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2012 DIGILAW 400 (HP)

Radhey Shyam v. State Of H. P.

2012-07-23

V.K.AHUJA

body2012
JUDGMENT : V.K. Ahuja, J. 1. This is a regular second appeal filed by the appellant/plaintiff u/s 100 C.P.C against the judgment and decree, 11.7.2003, passed by the learned Additional District Judge Sirmour at Nahan, vide which he allowed the appeal filed by the respondent/State and set-aside the judgment and decree, dated 4.7.2002, of the learned Senior Sub Judge Sirmour at Nahan, decreeing the suit of the plaintiff for declaration and permanent injunction. Briefly stated, the facts of the case are that the appellant, hereinafter referred to as plaintiff, Whether reporters of Local papers may be allowed to see the judgment Yes. filed a suit for declaration and permanent injunction as against the respondent, hereinafter referred to as the defendant. It was alleged by the plaintiff that the land comprised in khasra No. 4372/3207 measuring 11-1 bighas was purchased by the plaintiff for valuable consideration of Rs. 16,000/- from one Budhi Singh vide registered sale deed dated 29.6.1992 and mutation No.2058 was also attested on 24.12.1992. It was alleged by the plaintiff that he is the owner in exclusive possession of the same. It was also alleged that the predecessor in interest of the plaintiff namely Budhi Singh had executed a lease deed in favour of one S.S. Sethi which was cancelled vide review order dated 15.7.1991 by A.C.,IInd Grade. Defendant-State initiated the proceedings u/s 118(3) of the H.P. Tenancy and Land Reforms Act against the said S.S. Sethi and final order was passed by District Collector on 20.12.1994, whereby the suit land stood vested in the State of H.P. The plaintiff moved a review application before the District Collector which was dismissed on 25.11.2000 on the ground that the review petition was not moved within 90 days of passing of the impugned order. The plaintiff alleged that he had acquired the knowledge about the passing of the order by the District Collector only in November, 1998 and that the said order vesting the suit land in State of H.P was passed without giving an opportunity of hearing to the plaintiff and therefore, since the defendant is interfering in the possession of the plaintiff on the basis of the said order, hence suit for declaration and permanent injunction filed by the plaintiff. 2. Defendant took up various pleas in regard to maintainability, jurisdiction, limitation etc. 2. Defendant took up various pleas in regard to maintainability, jurisdiction, limitation etc. On merits, it was pleaded that the plaintiff in connivance with Budhi Singh and S.S. Sethi and revenue staff purchased the suit land from the said Budhi Singh during the pendency of proceedings u/s 118(3) of the H.P. Tenancy and Land Reforms Act despite the fact that S.S. Sethi was non-Himachali and non-agriculturist and accordingly mutation was reviewed by A.C. IInd Grade and he held that lease agreement was in violation of H.P. Tenancy and Land Reforms Act. It was alleged that the plaintiff purchased the suit land in order to vitiate the proceedings u/s 118 of the H.P. Tenancy of Land Reforms Act pending against S.S. Sethi. It was thus pleaded that the District Collector rightly dismissed the review petition of the plaintiff. 3. On the pleadings of the parties, following issues were settled by the learned trial Court: 1. Whether the order dated 20.12.1994 passed by the ld.District Collector is illegal, null and void, if so its effect? OPP. 2. Whether the plaintiff is entitled to consequent relief of permanent prohibitory injunction, as prayed? OPP 3. Whether the suit in the present form is not maintainable, as alleged? OPD 4. Whether this Court has no jurisdiction to entertain and try the suit under H.P.T.L.R. Act, 1972, as alleged? OPD 5. Whether the suit is bad for want of notice u/s 80 C.P.C. as alleged? OPD 6. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD 7. Whether the suit is hopelessly time barred, as alleged? OPD 8. Whether no enforceable cause of action accrued in favour of the plaintiff to file the present suit, as alleged? OPD 9. Whether the plaintiff is estopped to file the present suit by his acts, conducts and deeds, as alleged? OPD 10. Relief. 4. Parties led their evidence and the learned trial Court vide its impugned judgment decreed the suit of the plaintiff. On appeal, those findings were set-aside and the suit filed by the plaintiff stood dismissed 5. I have heard the learned counsel for both the parties and have gone through the record of the case. The appeal in question has been admitted by this Court on the following substantial questions of law: 1. On appeal, those findings were set-aside and the suit filed by the plaintiff stood dismissed 5. I have heard the learned counsel for both the parties and have gone through the record of the case. The appeal in question has been admitted by this Court on the following substantial questions of law: 1. Has the Collector acted illegally in passing an order u/s 118(3) of the H.P. Tenancy & Land Reforms Act without affording an opportunity of being heard to the persons whose names appeared as owners in possession in the revenue records i.e. relevant jamabandis? 2. Whether the lower appellate Court had wrongly upset the findings of the trial Court that the suit is within limitation without any basis? 6. The first question raised by the learned Assistant Advocate General was that in view of the amendment in the Act effected by Amendment Act 1994, Act No.6 of 1995 w.e.f 4th April 1995, Section 120-A was amended and the jurisdiction of the Civil Court has been specifically barred. It was submitted that since this amendment had already been made on 4th April, 1995 and the suit having been filed on 17.1.2001, this amendment was applicable to the facts of the case and as such, the jurisdiction of the Civil Court was barred. 7. On the above point, learned counsel for the appellant submitted that there was a specific issue in regard to jurisdiction issue No.4 as mentioned above and it was observed by the learned trial Court that this issue has not been pressed and therefore, the defendants are precluded from arguing on this issue in regard to the jurisdiction. 8. The learned counsel for the appellant has submitted that in the grounds of appeal also no substantial question of law in regard to the jurisdiction of the Court has been framed at the time of the admission of the appeal. Once the issue had been decided as against the defendant as having not been pressed, the defendant is therefore, precluded from arguing on this issue. 9. In support of his submission that no argument can be advanced on substantial question of law not framed by the Court, the learned counsel for the appellant had placed reliance upon the decision in Rahul Bhargava Vs. 9. In support of his submission that no argument can be advanced on substantial question of law not framed by the Court, the learned counsel for the appellant had placed reliance upon the decision in Rahul Bhargava Vs. Vinod Kohli and Others, (2008) 1 ShimLC 385 , in which the following observations were made in para 10: Rule 2 of Order 41 C.P.C bars the appellant to urge on any other substantial question of law not framed by the Court except with the permission of the Court given in accordance with Section 100 C.P.C. The leave of the Court is required under the CPC in many situations and some of the provisions where leave of the Court is required are Section 92, Order 2 Rules 2 and 4, Order 7 Rule 18, Order 8 Rules-8-A and 9,Order 37 Rule 3 C.P.C. etc........................................................................................................... The collective reading of Rule 2 of Order 41 and Section 100 C.P.C makes it clear that the appellant is required to seek the leave of the Court for urging on any substantial question of law not framed by the Court and such permission is to be granted for reasons to be recorded. The reasons can be recorded in writing only and therefore, the appellant is required to file an application seeking leave of the Court to urge on additional substantial question of law not earlier framed by the Court. In the present case, the appellant has not filed any application seeking leave to urge on any substantial question of law not framed by the Court. The appellant cannot take by surprise to the opposite side by making oral request at the time of hearing to urge on additional substantial question of law not earlier framed. The respondents have every right to oppose the request of the appellant for hearing on additional substantial question of law and in case despite opposition of the respondents, such leave is granted, then respondents should also get some time to prepare on additional substantial question of law. In this context, oral request of learned Counsel for appellant seeking leave to urge on additional substantial question of law is not in consonance with the spirit of law. Hence, request to urge on additional substantial question of law, as prayed, is declined. 10. In this context, oral request of learned Counsel for appellant seeking leave to urge on additional substantial question of law is not in consonance with the spirit of law. Hence, request to urge on additional substantial question of law, as prayed, is declined. 10. During the Course of arguments, a plea was also raised by the learned counsel for the appellant that it amounts to waiver and once the learned trial Court had observed that the issue is not pressed, the respondent is precluded from challenging the findings in regard to the jurisdiction before this Court. Time was granted to the learned counsel for the appellant to make submissions in this regard and both the parties were heard on the issue. 11. The learned counsel for the appellant had placed reliance upon the decision in State of Punjab Vs. Davinder Pal Singh Bhullar and Others etc., AIR 2012 SC 364 , in which their Lordships had referred to the term 'waiver' and what amounts to waiver and accordingly the following observations were made, which are relevant and are being reproduced below: 23. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. 12. The plea taken by the appellant is that the finding on issue No.4 qua the point of jurisdiction has been stated to be not pressed before the learned trial Court and these findings have not been assailed by the State. On this point, Mr.J.S. Guleria, learned Assistant Advocate General, vehemently argued that the said issue was pressed before the learned trial Court but the learned trial Court erroneously decided the same as not pressed which findings were challenged by the State in appeal before the learned Appellate Court, as is clear from para 3 of the appeal filed before the learned First Appellate Court. It was also submitted that the appeal was allowed by the learned Appellate Court and the judgment of the learned trial Court merged in the judgment of the Appellate Court. It was also submitted that the appeal was allowed by the learned Appellate Court and the judgment of the learned trial Court merged in the judgment of the Appellate Court. Hence the principle of waiver is of no help to the appellant. 13. Mr.J.S. Guleria, learned Assistant Advocate General, in support of his submissions had relied upon the decision in Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas and Another, (2008) 11 SCC 753 The observations made in para 26 are relevant and are being reproduced below: We, however, are not unmindful of the principles of estoppel, waiver and res judicata are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law. Even in such cases, the principle of issue estoppel will have no role to play. 14. The learned Assistant Advocate General had also relied upon the decision of this Court in State of H.P. through Collector Bilaspur versus Anant Ram and others, Latest HLJ 2010 (HP) 1249, in which the question in regard to jurisdiction of the Court also arose and the observations made in that case in paras 18 to 22 are relevant and are being reproduced below: 18. During the course of arguments, the learned Assistant Advocate General for the State had also raised a plea in regard to the jurisdiction, which was also taken before the learned trial Court in the written statement filed by the defendant, but neither any issue was framed nor any findings were given by both the courts below on this point. It was submitted by the learned counsel for the respondents that the appeal was admitted only on one substantial question of law, as mentioned above. It was never admitted on substantial question of law in regard to the jurisdiction and as such the plea of jurisdiction cannot be raised by the appellant at this stage. 19. The learned Assistant Advocate General submitted that this plea could be raised even if it had not been specifically raised at the time of filing of the appeal or the appeal was not admitted on this substantial question of law. 20. My attention has been drawn to the provisions of Section 100 of the CPC in regard to the second appeal, as observed by their Lordships in Dharam Singh Vs. 20. My attention has been drawn to the provisions of Section 100 of the CPC in regard to the second appeal, as observed by their Lordships in Dharam Singh Vs. Karnail Singh and Others, (2008) 9 SCC 759 , Section 100(5) of the CPC reads as follows: (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: The observations made in para 14 are also relevant and are being reproduced below: The plea about the proviso to sub-section (5) of Section 100 instead of supporting the stand of the respondent rather goes against them. The proviso is applicable only when any substantial question of law has already been formulated and it empowers the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law. The expression "on any other substantial question of law" clearly shows that there must be some substantial question of law already formulated and then only another substantial question of law which was not formulated earlier can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question. 21. It follows from the above discussion that once the appeal has already been admitted and substantial question of law has been framed, the arguments can be heard even on another substantial question of law which arises from the arguments advanced by the learned counsel for the parties. The plea in regard to jurisdiction was taken before the learned trial Court and was not agitated before the courts below, but since it is material question involving jurisdiction of the Civil Court, this Court is not precluded from hearing arguments on this substantial question of law. 22. The jurisdiction of the Civil Court is barred u/s 171 of the H.P. Land Revenue Act, 1953 and as such the suit for declaration and injunction could not have been filed before the learned trial Court. 22. The jurisdiction of the Civil Court is barred u/s 171 of the H.P. Land Revenue Act, 1953 and as such the suit for declaration and injunction could not have been filed before the learned trial Court. The only relief to which the plaintiff was entitled was challenging the order passed by the Revenue Officer u/s 163 of the said Act being illegal and void, which was never done by the plaintiff and as such the Civil Court had no jurisdiction to grant the decree in question in favour of the plaintiff without a challenge having been made to the ejectment order, which remains final and has cast a cloud on the rights of the plaintiff to get the decree in question. Therefore, the Civil Court had no jurisdiction in the facts and circumstances of the case. 15. From the above discussion, it is very much clear that when an appeal is filed by the appellant and substantial questions of law are framed, he could also make submissions during the course of arguments on substantial questions of law not formulated at the time of admission of appeal in case they arise from the pleadings of the appellant. The only condition is that other party should not be taken by surprise and in the present case sufficient time was given to the opposite party to make submissions. 16. Here the position is somehow different that the appeal was admitted on some substantial questions of law but no cross objections were filed by the respondent against the findings of learned Appellate Court. Once an appeal is admitted, the other party is not precluded from making submission in regard to the other issues even if no specific cross objections have been filed and only condition is that the other party should be given a due notice. The question pertains to the jurisdiction of the Court and the learned trial Court, by writing simple one line, observed that this issue is not pressed and hence decided the same in favour of the plaintiff and as against the defendant-State. The question pertains to the jurisdiction of the Court and the learned trial Court, by writing simple one line, observed that this issue is not pressed and hence decided the same in favour of the plaintiff and as against the defendant-State. The question of jurisdiction was in between the plaintiff and the State or the defendant and the State and the learned trial Court was required to give its findings as to whether jurisdiction was there or not and in case the issue was not pressed during the course of arguments, a specific statement should have been recorded so as to bind the State and to preclude them from challenging the findings in regard to the jurisdiction. The said procedure was never adopted by the learned trial Court and the question of jurisdiction which was basically a question of law remained undecided and the Court proceeded with the question that this issue was not pressed. Therefore, the learned trial Court assumed the jurisdiction which was not vested in it. 17. During the course of arguments, my attention has been drawn by the learned Assistant Advocate General for the State to the amendment carried out in H.P. Tenancy and Land Reforms Act vide Act No.6 of 1995, vide which, u/s 121-A, the jurisdiction of the Civil Court had been barred. 18. Therefore, it is clear from the above discussion that the jurisdiction of the Civil Court was barred which could not have considered the question and the findings recorded by the learned trial Court and challenged in appeal before the learned Appellate Court cannot be said to be binding upon the State so as to debar them from raising the plea of jurisdiction in this regard. 19. The sum total of the above discussion is that the jurisdiction of the Civil Court was barred and the Civil Court could not have looked into the question as to whether a notice was required to be issued to the plaintiff for which a substantial question of law has been framed, but that question has to be determined by the Revenue Authorities and not by the Civil Court. It was a complete Code under which the plaintiff had the remedy, raise the objection before the Collector and there was due provision for filing an appeal to the Divisional Commissioner and thereafter to the Financial Commissioner under the provisions of the H.P. Tenancy and Land Reforms Act, 1972. Therefore, this question cannot be looked into by this Court whether due opportunity was required to be given to the plaintiff to be heard once the jurisdiction of the Court was barred. Thus, this question is left open to be considered by the Appellate Authorities under the Act and the plaintiff is at liberty to file a petition before the Collector or file an appeal against the Collector's order, if permitted by law in regard to limitation, since the plaintiff was pursuing his remedy before the Civil Court. Therefore, once it is held that the jurisdiction of the Civil Court was not there, no findings could have been recorded by the learned trial Court. No arguments were advanced in as to how the findings of the learned Appellate Court in regard to limitation are incorrect. 20. As such, the appeal filed by the appellant is liable to be dismissed and the same is dismissed accordingly. However, the appellant is at liberty to pursue his remedy before the Authorities under the provisions of the H.P. Tenancy and Land Reforms Act. The appeal stands disposed of accordingly, so as the pending application(s), if any.