Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 646 (HP)

Raj Kumar v. Kanta Devi

2012-09-27

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J. This appeal has been preferred by the defendants, appellants herein, against the judgment of the learned appellate Court dismissing the counter claim preferred by them. 2. The learned trial Court decreed the suit of the plaintiffs, respondents herein, granting decree for declaration that they were co-owners in joint possession of the land with the defendants in Khata No.197, Khatauni No.368, Khasra No.422 to the extent of half share and were entitled to remain so in future also. The order of the Financial Commissioner dated 16.11.1988 regarding the suit land being exclusively in the ownership of the defendants-appellants was set aside and a permanent prohibitory injunction and in the alternative relief for possession of the suit land was dismissed. The counter claim preferred by the defendants for declaration to the effect that the land comprised in Khasra Nos.393 and 421 alongwith part of the land in Khasra No.390 is exclusively owned by them and the revenue entries to the contrary are illegal and are liable to be set aside was dismissed. Both the plaintiffs and defendants appealed. The learned appellate Court dismissed the appeal(s). 3. The learned trial Court on the settled issues, which were 13 in numbers, held that:- “28. As per my findings on the foregoing issues, the suit of the plaintiffs for the grant of decree of declaration to the effect that they are co-owners in joint possession of the land comprising in Khata No.197, Khatauni No.368, Khasra No.422, to the extent of ½ share with the defendants and are entitled to remain so in future, and further that the order of Financial Commissioner dated 16.11.1988 ordering the recording the suit land in the ownership of the defendants, is wrong and is liable to be set aside, with consequential relief of permanent prohibitory injunction and in the alternative for possession, of the suit land, is dismissed. The counter-claim of the defendants, which they have filed against the plaintiffs for the grant of decree of declaration to the effect that the defendants are the owners in possession of the entire land comprising in Khasra Nos.393, 421 and part of Khasra No.390, with consequential relief of permanent prohibitory injunction, is also dismissed. There is no order as to costs. Decree-sheet be prepared accordingly. File after due completion be consigned to record- room.” 4. There is no order as to costs. Decree-sheet be prepared accordingly. File after due completion be consigned to record- room.” 4. The learned appellate Court noticed that the plaintiffs had sought a declaration and decree for permanent mandatory injunction claiming that they alongwith the defendants are the joint owners in possession having half share each in the suit land as detailed in the plaint. A declaration was also sought that the order passed by the Financial Commissioner dated 16.11.1988 in Revision petition No.301 of 1987, titled: Sant Kumar and Others vs. Parkash Chand and Others was illegal and not binding on the interest of the plaintiffs. The defendants had preferred a counter claim claiming that land comprised in Khasra No.390 is in their exclusive ownership and possession and the revenue entries to the contrary are illegal and therefore required to be quashed and set aside. Consequential relief of permanent prohibitory injunction was also prayed for. 5. The learned appellate Court, on the evidence on record, dismissed the appeal of the plaintiffs. The order of the Financial Commissioner was not interfered with. On the counter claim, the court holds:- “23. So far as the Counter claim of the defendants is concerned, the Counter Claim has not been supported with any evidence on the file. Only DW1 has deposed in support of the counter Claim, but no other evidence in that respect has been led. The order passed by the Financial Commissioner having not been disputed by the defendants and it having become final. It has rightly been held by the learned trial court that the parties can not claim the better thing and rejected the unsuitable part of the order. The party would have to accept the whole order or reject it as whole. As per the detailed inquiry conducted by the revenue agency it having been clear that the land comprised in Khasra Nos.393 and 421 had been in the use of the parties to the suit. Therefore, it is not open to the defendants to contest that the plaintiffs had not been using the land comprising Khasra Nos.393 and 421 for common purpose. Accordingly, the counter claim of the defendants with regard to land comprised in Khasra No.393 and 421 and part of Khasra No.390 is not maintainable. Therefore, it is not open to the defendants to contest that the plaintiffs had not been using the land comprising Khasra Nos.393 and 421 for common purpose. Accordingly, the counter claim of the defendants with regard to land comprised in Khasra No.393 and 421 and part of Khasra No.390 is not maintainable. I have perused the judgment passed by the learned trial court as well as the evidence on the file, it is made out that the defendants want to accept a part of the order passed by the Financial Commissioner which is in their favour and do not want to accept the part of the order which has gone against them, but this would not be the discretion of the defendants to accept or reject any particular part or the order having not been challenged by the defendants anywhere before any competent authority. In my opinion the learned trial court has rightly held that the counter claim was not maintainable.” 6. The defendants are now in second appeal challenging the findings of the learned appellate Court. It is urged on behalf of the appellants that two questions arise for determination in this appeal, namely:- “1. Whether the view taken by the courts below that since the order of the Financial Commissioner, H.P. Ext.P-9 was partially in favour of the appellants, therefore, the same could not be challenged by the appellants is not sustainable in the eyes of law? 2. Whether the findings of the courts below are totally perverse to the oral as well as documentary evidence on record and the courts below have miserly failed to give findings in accordance with the evidence on record especially the courts below have failed to take into consideration the documents exhibited by the defendants? 7. Adverting to second question, I find no perversity. The question seeks to agitate a complete re-appreciation of evidence. In second appeal though this Court can look into the evidence to ascertain any perversity, but at the same time it cannot be converted into a first appellate court to re-appreciate the entire evidence merely because it can have a different conclusion on facts. On the other aspect, i.e.Ex.P-9, all that I need say is that the question has thoroughly been discussed by the two Courts below. The order Ex.P-9 has been held to have been passed in accordance with law. On the other aspect, i.e.Ex.P-9, all that I need say is that the question has thoroughly been discussed by the two Courts below. The order Ex.P-9 has been held to have been passed in accordance with law. Moreover, when the appellate court notices that no evidence has been placed on the record of the case, I find that no question of law muchless substantial question of law arises for determination. Appeal dismissed. All miscellaneous applications are disposed of.