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2003 DIGILAW 1007 (PNJ)

Kedar Nath (Dead) through LRs. v. Chawali

2003-07-23

V.K.BALI

body2003
JUDGMENT V.K. Bali, J. (Oral) - This is a plaintiffs Regular Second Appeal. Whereas, the suit of the plaintiffs for possession with regard to two parcel of lands, measuring 182 kanals and 35 kanals 12 marlas, situate in village Bassi, Tehsil and District Mohendergarh, was decreed by learned Court vide judgment and decree dated 17.5.1975, appeal preferred by the defendant-respondents was partly allowed. Whereas, appeal pertaining to the land measuring 182 kanals was dismissed, the one pertaining to 35 kanals 12 marlas of land was allowed. Against the judgment and decree dated 5.2.1980 passed by learned Appellate Court upholding the judgment and decree of learned trial Court in favour of the plaintiffs pertaining to 182 kanals of land, the defendants preferred Regular Second Appeal bearing No. 704 of 1980, which was dismissed on 2.4.1980. The same very Honble Judge, who dismissed the appeal filed on behalf of the defendants on 2.4.1980, admitted the present appeal, pertaining to 35 kanals 12 marlas of land, preferred by the plaintiff-appellants, on 5.9.1980. 2. There is no need to go into the details of the case as, suffice it to mention that with regard to the two parcels of land, as mentioned above, consistent findings of learned Courts below are that the plaintiffs are the owners on the basis of title insofar as land measuring 182 kanals is concerned and on the basis of inheritance from Hardeva and Balla insofar as 35 kanals 12 marlas of land is concerned. As mentioned above, the plaintiffs have been held to be owners on the basis of title as also inheritance in tune with the pleadings made in the plaint. Despite the findings of learned trial court pertaining to the ownership, as mentioned above, suit of the plaintiffs with regard to the land measuring 35 kanals 12 marlas has been dismissed by learned Appellate Court reversing the judgment of learned trial Court on the sole ground that the defendants were tenants of the parcel of land measuring 35 kanals 12 marlas and the issue pertaining to jurisdiction of civil court to entertain and try the civil suit. Obviously, findings on the issue aforesaid, which was framed by learned trial Court as Issue No. 14-A, would depend on as to whether the defendants were the tenants of the parcel of land measuring 35 kanals 12 marlas. 3. Obviously, findings on the issue aforesaid, which was framed by learned trial Court as Issue No. 14-A, would depend on as to whether the defendants were the tenants of the parcel of land measuring 35 kanals 12 marlas. 3. Concededly, prior to institution of present suit for possession on the basis of title, the plaintiffs instituted a suit before the revenue Court pleading inter-se relationship of landlord and tenant. Concededly as well, the defendants in the suit aforesaid took a plea that the plaintiffs were not the owners of the suit land. They, thus, repudiated the title of the plaintiffs. Constrained, under the circumstances, referred to above, the plaintiffs withdrew the suit from the revenue Court and filed the suit giving rise to the present appeal. Insofar as learned Appellate Court is concerned, finding on Issue No. 14-A was returned against the plaintiffs, primarily on the ground that repudiation of title before the revenue court pertained to only one parcel of land, namely, 182 kanals, inasmuch as, there was no suit filed before the revenue court pertaining to second parcel of land, namely, 35 kanals 12 marlas. Learned Appellate Court, after examining the records of the case, came to the conclusion that the suit that was instituted before the revenue Court by the plaintiffs pertained to the land measuring 182 kanals only. As on today, there is no dispute on this aspect of the matter that the suit before the revenue Court, was with regard to the land measuring 182 kanals only. 4. Having given in brevity the pleadings of the parties and the result of the suit before learned trial Court as also Appellate Court, time is now ripe to evaluate the contentions of learned counsel raised in support of this appeal, which only pertain to the land measuring 35 kanals 12 marlas. It has vehemently been argued by learned counsel that inspite of the fact that suit before the revenue Court did not pertain to the second piece of land measuring 35 kanals 12 marlas, in the proceedings of the present suit as well, the defendants had denied the title of the plaintiffs. Once, they have denied the title of the plaintiffs, naturally, it could not be their case that they were tenants over the property in dispute. Once, they have denied the title of the plaintiffs, naturally, it could not be their case that they were tenants over the property in dispute. They moved an application for amendment of written statement under Order 6 Rule 17 of Code of Civil Procedure almost two years after the institution of the suit wherein, for the first time, they pleaded that they were the tenants. This amendment was allowed. They later moved yet another application for amendment of the written statement claiming adverse title. That application was, however, dismissed. Even though there was a complete denial with regard to title of the plaintiffs in the written statement that had earlier been filed but in the amended written statement also, there was no mention that who was the owner of the property in dispute and in other words, under whom the defendants were cultivating the suit land as tenants and as to how much was the rate of rent. Paragraph 9-A that was inserted in the written statement, after translating into English, runs thus :- "It is stated that defendants from their fore-fathers are continuing to be the tenants of the land in dispute under the owners on the payment of rent. They are continuing to be in cultivating possession and cannot be evicted. The Civil Court has no jurisdiction to entertain the suit." Translation of Hindi version of paragraph 9-A aforesaid has been done by the Court in presence of learned counsel representing the parties, who accept the same as correct. 5. Pleadings made by the defendants from time to time reflect contradictory pleas that were taken. As mentioned above, in the original written statement filed on their behalf, there was a complete denial with regard to title of the plaintiffs. They, however, amended the written statement by inserting paragraph 9-A, reproduced above after translating the same into English. They moved yet another application for amendment of written statement seeking insertion of the plea of adverse possession which, as mentioned above, was dismissed. Even if one ignores the contradictory pleas that have been taken by the defendants from time to time, the significant question that still arises for consideration is as to whether even in Paragraph 9-A aforesaid, it was an admission on the part of the defendants that the plaintiffs are the owners of the property in dispute. Even if one ignores the contradictory pleas that have been taken by the defendants from time to time, the significant question that still arises for consideration is as to whether even in Paragraph 9-A aforesaid, it was an admission on the part of the defendants that the plaintiffs are the owners of the property in dispute. Mere assertion on their part that they were the tenants over the land in dispute and continued to be so from their fore-fathers, in considered view of this Court, would not amount to admission with regard to title of the plaintiffs of the property in dispute. As mentioned above and it may be reiterated that neither it is mentioned in paragraph 9-A of amended written statement that the defendants are tenants under the plaintiffs nor even rate of rent has been mentioned. As to under whom they were actually cultivating the land in dispute is also missing from paragraph 9-A, referred to above. In the context of facts and circumstances of this case, it could not, thus, be said that the defendants had specifically pleaded their possession on the land on the basis of their tenancy under the plaintiffs. If that be so, a mere averment that the defendants were tenants without, as mentioned above, admitting the status of the plaintiffs to be owners would not amount to admission of the defendants that the plaintiffs were owners of the property in dispute. In fact, earlier pleadings made in the written statement, coupled with denial of relationship of landlord and tenant, would amount to denial of title of the plaintiffs. Learned Appellate Court, in considered view of this Court, was not justified in reversing the judgment and decree passed by learned trial Court on the ground that suit before the revenue Court pertained to the land measuring 182 kanals only and not the land measuring 35 kanals 12 marlas without examining the pleadings in the present case. The judgment and decree passed by learned Appellate Court also can not be sustained for yet another ground that even if it was to be found that the civil Court had no jurisdiction to entertain and try the suit, the plaint had to be returned for presentation before a proper Court. What instead has been done is that the suit of the plaintiffs has been dismissed insofar as, it pertains to the land measuring 35 kanals 12 marlas. What instead has been done is that the suit of the plaintiffs has been dismissed insofar as, it pertains to the land measuring 35 kanals 12 marlas. Looked from any angle, the judgment and decree passed by learned first Appellate Court cannot be sustained. Same is, thus, set aside, restoring the judgment and decree passed by the learned trial Court. The appeal is, accordingly, allowed, leaving, however, the parties to bear their own costs. Appeal allowed.