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2012 DIGILAW 496 (HP)

Heera Singh v. Changali Devi

2012-09-04

SURINDER SINGH

body2012
JUDGMENT SURINDER SINGH, J (oral). The present Regular Second Appeal was admitted for hearing on the following substantial questions of law:- “1. When the Lower Appellate Court held that the question of title as raised by the plaintiff-appellant in the suit is without jurisdiction of the civil Court, could the suit of the plaintiff-appellant be dismissed by holding that the “Settlement Act” being a special Act overrides the general Act and it was essential for the plaintiff-appellant to examine the officials of the Settlement Department who has changed the entries during the Settlement operation? 2. Whether the Lower Appellate Court has committed grave procedural illegality in failing to consider the certified copies from the revenue record which were perse admissible by wrongly applying the ratio of the judgment of the Hon’ble Supreme Court, in holding that the marking of a document as Exhibit does not dispense with its proof? 3. Whether the Lower Appellate Court has taken an essentially wrong approach in holding that unless such persons who have changed the entries in the revenue records during settlement operation are given opportunity to explain their position by essentially examining them in the civil Court, the documents cannot be read in evidence? 4. Whether the Lower Appellate Court has committed grave error of law in refusing to go into the validity of the partition proceedings, by ignoring the pleadings and real dispute wherein the plaintiff-appellant assailed the jurisdiction of the revenue court to entertain partition proceedings on the basis of wrong entries by observing that HP Land Revenue Act is a Special Act and such order cannot be declared to be illegal by a civil Court, especially when the Lower Appellate Court has held that the civil Court had jurisdiction to entertain the suit? 5. Whether the Lower Appellate Court has exceeded its jurisdiction in making out a new case in favour of the defendanst and deciding the question of alleged rights and liabilities of the co-owners when such question was not in dispute at all?” 2. 5. Whether the Lower Appellate Court has exceeded its jurisdiction in making out a new case in favour of the defendanst and deciding the question of alleged rights and liabilities of the co-owners when such question was not in dispute at all?” 2. Precisely the facts giving rise to the present appeal are that the plaintiff-appellant had filed a suit against the defendants-respondents for seeking declaration to the effect that he alongwith proforma defendants are owners in possessions of Khasra No.477, 1771 and a part of land comprised in Khasra No.1771, which was allotted in partition to the contesting defendants and the order of learned Assistant Collector Ist Grade Rampur to that extent is wrong and illegal. The plaintiff alleged that the land comprised in Khata No.86, Khatauni Nos.136 to 140 total 11 plots measuring 20 bighas 15 biswas, situated in Mauja Mashnoo, Tehsil Rampur, as per Jamabandi for the years 1972-73 was owned and possessed by Smt. Budhi widow of late Shri Sudhu alongwith defendants No.1 to 3 and one Shri Rikhi Ram. Said Smt. Budhi was owner to the extent of one half share and in possession of the land comprised in Khasra Nos.118, 1088/622 min and 1089/622 min measuring 8 bighas 6 biswas, whereas, Rikhi Ram aforesaid was in possession of Khasra Nos. 1428/75 and 1430/76. Remaining land bearing Khasra Nos.1247/75 and 1429/76 was shown in the possession of H.P. P.W.D. 3. On 11.6.1975, Smt. Budhi Devi sold her entire share to Shri Man Sukh for a consideration of `.20,000/- by executing a sale deed and was specifically put in possession of Khasra Nos.118, 1088/622 min and 1089/622 min. After his death, plaintiff and proforma defendants inherited and possessed this land being his legal representatives, which was having an apple orchard and they also planted some more plants over it. The settlement operation was in vogue and new Khasra numbers were allotted to suit Khasra numbers and Khasra Nos.118, 1089/622 min and 1088/622 min which were in possession of the plaintiff and proforma defendants were denoted by Khasra Nos. 477, 1771 and 341 respectively. But the settlement officials had wrongly shown Khasra Nos.1088/622 min as Khasra No.341 which in fact was a part of Khasra No.1160/206, granted in ‘Nautor’ to Rama Nand, uncle of Man Sukh by the then Rulers of ‘Bushehri estate’, situated at a distance of about one kilometre away from old Khasra No.1088/622 min. 477, 1771 and 341 respectively. But the settlement officials had wrongly shown Khasra Nos.1088/622 min as Khasra No.341 which in fact was a part of Khasra No.1160/206, granted in ‘Nautor’ to Rama Nand, uncle of Man Sukh by the then Rulers of ‘Bushehri estate’, situated at a distance of about one kilometre away from old Khasra No.1088/622 min. Plaintiff averred that Man Sukh, Rama Nand and Shyam Sukh constituted a Joint Hindu Family during their lifetime, but separated their shares in a family partition, thus Khasra No.1160/206 was allotted to Shyam Sukh and the proforma defendants, whereas, Khasra No.1160/206 abutting to Khasra No.575 was denoted by Khasra No.338 and 339 during settlement operation. 4. Relying upon the copies of Musabies, the plaintiff’s case has been that the settlement officials committed illegality, thus taking undue advantage of the wrong entries made during settlement operation, the defendants sought partition from the revenue officer and the objections raised by the plaintiff and proforma respondents were not considered and the partition was ordered by allotting Khasra Nos.1771 denoted by 1771/2 measuring 0-27-74 hectares in favour of the defendants. The fact of illegality committed during settlement operation came to the notice of the plaintiff at the time of partition, therefore, filed the suit for the above relief under Section 46 of the H.P. Land Revenue Act read with Section 34 of the Specific Relief Act. 5. The suit was contested by the defendants-respondents No.1 to 3. They raised the preliminary objections in the written statement regarding no cause of action and also questioned the locus-standi and jurisdiction of the Court, whereas on merits, they supported the correctness of the revenue entries and admitted that Man Sukh, father of the plaintiff had purchased one half share of Smt. Budhi, but denied that specific khasra numbers were ever sold or that the vendee was put in possession of the specific khasra numbers. They denied the possession of the plaintiff and the proforma defendants as alleged and also having committed any illegality by the settlement authorities. According to them, the settlement authorities after verifying the facts and making the measurement on the spot rightly assigned the new khasra numbers. Also denied the allotment of ‘Nautor’ to Rama Nand with respect to Khasra No.1160/206 and subsequently family partition, as alleged. Further the contesting defendants supported the order of the Assistant Collector Ist Grade. 6. According to them, the settlement authorities after verifying the facts and making the measurement on the spot rightly assigned the new khasra numbers. Also denied the allotment of ‘Nautor’ to Rama Nand with respect to Khasra No.1160/206 and subsequently family partition, as alleged. Further the contesting defendants supported the order of the Assistant Collector Ist Grade. 6. On the pleading of the parties, the following issues were framed:- “1. Whether the plaintiff and prior to him, his predecessor-in-interest has been in possession of khasra No.118, 1088/622 min and 1089/622 min measuring 8.6 bighas, as alleged? OPP. 2. If issue No.1 is proved in affirmative, whether the revenue entries prepared during the recent settlement are wrong and illegal, as alleged? OPP. 3. Whether Man Sukh, late Sh. Rama Nand and Sh. Shyam Sukh had effected a family partition interse them, as alleged, if so, its effect? OPP. 4. Whether order dated 29.8.2002 passed by AC Ist Grade, Rampur is liable to be declared as null and void, as alleged? OPP. 5. Whether the plaintiff has got no cause of action to file the present suit, as alleged? OPD No.1 to 3. 6. Whether this Court has got no jurisdiction to try this suit, as alleged? OPD No.1 to 3. 7. Relief.” 7. Both the parties led their evidence and based upon it, learned trial Court decided Issues No.1 and 2 in affirmative and issue No.4 partly in favour of the plaintiff and issues No.3 and 4 in negative. Thus, the suit of the plaintiff was partly decreed to the extent that the order dated 29.8.2002 passed by the Assistant Collector Ist Grade is illegal and void whereby it relied upon the revenue record prepared during the settlement operation, whereas Khasra No.339 was shown as part of Khasra No.1088/622 min, which was proved to be in possession of the plaintiff and proforma defendants. 8. Feeling aggrieved by the impugned judgment and decree, the defendants-respondents filed an appeal before the First Appellate Court, who while setting aside the findings on issues No.1, 2, 4 and 7, affirmed the findings on issues No.3, 5 and 6, as such, appeal was partly allowed against which the plaintiff has filed the present Regular Second Appeal under Section 100 of the Code of Civil Procedure. 9. 9. Shri Bhupender Gupta, learned Senior Advocate, duly assisted by Shri Ajeet Jaswal, Advocate brought to my notice the findings of the First Appellate Court recorded in para-16 of its judgment, which reads as under:- “16. Another contention of the learned counsel for the respondent that revenue entries qua Khasra No.341 have been wrongly prepared by the Settlement Authorities and Khasra No.341 be declared as part and parcel of Khasra No.1160/206 instead of part and parcel of Khasra No.1088/622 is rejected being devoid of any force because the plaintiff did not examine Patwari Halqa, Field Kanungo and the Tehsildar Settlement who have prepared the settlement papers in order to prove that Khasra No.341 was part and parcel of Khasra No.1160/206 and was not part and parcel of Khasra No.1088/622. No reason has been assigned by the plaintiff that why he did not examine the officials of Settlement Authorities in order to prove his contention and official of Settlement Authorities have not been produced in the Court for the purpose of cross-examination. Even it is well settled law that mistake committed by the Settlement Authorities can be challenged before the Settlement Authorities strictly as per provision mentioned in Settlement Act. Settlement Act is special Act and it is well settled law that when remedy has been provided under the special Act, then special Act prevails over the general Act. Alternative remedy is available to the respondent to approach the Settlement Authorities under the Settlement Act.” It is also argued that the learned First Appellate Court has misunderstood and misapplied Section 35 of the Indian Evidence Act and committed a grave error of law by holding that the revenue entries recorded wrongly could not be challenged without examining the revenue officials thus went astray from the real dispute between the parties. It is also argued that what the learned First Appellate Court wanted to convey by referring to the Settlement Act is not understood nor there is any such Act in force. It is submitted that the settlement proceedings are conducted as per provision of section 33 of H.P. Land Revenue Act, the procedure whereof is provided in the Settlement Manual. It is further argued that the learned First Appellate Court ought to have referred to the oral/ documentary evidence adduced before the learned trial Court, but it was given a fly over. It is further argued that the learned First Appellate Court ought to have referred to the oral/ documentary evidence adduced before the learned trial Court, but it was given a fly over. Therefore, the case deserves to be remanded back for giving a finding based upon the evidence adduced qua the points raised in appeal. 10. In fact, the learned First Appellate Court in its judgment had precisely referred to the affidavit evidence and quoted the provision of Section 35 of the Indian Evidence Act, then observed that non-examination of Halqa Patwari, Field Kanungo, Tehsildar and officials of settlement department who had prepared the Jamabandies Exts.PA, PB and revenue papers during settlement were not examined by the plaintiff to prove his case, surprisingly for non-examination of Assistant Collector Ist Grade, who passed the order of partition was adversely commented upon. But I find that there is no finding of the fact or its examination having been done in appeal by the leaned District Judge, whether the oral as well as documentary evidence already adduced on record did show that the contention of the plaintiff was correct or not. At the one end the learned District Judge held that the Civil Court has the jurisdiction, but simultaneously it also held the remedy provided to correct the entries made by the settlement staff was only to approach them. 11. The First Appellate Court is a last fact finding Court and it has to discuss and reappraise the oral as well as documentary evidence to come to its rightful conclusion, whereas the impugned judgment is itself full of contradictions and replete to which even the learned counsel for the respondents finds it difficult to defend and has no objection to remand the case. 12. Therefore, in view of the above situation, the only course, open to this Court is to set-aside the impugned judgment and decree passed by the learned First Appellant Court and the case is remanded back for its fresh decision to the learned District Judge after affording opportunity of hearing to the parties. Ordered accordingly. 13. The parties are hereby directed to appear before the learned District Judge on 6.11.2012 and finally disposed of the appeal on the basis of the evidence on record qua the contentions raised in appeal, before 31st December, 2012. 14. The Registry is directed to return the record of the Courts below forthwith. 15. Ordered accordingly. 13. The parties are hereby directed to appear before the learned District Judge on 6.11.2012 and finally disposed of the appeal on the basis of the evidence on record qua the contentions raised in appeal, before 31st December, 2012. 14. The Registry is directed to return the record of the Courts below forthwith. 15. No other point urgent before me. 16. The appeal stands disposed of. Parties are left to before their own costs.