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2005 DIGILAW 2325 (RAJ)

Jagannath v. Lallulal

2005-08-31

B.K.MEENA, SANJAY DIXIT

body2005
MEENA, MEMBER — The second appeal has been filed under Section 224 of the Rajasthan Tenancy Act, 1955 herein referred as the Act against the decision and decree passed by Shri M.L. Gupta, R.A.A., Jaipur dated 4.1.2000. (2). Briefly the facts of the case are that the plainitff/respondents filed a suit on 23.11.1976 for declaration and ejection on the ground that the land in question was their khatedari land and is entered in the record of rights as such. It was stated by the plaintiff that parcha settlement Svt. 2010 to 2023 was in favour of the plaintiff/respondents. The appellant/defendant was employed for assistance occasionally and sometimes sent for depositing rent. The plaintiff-respodnent got a mutation done in his favour in a clandestine manner on 12.4.1960 which was finally rejected by Revenue Appellate Authority, Jaipur. The plaintiff-respodnents alleged that land of their khatedari was forcibly occupied on 27.2.1960 which was finally rejected by Revenue Appellate Authority. The plaintiff-respondents alleged that land of their khatedari was forcibly occupied on 27.2.73 on on when date the cause of action arose for filing the suit. It was also stated that the father of defendant/appellant Nathulal had instituted a suit for declaration against father of plaintiff/respondent on 15.4.1975, which was dismissed in default on 14.7.76. The learned Trial Court dismissed the suit on 9.12.98 against which an appeal was field by the plaintiff/respodnents. The learned Revenue Appellate Authority upheld the appeal and revsersed the decision the present second appeal has been filed. (3). Learned counsel for the appellants put forth the arguments that when the finding of facts is not based on proper interpretation of the documents the finding of facts could be itnerfered with in second appeal. He cited AIR 1988 SC page 703 and AIR 1988 SC 561 to support this contention along with 2002-2003 DNJ SC 631. The learned counsel for the appellant cited 2000-01 DNJ supplement Rajasthan 382 to argue that if the subordinate Court of first appellate Court fails to take into consideration documentary as well as oral evidence of the plaintiff the second appeal may be allowed. The learned counsel also cited 2000-01 DNJ SC Supplementary 141 to argue that construction of document is a substantial question of law and is included within the scope of second appeal. (4). The learned counsel also cited 2000-01 DNJ SC Supplementary 141 to argue that construction of document is a substantial question of law and is included within the scope of second appeal. (4). Further, the council argued that in the judgment of Revenue Appellate Authority the onus of proof or for proving possession has been shifted by the learned Revenue Appellate Authority to the defendant which is impermissible in law as held in AIR 1990 SC 723 . He further stated that the rejection of mutation could not be read against the fact of his being in possession as the rejection was only on the technical ground of non-compliance of Section 19 of Rajasthan Tenancy Act, 1955. Regarding the fact of admission by the appellant/defendant, regarding the possession having been obtained on the basis of share-cropping (batai) the learned counsel argued that this admission of his has been set at large by the counter admission of the plaintiff that the defendants had never been in possession and according to 1969 RLW 506 and 1974 RLW 208 the Court is duty bound to decide such an admission. The learned counsel also pointed out that in the Revenue Appellate Authority judgment a mention has been made regarding a counter claim but on fact it is proved that no counter claim had been made. In his reply to counsel for the respondent/plaintiff has pointed out the discrepancies in the judgment of the Trial Court. He specifically pointed out that the issue no. 1 was framed as : "Whether the plaintiffs are khatedar". However, the issue has instead been decided as "the defendants have possession since 1960.". (5). With respect to issue No. 4 regarding the suit being within limitation or not the burden was on the defendants and issue has been decided in favour of the plaintiff. As they have not challenged this they are estopped from raising it at this stage. The para No. 4 of my plaint and the plaint filed by Nathulal on 15.4.1975 have similar pleadings, which corroborate each other and prove that the possession was permissible possession. Under such instance the ratio of 2001 (9) SCC 385 would be fully applicable at this stage of this case. For claiming adverse possession there are certain basic principles. The para No. 4 of my plaint and the plaint filed by Nathulal on 15.4.1975 have similar pleadings, which corroborate each other and prove that the possession was permissible possession. Under such instance the ratio of 2001 (9) SCC 385 would be fully applicable at this stage of this case. For claiming adverse possession there are certain basic principles. In 1984 RRD page 529 head note D and 1986 RRD 424 head note B it has been laid down that the person claiming adverse possession has to put forth a definite date. AIR 1935 PC 53 head note (A) has laid down the basic law for adverse possession, which states that a person claiming adverse possession must show that his possession is hostile. This is further corroborated by the evidence of DW 1 in the cross-examination where he denies any knowledge of the date on which the land came into his fathers possession. According to 1977 RRD page 305 and 1989 RRD page 605 the plaintiff has to prove only the khatedari. The rest of the burden in on the defendant to prove has status. In the khasra girdawari also Nathulals name is in the remarks column and does not exist at all in Svt. 2012. the khasra girdawari has not been proved by evidence of patwari or any other revenue official. Under such circumstances reliance cannot be placed on khasra girdawari as held in 1981 page 4871 (sic?), 1982 RRD page 603,1983 RRD page 416 (HC), 2001 RRD page 190. (6). Learned counsel for the respondent also distinguished AIR 1988 SCC page 703 and 2002-2003 DNJ SC 561 and stated that this ruling should not be applicable as there is no fact of misinterpretation of any document on record. The learned counsel for the respondents have also distinguished the ruling 1969 RLW page 507,1974 RLW page 208 by stating that he has not done any admission and as such the ruling are not applicable in the facts and circumstances of the present case. (7). In the rejoinder the learned counsel for the appellants cited 1983 RRD page 12 to support hs contention with regard to the evidentiary value of the khasra girdawari. (8). Heard the learned counsel for both the sides and carefully perused the record. (9). (7). In the rejoinder the learned counsel for the appellants cited 1983 RRD page 12 to support hs contention with regard to the evidentiary value of the khasra girdawari. (8). Heard the learned counsel for both the sides and carefully perused the record. (9). The points for adjudication that have come up before us can be summarized as follows:— (i) whether the admission made in the suit filed by the present appellant-defendant on 15.4.1975 was set at large by another admission to the contrary. (ii) whether a substantial question of law exists on the basis of construction of document. (iii) whether finding of the appellaate Court that possession was not adverse can be interfered with in second appeal. (10). From the plain reading of the plaint of Nathulal filed on 15.4.1975 and admission of having taken the land on batai has clearly been made and this admission is bound to be read by this Court as it was made an annexure exhibit P-8 and was not denied except for a plea in the written statement that this does not operate as res judicata. To that extent there is no doubt that a suit dismissed in default would not operate as res judicata, but this does not mean that the admission made in the previous plaint would not be read. (11). Learned counsel for the appellant-defendant has placed reliance on 1969 RLW 507 and 1974 RLW 204 and has argued that admission against an admission sets the matter at large. However, what he is counting upon as a counter admission is the plea taken by the plaintiff-respondent where they have denied the possession or khatedari of the defendant, but have admitted that Nathulal was being used for assistance and for depositing of rent etc. This in our opinion cannot be used as a counter admission to set the matter at large and the admission initially made would have to be read. (12). Thus the rulings cited in this respect, i.e., 2001 DNJ SC Supp. 141 regarding a construction of document would have to be read in this context. (13). The whole question, therefore, boils down to whether the finding of facts reached by the first appellate Court can be interfered with in the facts and circumstances of the case or not. (12). Thus the rulings cited in this respect, i.e., 2001 DNJ SC Supp. 141 regarding a construction of document would have to be read in this context. (13). The whole question, therefore, boils down to whether the finding of facts reached by the first appellate Court can be interfered with in the facts and circumstances of the case or not. The learned counsel for the appellant has cited AIR 1988 SC page 703, which states that: "High Court is justified in setting aside finding under Section 100 CPC, if the lower Court has decreed the suit on assumption not supported by the evidence and without considering entire evidence." AIR 1988 SC page 1858 has also been cited to canvas the argument that finding recorded by the lower Court without considering evidence could be interfered with by the High Court in second appeal under Section 100 CPC. In the context 2002-2003 DNJ SC 561 and 629 along with the 2001 DNJ Supplementary Raj. 382 have also been cited on the same points i.e. findings of facts based on the misinterpretation of the document can be interfered with in second appeal. (14). However, on a reading of judgment of the first appellate Court and going through the entire record we find that the finding of fact arrived at by the lower appellate court has been done with due diligence. Also the fact that the plaintiff in his cross-examiantion in DW-1 in the Trial Court has not been able to even give a definite date as to when he came into possession. The ruling cited in 1984 RRD page 529, RRD 1986 page 424, would apply and there is therefore no occasion for us to interfere with the finding of fact by the first appellate court regarding the possession being permissive and not adverse. The ratio of the ruling 2001 (9) SCC 385 (Para 5) is totally binding and it would be well worth our while to quote from the Honble Supreme Court decision in Bhoora Magiva vs. Satish Pagariya, i.e. "Permissible possession could not be converted into adverse possession. A party originally getting possession by permission, such as an agreement for sale could not claim to be in adverse possession unless he proved that he had asserted and acquittal adverse title to the property within the knowledge of the true owner in a period of 12 yeas or above." (15). A party originally getting possession by permission, such as an agreement for sale could not claim to be in adverse possession unless he proved that he had asserted and acquittal adverse title to the property within the knowledge of the true owner in a period of 12 yeas or above." (15). In the case under discussion the adverse title obtained through mutation has already been set aside and it is admitted by both the parties. Such being the case the ruling is totally applicable to the present case. Also 1994 (6) SCC 599 Thakur Singh vs. Arvind Kumar has also held that when initially possession is not adverse or is permissible, burden lies on the person claiming adverse possession to establish it with cogent evidence that the possession became adverse. It has further been held in this ruling that "Findings of appellate Court that possession was not adverse cannot normally be-interfered with in second appeal." (16). The discussion regarding khasra girdawaris, therefore, is not germane to the fact and circumstances of the case and the reference to a counter-claim seems to have been made incuriam and is laible to be ignored. In the event the second appeal is dismissed. Parties to bear their own costs. Pronounced in the open Court.