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2012 DIGILAW 448 (HP)

Subhash Kaushal v. Surinder Singh

2012-08-24

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J This appeal has been preferred by the plaintiffs against the judgment and decree of the learned District Judge reversing the judgment and decree of the learned trial Court, decreeing the suit of the plaintiffs for declaration to the effect that they are in possession of land measuring 57 Kanals 15 Marlas as detailed in the suit. 2. The plaintiffs instituted the suit, out of which this appeal arises, on the pleading that they are the owners in possession of the suit land and the defendants being sons and widow of late Chaudhary have no right, title or interest in the land. They claimed ownership and possession on the basis of tenancy of their predecessors-in-interest. The defendants denied this claim. It was pleaded that the land in suit was under the tenancy of Nandu, Roshan, Ram Singh and Smt. Duru widow of Gajjoo at the time when it was purchased by Chaudhary. His father Pohdu and Gajjoo were real brothers. Bakshi and others were going to sell their land to Punu Rajput of Marroh on which Nandu, Roshan and Ram Singh who were the tenants approached Chaudhary who was their cousin brother requesting him to purchase the land from Bakshi etc on the apprehension that in case it is sold to Punnu, or some stranger, they would face eviction. One of the conditions imposed for the sale was that Nandu, Roshan, Ram Singh and Smt. Duru tenants, at will, will relinquish their tenancy and hand over the possession of the land to the extent of 3/4th share so purchased to Chaudhary. This formed the basis of transaction and Chaudhary purchased the land and at that time, Nandu and others relinquished their tenancy and handed over the physical possession of land measuring 73 Kanals 16 Marlas situated in different places. However, possession of whole field numbers 2888/1 and 2886 was handed over and out of field No. 2880 land measuring about 52 Kanals comprised in four plots was also given by Nandu etc. tenants. One plot of field No. 2880 was occupied by Chaudhary measured about 30 Kanals in which defendants have constructed five pucca houses and one cowshed worth Rs. 3 lacs. tenants. One plot of field No. 2880 was occupied by Chaudhary measured about 30 Kanals in which defendants have constructed five pucca houses and one cowshed worth Rs. 3 lacs. At a later point of time, on 4.1.1966 Roshan Lal and Ram Singh sons of Gajjoo purchased 3/16 shares of the suit land measuring 18 Kanals 9 Marlas from Basanta son of Gobinda and Bairagi son of Lal for Rs. 800/- vide registered sale deed of the same date. They denied the possession and ownership of the plaintiffs. The plaintiff claimed that they became owners by purchase and they ceased to be tenants in the same khata. 3. On the pleadings of parties, five issues were settled as also issue Nos. 4, 4-A, 4-B, 4-C and 4-D. Issue No. 4-D was with respect to the jurisdiction of the Court to try the suit. The learned trial Court, on the pleadings and evidence, held that the proper procedure for change of entries in the revenue record has not been followed and in this event, it could not be said that it was the revenue authorities who have the exclusive jurisdiction to try the suit. 4. Issue Nos. 3 and 4 were vital to the decision of the entire suit. These issues involved the adjudication of two points; (a) whether late Shri Chaudhary was wrongly entered in the jamabandi for the year 1954-55 as owner in possession and (b) whether the plaintiffs continued as tenants and are still in possession of the suit land and never abandoned their possession. These issues were taken up together for decision by the learned trial Court. Referrring to the oral and documentary evidence on record, the learned trial Court takes notice of Ext.P-1 which is a registered sale deed executed on 4.2.1966 whereby Chaudhary had sold land to the extent of 16/98 shares measuring 16 Kanals from Khata No. 1965 recorded in his ownership in the jamabandi for the year 1962-63. This sale was effected to Nandu, Roshan Lal and Ram Singh plaintiff Nos. 1 and 2 in the suit, for a consideration of Rs. 700/-. The sale deed recites that the purchasers are already owners in possession of the land. This sale was effected to Nandu, Roshan Lal and Ram Singh plaintiff Nos. 1 and 2 in the suit, for a consideration of Rs. 700/-. The sale deed recites that the purchasers are already owners in possession of the land. Ext.P-2 is a copy of registered sale deed dated 4.2.1966 whereby Basanta sold 3/16 share of his land measuring 18 Kanals 9 Marlas in Khata No. 65 according to jamabandi for the year 196263 to Roshan Lal and Ram Singh, plaintiffs for consideration of Rs. 800/-. This sale deed also recites that the purchasers (plaintiffs) are owners in possession of this land. 5. Adverting to the revenue record Ext.P3 jamabandi for the year 1922-23 land measuring 76 Kanals 16 Marlas in Khasra No. 2880 is recorded in possession of Gajjoo, who was predecessor-in-interest of the plaintiffs. He has been recorded as non-occupancy tenant under different owners. According to jamabandi Ext.P-4 for the year 1926-27 land measuring 79 Kanals 15 Marlas of Khasra No. 2880 and 2888/1 is shown in possession of Gajjoo. This entry is repeated in Ext.P-5 jamabandi for the year 1930-31, Ext.P6 jamabandi for the year 1934-35, Ext.P7 jamabandi 1938-39, Ext.P8 jamabandi for the year 194243, Ext.P-9 for the year 1946-47 and Ext.P10 for the year 1950-51. All these jamabandis show Nandu, Roshan and Ram Singh astenants at will to the extent of ½ share and Smt. Surju widow of Gajjoo to the extent of ½ share also as tenant at will qua the land comprised in Khasra Nos. 2880, 2888/1 and 2886 measuring 98 Kanals 8 Marlas. It is jamabandi for the year 1954-55 Ext.P12 in which entries have been changed and Chaudhary has been entered as owner in cultivation and possession of the suit land to the extent of 3/4th share and this is where the dispute starts. 6. The defendants relied upon Ext.D4 jamabandis 195051, Ext.D5 1954-55, Ext.D6 1962-63, Ext.D7 1967-68, Ext.D8 1972-73, Ext.D9 1983-84 and Ext.D10 copy of Khasra Girdawari from 1951 till 1955 besides Ext.D1 being the copy of proceedings in the register pertaining to consolidation, Ext.D2 copy of field book and Ext.D3 copy of tatima. On the oral evidence, the parties of course support their respective stands in the suit/written statement. 7. On the oral evidence, the parties of course support their respective stands in the suit/written statement. 7. On this evidence, the learned trial Court holds that it has been conclusively established on record that possession of the suit land was never relinquished by the plaintiffs in favour of Chaudhary, predecessor-in-interest of the defendants. The learned trial Court takes into consideration documents Ext.P3 to Ext.P11 jamabandies from the year 1922-23 till 1950-51 showing that Gajjoo predecessor-in-interest of the plaintiffs has been in possession of the suit land as non-occupancy tenant. The learned Court also holds that Ext.P19 and Ext.P20 show that Munshi, Bakshi and Hakmi were having ¾ share to the extent of 73 Kanals 16 Marlas out of the entire suit land measuring 98 Kanals 8 Marlas and by virtue of this sale, Chaudhary stepped into the shoes of the owner. It is Ext.P12 copy of jamabandi for the year 1954-55 that entries have been changed showing Chaudhary to be the owner in possession of the land. Ext.P1 and Ext.P2 i.e. copies of sale deeds of the purchase of land by the plaintiffs from Chaudhary and Basanta recite that the plaintiffs are already in possession of the land as tenants. These recitals have been construed as admissions made by the parties. The learned Court then considers Ext.P19 which is the copy of Rojnamcha Vakayati that the possession is that of the tenants. The Court holds that thereafter, in 1954-55 the entries have been changed but no material has been brought on record to justify such change. 8. On this very aspect, I advert to the judgment of the learned District Judge. At the outset, I may observe that the learned Judge has been in breach of the statutory mandate of Section 96 of the Code of Civil Procedure (in short “CPC”) requiring him to be analytical on the submissions made and evidence led before him being the first Appellate Court. It is by now well settled that in the first appeal either before the High Court or the District Court all questions on facts as well as on law should be dealt with. (See: United India Insurance Co. Ltd. vs. Kanwal Nain Sachdeva and others, (1999)9 SCC 193 , State of Rajasthan vs. Harphool Singh (dead) through his LRs. It is by now well settled that in the first appeal either before the High Court or the District Court all questions on facts as well as on law should be dealt with. (See: United India Insurance Co. Ltd. vs. Kanwal Nain Sachdeva and others, (1999)9 SCC 193 , State of Rajasthan vs. Harphool Singh (dead) through his LRs. (2000)5 SCC 652 , Madhukar and others vs. Sangram and others (2001)4 SCC 756 , H.K.N. Swami vs. Irshad Basith (dead) by Lrs. (2005)10 SCC 243 Rama Pulp & Papers Ltd. vs. Maruti N. Dhotre (2005)12 SCC 186) The learned District Judge notes the evidence and comes to the conclusion that presumption attaches to the later entries in the revenue record as the entry changing possession in the year 1954-55 was never challenged by the plaintiffs it attained finality. Then adverting to the law, the learned Court then concludes that the evidence on the point is clear that (a) when Chaudhary purchased the land from Bakshi the previous owner under whom the plaintiffs were recorded as tenants, they surrendered their tenancy rights in his favour at the time of purchase of land and that is why Chaudhary has been recorded as owner; (b) from 1954-55 till the suit was instituted in the year 1986 no challenge was made to the correction of entries and both the parties were aware of the factional situation. If they have been wrongly dispossessed, then it was open to them to apply to the ACO for restoration of the entries as also their possession. One important factor according to the learned District Judge was that one of the plaintiffs Roshan Lal, who appeared as a witness, stated that tenancy rights were surrendered in favour of Chaudhary Ram at the time of purchase in 1954 and since then the defendants are cultivating the suit land as owners in possession. The Court then proceeds that Ext.P1 and Ext.P2, sale deeds only contain one line that the purchasers are in possession of the property and the plaintiffs cannot take any advantage of this stray recital. The learned Court then relies upon Ext.P10 which is the rapat roznamcha that possession of the suit land after purchase was handed over to Chaudhary Ram which was confirmed by the ACO who had also visited the spot after application Ext.PW6/A had been filed. The suit of the plaintiffs was accordingly dismissed. 9. The learned Court then relies upon Ext.P10 which is the rapat roznamcha that possession of the suit land after purchase was handed over to Chaudhary Ram which was confirmed by the ACO who had also visited the spot after application Ext.PW6/A had been filed. The suit of the plaintiffs was accordingly dismissed. 9. The plaintiffs are now in appeal which is admitted for adjudication on substantial questions of law No. 1, 2 and 3 namely: 1. Whether the findings of the learned District Judge are based on inadmissible evidence i.e. Exhibit AW-1, which was neither proved in accordance with law nor was admissible in evidence to come to the conclusion that the rights of tenancy were surrendered in favour of the defendants-respondents? 2. Whether the rights of tenancy can be held to be surrendered without any document duly executed and registered as envisaged under the provisions of Transfer of Property Act and Registration Act? 3. Whether the learned District Judge has wrongly assumed the onus to prove the negative effect on the plaintiff-appellants regarding not surrendering of tenancy rights? Was not it incumbent for the defendants-respondents to prove such fact when the factum of tenancy was duly established on the record by long standing entries? The learned trial Court on the crucial issue as to whether the entry in favour of Chaudhary was wrong held in favour of the plaintiffs Shri Roshan Lal and others and granted decree of permanent prohibitory injunction in favour of the plaintiffs and against the defendants declaring them to be owners in possession of the suit land and also holding that jamabandies showing the entries to the contrary are not in accordance with law. 10. The defendants appealed. The learned District Judge holds on re-appreciation of evidence that when Chaudhary Ram purchased the land from Bakshi who was the previous owner under whom the plaintiffs were recorded as tenants, they surrendered their tenancy in his favour and in these circumstances, Chaudhary after purchase came in possession of the suit land and cultivated the suit land as such. The second ground for setting aside the judgment was that from 1954-55 till the filing of the suit, the plaintiffs did not take any steps to challenge the revenue entries. The learned Court held that if they were wrongly dispossessed, there was a separate remedy for them to move Court of competent jurisdiction to recover possession. The second ground for setting aside the judgment was that from 1954-55 till the filing of the suit, the plaintiffs did not take any steps to challenge the revenue entries. The learned Court held that if they were wrongly dispossessed, there was a separate remedy for them to move Court of competent jurisdiction to recover possession. The plaintiffs remained silent for decades. In other words, the learned Court invoked the principle of estoppel without saying as much. The learned Court presumed that they have abandoned their tenancy rights as such. The third ground for setting aside the judgment was that Roshan Lal one of the plaintiffs did not support their case. Adverting to Ext.P-1 the learned Court holds that it is only one line in the deed which supports the case of the plaintiffs. 11. I have given my anxious consideration to the findings of the learned Courts below. I am anguished by the fact that the case which originates in 1986 has been decreed in 1991, appeal, filed in 1991 and then disposed of in 2000 and then again comes up before me for decision in 2012, has not been decided on merits. What I observe is that the judgment of the learned District Judge is bereft of discussion and analysis of the submissions made before him and more importantly as to why the revenue entries have been changed abruptly. I am making this observation keeping in view the fact that it is now well settled law that it is the duty of the appellate Court to deal with each and every fact on record and the grounds as urged before it. This Court in second appeal is only to examine questions of law based on established facts. The evidence in this case whether documentary as also oral is voluminous which should not deter this Court in entering into a detailed analysis but at the same time this Court cannot assume the role and jurisdiction of the first Appellate Court. It is now well settled that in first appeal, it is the duty of the appellate Court to go in detail on both law as also the facts as urged before it. The law on point is well settled in United India Insurance Co. Ltd. vs. Kanwal Nain Sachdeva and others (1999) 9 SCC 193 .The Court holds: “3. It is now well settled that in first appeal, it is the duty of the appellate Court to go in detail on both law as also the facts as urged before it. The law on point is well settled in United India Insurance Co. Ltd. vs. Kanwal Nain Sachdeva and others (1999) 9 SCC 193 .The Court holds: “3. The High Court dismissed the appeal by a cryptic order stating that no case had been made out for interfering in the well-reasoned award of the Motor Accident Claims Tribunal. In our opinion, the High Court ought to have discussed the merits of the contentions raised by the Insurance Company especially when it was dealing with the first appeal against the order of the Tribunal. 4. We accordingly allow this appeal, set aside the impugned judgment of the High Court and restore FAO No. 1646 of 1998 to the file of the High Court.” (atp.193) 12. This principle has been re-affirmed by the Supreme Court in State of Rajasthan vs. Harphool Singh (dead) through his LRs (2000)5 SCC 652 holding “5. Aggrieved, the State pursued the matter in appeal before the first appellate court but we find on a close scrutiny of the judgment that there was no due or proper application of mind or any critical analysis or objective consideration of the matter made, despite the same being the first appellate court. On the other hand, by merely reproducing the findings of the nature adverted to by us, a mechanical affirmation seems to have been made of them without any reference to the principles of law or the criteria to be satisfied before the claim of the plaintiff of perfection of title by adverse possession could be sustained, involving correspondingly destruction of title of the State in respect of a public property. The first appellate court further chose to reject the appeal on the ground that the same has not been presented within time even without properly noticing the details as to when the Court closed for summer vacation and when the same was reopened, on some strange method of reasoning. 6. The first appellate court further chose to reject the appeal on the ground that the same has not been presented within time even without properly noticing the details as to when the Court closed for summer vacation and when the same was reopened, on some strange method of reasoning. 6. The High Court, apparently obsessed by the limitations drawn on the exercise of second appellate jurisdiction, unmindful even of the glaring inconsistencies and contradictions and serious nature of the issues raised involving public property, has chosen to summarily reject the appeal solely for the reason that both the courts below have found the plaintiff to be the owner of the property and if that be the position, Section 22 of the Rajasthan Colonisation Act, 1954, which provided for summary eviction of those in illegal occupation of public property will have no application and that the declaration granted by the courts had the effect of setting aside the order by the ADM impliedly. Hence this appeal by the State” (at pp.657-658) In Madhukar and others vs. Sangram and others (2001)4 SCC 756 the Supreme Court holds: “6. In Santosh Hazari v. Purushottam Tiwari (2001)3 SCC 179 this Court opined: (SCC pp. 188-89, para 15) “The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court….While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.” 7. The salutary principles referred to above in Santosh Hazari case have been respected in their breach. (at p. 758) In H.K.N. Swami vs. Irshad Basith (dead) by LRs. (2005)10 SCC 243 it is held: “3. The first appeal has to be decided on facts as well as on law. The salutary principles referred to above in Santosh Hazari case have been respected in their breach. (at p. 758) In H.K.N. Swami vs. Irshad Basith (dead) by LRs. (2005)10 SCC 243 it is held: “3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. The order of the High Court is cryptic and the same is without assigning any reason. 4. For the aforesaid reasons, we accept this appeal, set aside the judgment of the High Court and remit the matter back to the High Court to decide it afresh keeping in view the observations made by this court in Madhukar v. Sangram (2001)4 SCC 756 while dealing with the first appeal. 5. The Registry is directed to remit the record to the High Court forthwith. Since this first appeal pertains to the year 1990, we would request the High Court to dispose of the appeal as expeditiously as possible.” (at p.244) In Rama Pulp & Papers Ltd. vs. Maruti N.Dhotre (2005) 12 SCC 186 the Supreme Court held: “3. The High Court by the impugned judgment has dismissed the first appeal with out properly considering the evidence on record or for that matter even the arguments and the grounds raised in support of the appeal. We do not think that the High Court could have done this without calling for the records and considering the evidence by itself. Being the last court of appeal on facts it is the duty of the Court to go into all the questions raised in the appeal and also the challenge to the evidence led in the case. We do not think that the High Court could have done this without calling for the records and considering the evidence by itself. Being the last court of appeal on facts it is the duty of the Court to go into all the questions raised in the appeal and also the challenge to the evidence led in the case. This having not been done, this judgment cannot be sustained.” (at p. 186) The learned Court should pay due attention while dealing with the appeal to the basic principle of Section 3 of the Evidence Act which deals with the legal concept of proved, not proved and disproved. The long established principles was affirmed in RVE Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and another, (2003)8 SCC 752 holding: “28. Whether a civil or a criminal case, the anvil for testing of “proved”, “disproved” and “not proved”, as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be “proved” when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. “The probative effects of evidence in civil and criminal cases are not, however, always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. Best says: ‘There is a strong and marked different as to the effect of evidence in civil and criminal proceedings. Best says: ‘There is a strong and marked different as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to be burden of proof, is a sufficient basis of decision: but in the latter, especially when the offence charged amounts to treason or felony a much higher degree of assurance is required.’ (Best $ 95) While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt.” (See Sarkar on Evidence, 15th Edn., pp 580-59) In the words of Denning, L.J. (Bater v. Bater (1950)2 All ER 458 at P.459 B-C): It is true that by our law there is higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability. Agreeing with this statement of Law, Hodson, L.J. said: “Just as in civil cases the balance of probability may be more readily titled in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.” (Hornal v. Neuberger Products Ltd. (1956)3 All ER 970 at p. 977 D).’’’’ (at pp.767) Having said this, I find that the well reasoned judgment of the learned trial Court has been set aside by the learned Appellate Court without due attention to the reasoning and the grounds of challenge before it. I also find from the grounds of appeal that a number of grounds which have been raised have not been dealt with by the learned Appellate Court at all. I need not go into all the grounds as enumerated therein as it would prejudice the case of the parties. 13. In these circumstances, I direct that case be remanded to the learned Appellate Court and the appeal be decided afresh in accordance with law on the grounds as urged before it. The learned District Judge shall re-admit the appeal on its record and re-hear the case and dispose it of not later than 31st December, 2012. No unnecessary adjournments shall be granted to the parties. The learned District Judge shall re-admit the appeal on its record and re-hear the case and dispose it of not later than 31st December, 2012. No unnecessary adjournments shall be granted to the parties. The learned Court will decide the appeal keeping in view the principles as stated above. 14. Parties to appear before the learned District Judge on 27th August, 2012. Record of the learned Court below be sent back immediately. No order as to costs.