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2004 DIGILAW 29 (HP)

KALI RAM v. STATE OF H. P.

2004-03-02

R.L.KHURANA

body2004
JUDGMENT R.L. Khurana, J.—Both the above noted two appeals arising out of suit No. 118/1 of 1991 are being disposed of by this single judgment. 2. Briefly, the facts of the case leading to the present two appeals may be thus stated. The appellant/plaintiff filed a suit for declaration and injunction. It was pleaded that he is the owner and in possession of the land in dispute measuring 19 Bignas 2 Biswas comprising of Khasra Nos. 632 and 680 of Chak Kuthar, Tehsil Theog, District Shimla and that the order dated 4.12.1984 passed by the Assistant Collector 1st Grade, Theog, for his ejectment was wrong and illegal. 3. Claiming title qua the land in dispute, the plaintiff pleaded that the land in dispute was earlier owned by the then Ruler of Balson State. The father of the plaintiff was inducted as a tenant thereon in lieu of services rendered. Half of the agricultural produce was being paid as rent. On the coming into force of the H.P. Land Holding and Ceiling Act, the land in dispute was wrognly shown as surplus by the owner, that is, the then Ruler of Balson State. The land in dispute, thus, on having been declared as surplus came to be mutated in the name of the State of H.P. (defendant No. 1), however, plaintiff continued to be in possession thereof. On the land in dispute having vested in the State of H.P. proceedings under Section 163, H.P. Land Revenue Act were initiated against the plaintiff for his ejectment and an order came to be wrongly made against him on 4.12.1984. It was further pleaded that the State defendant No. 1 has started interfering with his possession over the land in dispute. In the alternative the plaintiff claimed to have become the owner of the land in dispute by adverse possession. 4. Initially the suit was filed only against the State as the sole defendant. During the pendency of the suit an application under Order 1 Rule 10, Code of Civil Procedure, came to be made by respondent Matha for being impleaded as a party on the ground that he was in possession of land comprising of khasra No. 680 out of the land in dispute. Such application was allowed by the learned trial Court and the said Matha was ordered to be impleaded as defendant No. 2. 5. Such application was allowed by the learned trial Court and the said Matha was ordered to be impleaded as defendant No. 2. 5. Amended plaint was filed by the plaintiff in which he impleaded the abovesaid Matha as defendant No. 2. It was pleaded that defendant No. 2 was not in possession of any part of the land in dispute and that he was causing interference with the possession of the plaintiff by asserting his possession over Khasra No. 680. 6. Defendant No. 1, the State of H.P., while resisting the suit pleaded that land in dispute on having been declared surplus by the then Ruler of Balson State came to be vested in the State under the provisions of H.P. Land Holdings and Ceiling Act, 1973. The plaintiff or his father was never in possession thereof in any capacity at such time. It was pleaded that subsequently the plaintiff came into forcible and illegal possession thereof. Proceedings for his ejectment were accordingly initiated and an area of his ejectment came to be validly and legally passed against him on 4.12.1984. Legal objections as to jurisdiction of the Court, limitation, estoppel, and maintainability of the suit were also taken. 7. Defendant No. 2 while resisting the suit asserted his possession over the land comprising of khasra No. 680. He claimed to have been inducted as a tenant qua this land by the then Ruler of Balson State on payment of annual rent of Rs. 60. It was further averred that fruit trees have been planted in such land by him. He further claimed to have acquired proprietary rights qua this land under H.P. Tenancy and Land Reforms Act, 1972. 8. The learned trial Court though found the plaintiff to be in possession of the land in dispute, held that neither he was in possession as a tenant nor he had acquired title to the land in dispute by adverse possession. The order dated 4.12.1984 passed by the Assistant Collector 1st Grade was held to be valid. The suit qua declaration was held to be barred by time. The learned trial Court also held that defendant No. 2 was not in possession of Khasra No. 680 as claimed by him. The order dated 4.12.1984 passed by the Assistant Collector 1st Grade was held to be valid. The suit qua declaration was held to be barred by time. The learned trial Court also held that defendant No. 2 was not in possession of Khasra No. 680 as claimed by him. On the basis of the findings recorded on various issues, the learned trial court on 15.6.1998 dismissed the suit of the plaintiff in so far as the relief of declaration was concerned. However, a decree for injunction was granted in favour of the plaintiff and against defendant No. 1 restraining it from interfering in the possession of the plaintiff over the land in dispute save and except in accordance with law. It was further clarified that defendant No.l could eject the plaintiff from the land in disptue in pursuance of the order dated 4.12.1984 passed by the Assistant Collector 1st Grade. 9. The judgment and decree dated 15.6.1998 as passed by the learned trial Court were assailed by the plaintiff as well as defendant No. 2 by way of two separate appeals before the learned District Judge, Shimla. 10. The learned District Judge on 24.9.2003 dismissed the appeal preferred by the plaintiff. He, however, allowed the appeal of the defendant No. 2, thereby modified the judgment and decree of the learned trial Court. It was held that the defendant No. 2 was in possession of the land comprising of khasra No. 680, out of the land in dispute, as a tenant. The suit of the plaintiff qua this land was, therefore, dismissed. Rest of the decree for injunction in respect of land comprised in khasra No. 632 passed in favour of the plaintiff was maintained. 11. Aggrieved the plaintiff has come up before this Court by way of the present two appeals, that is, one against the dismissal of his appeal and the second against the allowance of the appeal preferred by the defendant No. 2. 12. At the very out-set it was contended by the learned Counsel for the plaintiff-appellant that defendant No.2 was wrongly impleaded as a party to the suit. The plaintiff is the dominus litis and as such could not have been compelled to add defendant No. 2 as a party to the suit especially when no relief was claimed by the plaintiff against him in the suit filed. 13. The plaintiff is the dominus litis and as such could not have been compelled to add defendant No. 2 as a party to the suit especially when no relief was claimed by the plaintiff against him in the suit filed. 13. Be it stated that the order passed by the learned trial Court on the application made by defendant No. 2 for being impleaded as a party to the suit was never assailed by the plaintiff either by way of a revision or in the appeal before the learned first appellate Court. Therefore, the question arising is whether the plaintiff can be allowed to raise the contention in the present second appeal. 14. The learned Counsel for the plaintiff has contended tha the question of adding defendant No. 2 goes to the root of the jurisdiction of the learned trial Court, therefore, such question can be raised in the present second appeal even though the same was not raised before the learned first appellate Court. In support of his contention the learned Counsel for the plaintiff has placed reliance on the decisions of the Honble Supreme Court in /.C. Chatterjee and others v. Shri Sri Kishan Tandon and another, AIR 1972 SC 2526, State ofUttar Pradesh and others v. Dr. Anupam Gupta, etc., AIR 1992 SC 932; Rajeswari Amma and another v. Joseph and another, AIR 1995 SC 719; Most. Rev. P.M. A. Metropolitan and others, etc. etc. v. Moran Mar Marthoma and another etc. etc., AIR 1995 SC 2001, and in Municipal Board, Saharanpur v. Imperial Tabacoo of India Ltd. and another etc., AIR 1999 SC 264. 15. In all the cases relied upon by the learned Counsel for the plaintiff, it was held that a pure question of law going to the root of the jurisdiction of the Court could be raised for the first time in appeal and even before the Supreme Court. 16. The ratio relied upon by the learned Counsel for the plaintiff is not applicable to the facts of the present case. 17. 16. The ratio relied upon by the learned Counsel for the plaintiff is not applicable to the facts of the present case. 17. The Honble Supreme Court in Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886, has held that the question of addition of parties under Order 1 Rule 10 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the Court, but of a judicial discretion, which has to be exercised in view of all the facts and circumstances of each particular case. 18. A Division Bench of the Rajasthan High Court Bhajandas v. Nanuram and another, AIR 1954 Rajasthan 17, has held that whether a person is a necessary party in the suit or not depends upon the decision of mixed questions of fact and law which, when not raised and decided either in the trial Court or first appellate Court will not be permitted to be raised in the second appeal for the first time. 19. In Dr. Mahesh Chand Sharma v. Smt. Raj Kumari Sharma and others, AIR 1996 SC 869, among the issues framed in the suit, issue No. 5 pertained to the plea of limitation put forth by the defendants. Such issue was decided in favour of the plaintiff by holding the suit to be within time. The decision on this issue was not contested by the defendants before the Division Bench in appeal. It was expressly recorded by the Division Bench that the said issue was not contested by the parties in the appeal and therefore, the findings of the learned Single Judge holding the suit to be within time were affirmed. On the question of limitation having been sought to be raised before the Honble Supreme Court, it was held that once the plea was not raised before the Division Bench in appeal and such plea having been given up, the same could not be allowed to be raised in appeal before the Supreme Court. 20. On the question of limitation having been sought to be raised before the Honble Supreme Court, it was held that once the plea was not raised before the Division Bench in appeal and such plea having been given up, the same could not be allowed to be raised in appeal before the Supreme Court. 20. In the present case also since the plaintiff failed to assail the order impleading defendant No.2 as a party to the suit in the appeal before the learned District Judge, he would be deemed to have given up the plea and as such cannot be permitted to raise the said plea and assail the correctness of the order impleading defendant No. 2 as a party in the present second appeals. 21. The two courts below have rightly held the suit of the plaintiff for declaration as barred by time. It may be noticed that the plaintiff is assailing the order dated 4.12.1984 of the Assistant Collector 1st Grade and has prayed for the setting aside of the same. Under Article 100, Limitation Act, 1963, a suit to alter or set aside any decision or order of a Civil Court in any proceedings other than a suit or any act or order of an officer of Government in his official capacity has to be filed Within one year from the date of the order. The suit in the present case was filed on 23.11.1990, that is, about six years of the passing of the impugned order. Therefore, on the face of it, the suit for declaration to set aside the order dated 4.12.1984 was barred by time. It was not the case of the plaintiff that the Assistant Collector 1st Grade had no jurisdiction to pass the impugned order. 22. The other question involved in the case as to which of the party is in possession of the land in dispute is purely a question of fact. The findings of the learned Court below on a pure question of fact cannot be interfered with in the present second appeals. 23. No question of law muchless a substantial question of law arises in the present appeals. Resultantly, both the appeals are dismissed. No orders as to costs.