Himachal Pradesh is not necessary party in the suit filed by the respondents-plaintiffs as no relief was claimed against it and in the suit filed by the appellants-defendants the State of Himachal Pradesh is impleaded as proforma defendant and after the consolidation of both the suits joint trial was held and non-impleadment of the State of Himachal Pradesh in the suit of the respondents-plaintiffs was of no effect. Learned Counsel for the appellants-defendants has not been able to substantiate that the suit of the respondents-plaintiffs was bad for non-joinder of the State of Himachal Pradesh. Substantial question of law No. 4 is decided accordingly. 23. So far substantial question of law No. 5 is concerned, the question of customary rights of the appellants-defendants over the trees standing on the suit land, as claimed by them, need not be answered in view of the findings arrived at by this Court that the respondents-plaintiffs were the owners of the trees standing on the suit land. 24. The result of above discussion is that in the appeal RSA No. 435 of 1993 the decree and judgment of the District Judge (Forests), Shimla, whereby it was held that the appeal before the said Court had abated, are set aside but after hearing it on merits the RSA No. 435 of 1993 is dismissed. The other appeal RSA No. 416 of 1993 is also dismissed having no merits. As a consequence, the decree and judgment of the trial Court are affirmed whereby the suit of the appellants-defendants was dismissed and the suit of the respondents-plaintiffs was decreed. There is no order to costs. Appeal dismissed.