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2012 DIGILAW 735 (HP)

Sohan Lal v. Amin Chand

2012-10-17

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. 1. This Regular Second Appeal is directed against the judgment and decree, dated 27.02.2002, passed by the learned District Judge, Mandi, H.P. in Civil Appeal No. 111 of 1999. 2. Material facts necessary for adjudication of this appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for the sake of convenience), had filed a suit for declaration and permanent prohibitory injunction against the respondent/proforma respondent/defendants (hereinafter referred to as the ‘defendants’ for the sake of convenience). The suit was originally filed against Shri Brij Lal, father of defendant No. 1, now represented by his legal representatives, Shri Amin Chand and Shri Tulsi Ram, who were impleaded as proforma defendants. According to the plaintiff, the land comprised in Khasra Nos. 85, 113, 115 and 120, measuring 0-05-83 hectares, situated in village Luharda was recorded in the ownership and possession of defendant No. 1 in the revenue record. According to the plaintiff, the suit land was purchased by the plaintiff, original defendant No. 1 and proforma defendant by way of oral sale in 1969 from one Krishan Dass, for a consideration of `1600/- jointly and the consideration was paid by all the parties, who were put in possession, but the mutation was wrongly sanctioned in favour of the original defendant No. 1 on 14.07.1969 and the revenue entries were entered solely in the name of defendant wrongly which are liable to be corrected. 3. The suit was contested by the defendant, Amin Chand. According to him, the suit land was purchased by his father, Brij Lal exclusively, who was in possession of the same and no objections were raised with regard to the entries during consolidation also, which took place in the year 1975-76. The defendant was owner-in-possession of the suit land and mutation was rightly attested in the name of his father in 1969. 4. The proforma defendant No. 2 did not contest the suit and was proceeded ex parte. 5. The plaintiff filed the replication and reiterated the stand taken in the plaint. The issues were framed on 18.08.1997. Learned trial Court dismissed the suit on 10.06.1999. The plaintiff preferred an appeal before the learned District Judge, Mandi, H.P. The same was dismissed on 27.02.2002. Hence, this Regular Second Appeal. 6. This Regular Second Appeal was admitted on the following substantial questions of law on 18.06.2002: 1. The issues were framed on 18.08.1997. Learned trial Court dismissed the suit on 10.06.1999. The plaintiff preferred an appeal before the learned District Judge, Mandi, H.P. The same was dismissed on 27.02.2002. Hence, this Regular Second Appeal. 6. This Regular Second Appeal was admitted on the following substantial questions of law on 18.06.2002: 1. Whether in the facts and circumstances of the case the courts below are right in law in allowing the defendant to place on record and lead evidence in support of its defence when he was proceeded ex parte without getting the ex parte order set aside. If not, what is its effect? 2. Whether the learned appellate Court has failed to exercise the jurisdiction by rejecting the application under Order 41 rule 27 by ignoring the well established principles of law? 3. Whether judgment and decree of the court below is vitiated on account of non-consideration of admissible evidence brought on record and also on account of misreading of pleadings and evidence? 7. Mr. B.K. Malhotra, learned counsel for the appellant has strenuously argued that the learned appellate Court has failed to exercise the jurisdiction by rejecting application under Order 41 Rule 27 of the Code of Civil Procedure. He also contended that the contesting defendant was proceeded ex parte, but he has been permitted to lead evidence without getting the ex parte order set aside. He also argued that both the courts below have not properly appreciated the oral as well as documentary evidence. 8. Mr. Neel Kamal Sharma, learned counsel for respondent No. 1 has supported the judgments and decrees passed by both the courts below. 9. I have heard the learned counsel for the parties and gone through the pleadings carefully. 10. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 11. Plaintiff has appeared as PW-1. According to him, the land was purchased by all the three brothers jointly and the possession was also given by vendor Kishan Dass to all the three brothers, who divided the land amongst themselves in 1969 and had been cultivating the same. He also deposed that the mutation was attested in favour of defendant No. 1 only since he was in service and his brother told him that mutation has been attested in favour of all. He also deposed that the mutation was attested in favour of defendant No. 1 only since he was in service and his brother told him that mutation has been attested in favour of all. He also admitted that all the four brothers have been living separately for the last 17/18 years and he had been serving in the revenue department and retired as Naib Tehsildar. He also stated that he used to visit his house once in one and half year and consolidation took place in 1977 and settlement took place in 1969. He admitted that objections were heard during settlement and consolidation and mutations were also attested after due inquiry. 12. PW-2, Ramji Dass has deposed that the plaintiff used to visit his house after one month or two months. He has also stated that the family of the plaintiff was living in the village and consolidation took place after the authorities enquired from the residents of the area. His house was at a distance of one and half Kms. 13. PW-3, Parma Nand has supported the statement of plaintiff regarding the purchase and possession of the suit land. PW-4, Lalman Patwari has proved the copy of rapat rojnamcha, dated 27.05.1973, Ex. PW-4/A. 14. DW-1, Amin Chand, son of the original vendee, has deposed about the purchase of the land and their exclusive possession. DW-2, Rikhi Ram and DW-3, Nika Ram have deposed about the possession of the defendant. 15. According to the revenue record, i.e., Ex.-D1, copy of jamabandi for the year 1994-95, Ex. D-2, copy of Misal Haqiat and Ex. –P1, copy of jamabandi for the year 1989-90, prove that the land was entered in the ownership and possession of Brij Lal, father of defendant No. 1 exclusively. It is apparent from these entries that the land was purchased by Shri Brij Lal on the basis of oral sale from Shri Kishan Dass and mutation was accordingly attested in favour of Brij Lal on 14.06.1969 and the sale consideration was 1600/-. 16. Plaintiff has also put strong reliance on Ex. PW-4/A, copy of rapat, allegedly lodged by Shri Brij Lal, the original defendant No. 1 and the vendee. It is not evident from the rapat that it was attested by any Revenue Officer, Kanungo, Naib Tehsildar or Tehsildar during inspection. 16. Plaintiff has also put strong reliance on Ex. PW-4/A, copy of rapat, allegedly lodged by Shri Brij Lal, the original defendant No. 1 and the vendee. It is not evident from the rapat that it was attested by any Revenue Officer, Kanungo, Naib Tehsildar or Tehsildar during inspection. It also does not refer to the presence of any Lamberdar or other persons in whose presence the rapat was lodged. It is intriguing to note why Shri Brij Lal would lodge the rapat after four years of attestation of mutation in his favour. The plaintiff was working in the revenue department himself. He has retired as Naib Tehsildar. He has been living separately from his brothers. He should have made enquiries regarding the entries made from 1969 to 1995. The consolidation and settlement proceedings also taken place in the area. He has also admitted that the objections were heard during the settlement and consolidation proceedings and thereafter, the mutation was attested after due enquiry. Defendant No. 2 was proceeded ex parte. He has not filed any written statement. The vendee was already dead. The relatives or his legal heirs could not have the knowledge about the oral sale. 17. According to Ex.-P2, the name of the vendor, vendee etc. and the amount of sale consideration were mentioned in the columns and in the order passed by the Revenue Officer, it was clearly mentioned that the affidavit of the vendor has been produced and accordingly the mutation was attested in favour of Brij Lal. Thus, the mutation has been attested on the basis of the affidavit produced by Brij Lal before the Revenue Officer. Thus, the Courts below have correctly appreciated the oral as well as documentary evidence. 18. Now, as far as the application preferred by the plaintiff under Order 41 Rule 27 of the Code of Civil Procedure before the learned 1st Appellate Court is concerned, the plaintiff wanted to lead additional evidence to prove the copy of an affidavit sworn by Shri Brij Lal, the original vendee, in which, he had alleged that he had got the rapat entered on 27.05.1973 in favour of his two other brothers. However, neither in the plaint nor in the statement of the plaintiff, there was anything deposed about the rapat lodged by Shri Brij Lal in favour of the plaintiff or that any affidavit was sworn by the defendant or handed over to him. It was highly belated. The appeal was filed by the plaintiff in the year 1999 and application under Order 41 Rule 27 of the Code of Civil Procedure was filed in 2001. The plaintiff has not given any valid explanation for moving an application under Order 41 Rule 27 of the Code of Civil Procedure belatedly. Thus, the application under Order 41 Rule 27 of the Code of Civil Procedure preferred by the plaintiff has rightly been rejected by the learned 1st Appellate Court. 19. Now, the Court will advert to the last submission of Mr. B.K. Malhotra, learned counsel for the appellant. According to him, the defendant No. 1 was proceeded ex parte and, thus, he could not be permitted to lead evidence. The defendant No. 1 was proceeded ex parte on 02.01.1997 and the service was effected by way of publication, though it had come on the record on 28.02.1996 as per order sheet that the defendant No. 1 was dead. 20. An application under Order 9 Rule 7 of the Code of Civil Procedure was preferred by the defendant. An application under Order 6 Rule 17 of the Code of Civil Procedure was also filed by the defendant for amendment of the application. The second application was allowed on 10.04.1997 and thereafter, the application under Order 9 Rule 7 of the Code of Civil Procedure was also allowed on 24.07.1997. The defendant No. 1 filed the written statement and contested the case. It is, thus, evident that before allowing the application under Order 9 Rule 7 of the Code of Civil Procedure, the application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the application was allowed and thereafter, the application under Order 9 Rule 7 was allowed and the ex parte order was set aside. There is no merit in the contention of Mr. B.K. Malhotra, learned counsel for the appellant that the defendant was proceeded ex parte and he could not be allowed to place on the record and lead evidence. Consequently, there is no substantial question of law involved in this Regular Second Appeal. 21. There is no merit in the contention of Mr. B.K. Malhotra, learned counsel for the appellant that the defendant was proceeded ex parte and he could not be allowed to place on the record and lead evidence. Consequently, there is no substantial question of law involved in this Regular Second Appeal. 21. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.