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Himachal Pradesh High Court · body

2013 DIGILAW 618 (HP)

State of H. P. v. Shyam Chander Pal

2013-06-28

DEV DARSHAN SUD

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JUDGMENT Dev Darshan Sud, J.(oral) This appeal has been preferred by the State against the judgment in the suit preferred by the plaintiff claiming the suit property on the basis of inheritance from late Shri Bir Pal Singh. In the suit, the plaintiff had set up a will Ext.P3 by virtue of which, the part of the estate of Smt. Sarat Kumari, mother of the plaintiff, also devolved upon him. The learned trial court on the evidence partly decreed the suit granting 1/4th share to the plaintiff while rejecting his claim on the basis of will, which was held to be executed under suspicious circumstances. The plaintiff approached the learned trial Court on the pleadings that the suit property comprised in Khasra No. 327, 332 and 330 measuring 19 biswas and Khasra No. 335 Khata Khatauni No. 149/244 and the house standing thereon situated in mauja Kaithu, Tehsil and District Shimla was in the ownership and possession of Shri Bir Pal Singh, father of the plaintiff. After his death, mutation of inheritance of this property was attested in favour of the plaintiff, proforma defendant and Smt. Sarat Kumari Devi wife of the deceased and daughter of the deceased. The plaintiff pleaded that initially he had 1/4th share in the property of deceased Shri Bir Pal Singh. Smt. Sarat Kumari, mother of the plaintiff died before the institution of the suit and had executed a will of her share in favour of the plaintiff who claimed 1/2 share of the suit property. The plaintiff states that he remained out of Shimla most of the time and in his absence the State of H.P. had unauthorisedly occupied the suit premises. 2. The State resisted the suit pleading that the suit is barred by limitation, estoppel, and valuation of the suit for the purpose of court fee and jurisdiction is incorrect. On merits, it was denied that the suit property was in unauthorized possession of the State of H.P. on the ground that in the year 1950 Bhaji Estate merged in the State of H.P. and the property including the suit property has vested in the State Government. This property was later on utilized by the State by allotment to its employees as residential quarters. 3. This property was later on utilized by the State by allotment to its employees as residential quarters. 3. Defendant No. 2 also filed written statement admitting that initially the suit property was owned and possessed by Shri Bir Pal Singh and after his death, his sons i.e. the plaintiff and proforma defendant as well as his (Bir Pal’s) widow and daughter inherited this property in 1/4 shares but did not accept that the will Ext.P3 satisfied the mandatory requirements of the Indian Succession Act. It was pleaded that the defendant was in the IAS cadre and remained out of Shimla in connection with Government service. 4. The learned trial Court settled ten issues. Additional issues were framed on 13.7.1987 with respect to the validity of the will as also whether the defendants are not non-occupancy tenants of the suit property. 5. At this juncture, I note that issue of limitation was settled as issue No. 3 and against this issue, the finding of the learned trial Court is that this it has not been pressed. On the first and second issues, the learned trial Court held that the plaintiff could not prove himself to be the owner in possession of 1/2 share on the basis of will, but he is entitled for joint possession along with the other co-owners. All other issues were not pressed before the learned trial Court. In other words, the trial was confined to issues No. 1 and 2 and additional issue Nos. I, II and III. The first two issues related to the ownership of the plaintiff and additional issues are with respect to the validity of the will etc. 6. Both the State and the plaintiff appealed. The learned Additional District Judge, Shimla dismissed the appeals filed by the plaintiff as also the defendant-State. This appeal was admitted on 10.5.1999 on the following four substantial questions of law:- 1. Whether the property so vested in view of merger of princely Estates automatically vests into State or it requires specific revenue entries? 2. Whether the princely property can be claimed by the heir of ex-ruler by way of a family partition or otherwise after the merger of princely Estate into the State of H.P.? 3. Whether the State can also raise plea of adverse possession? 4. Whether for inheritance in princely Estates law of limitation also applied? 7. 2. Whether the princely property can be claimed by the heir of ex-ruler by way of a family partition or otherwise after the merger of princely Estate into the State of H.P.? 3. Whether the State can also raise plea of adverse possession? 4. Whether for inheritance in princely Estates law of limitation also applied? 7. Before considering the point of limitation, I must notice that though the plea was raised before the learned trial Court, but the issue was not pressed, but nonetheless the State insists that this being a question of law can be raised at any point of time and it was the duty of the Court to adjudicate on this point as it is a jurisdictional fact. In Ittyavira Mathai vs. Varkey Varkey and another, AIR 1964 SC 907 , the Supreme Court, while considering the applicability of the law of limitation, especially the provision of Section 3, held: “9. There is no reference to these averments in the written statement of the appellant. It would thus be clear that the appellant has not raised a sufficiently clear plea of limitation by stating relevant facts and making appropriate averments. It is apparently because of this that the trail court, though it did raise a formal issue of limitation, gave no finding thereon. Nothing would have been simpler for the trial court than to dismiss the suit on the ground of limitation if the plea was seriously raised before it. Had the point been pressed, it would not have been required to discuss in detail the various questions of fact pertaining to the merits of the case, before it could dismiss the suit. Moreover, the appellants could well have raised the question of limitation in the High Court in support of the decree which had been passed in their favour by the trial court. Had they done so, the High Court would have looked into the records before it for satisfying itself whether the suit was within time or not. The point now raised before us is not one purely of law but a mixed question of fact and law. No specific ground has even been taken in the petition made by the appellant before the High Court for grant of a certificate on the ground that the suit was barred by time. The point now raised before us is not one purely of law but a mixed question of fact and law. No specific ground has even been taken in the petition made by the appellant before the High Court for grant of a certificate on the ground that the suit was barred by time. In the circumstances, we decline leave to the appellant to raise the point of limitation before us.” (at p. 911) 8. This principle was subsequently reiterated in Food Corporation of India vs. Babu Lal Aggarwal, (2004) 2 SCC 712 where the Court held: “12 A suit filed beyond limitation is liable to be dismissed even though limitation may not be set up as a defence. The above position as provided under the law cannot be disputed nor has it been disputed before us. But in all fairness, it is always desirable that if the defendant would like to raise such an issue, he would better raise it in the pleadings so that the other party may also note the basis and the facts by reason of which suit is sought to be dismissed as barred by time. It is true that the court may have to check at the threshold as to whether the suit is within limitation or not. There is always an office report on the limitation at the time of filing of the suit. But in case the court does not prima facie find it to be beyond time at that stage, it would not be necessary to record any such finding on the point, much less a detailed one. In such a situation, at least at the appellate stage, if not earlier, it would be desired of the defendant to raise such a plea regarding limitation. In the present case except for making a passing reference in the list of dates/synopsis, no such ground or question has been raised or framed on the point of limitation. It is quite often that question of limitation involves question of facts as well which are supposed to be raised and indicated by the defendant the objecting party is not supposed to conveniently keep quiet till the matter reaches the Apex Court and wake up in a non-serious manner to argue that the court failed in its duty in not dismissing the suit as barred by time. The trial court may (at p. 724-725) not find the suit to be barred by time and proceed with the case but in that event the court would not be required to record any such finding unless any plea is raised by the defendant. In this connection, learned counsel for the respondent has placed reliance upon a decision reported in Ittyavira Mathai v. Varkey Varkey AIR 1964 SC 907 SCR at p. 506 wherein it has been held that it if is a mixed question of fact and law, a party would not be allowed to raise it later on, in case such an objection was not raised at the earlier 9. Learned Additional Advocate General places reliance on the judgment of the Supreme Court in Gannmani Anasuya and others vs. Parvatini Amarendra Chowdhary and others, (2007)10 SCC 296 in which the Supreme Court holds:- “27. In terms of Section 3 of the Limitation Act, it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties. Such a jurisdictional fact need not, thus, be pleaded. In any event, the said evidence was admissible for the purpose of contradicting a witness, which being a relevant fact should have been considered in its proper perspective. If the contents of Ext.B-8 were accepted, it was not for the High Court to consider the consequences flowing therefrom, and thus, but the fact whether the figure(s) contained therein could be verified from the books of account might not be very relevant. Whether, it would be in consonance with the pleadings of the appellants was again of not much significance if it can be used for demolishing the case of the plaintiffs and Defendant 1. If the figures contained in Ext.B-8 were accepted, it was for Defendant 1 to explain the same and not for the appellants. The High Court, in our opinion, thus, committed a manifest error in not taking into consideration the contents of Ext.B-8 in its proper perspective.” (at pp. 304-305) There is no dispute with this proposition that limitation is a bar for invoking jurisdiction of a Court. The High Court, in our opinion, thus, committed a manifest error in not taking into consideration the contents of Ext.B-8 in its proper perspective.” (at pp. 304-305) There is no dispute with this proposition that limitation is a bar for invoking jurisdiction of a Court. What has to be considered in the present case is as to whether any evidence has been led by the State to establish this plea and whether raising a plea of limitation and then abandoning that plea would entitle the State to raise this point in Regular Second Appeal, as a substantial question of law. 10.Learned counsel for the respondents submit that it is not open to the appellant to raise this plea at this stage. Learned counsel relies upon the decision of the Supreme Court in Dr. Mahesh Chand Sharma vs. Smt. Raj Kumari and others, AIR 1996 SC 869 holding: “32. The pleas of limitation raised by the defendant- appellant cannot be upheld for more than one reason. The reasons are the following: (a) Among the issues framed in the suit, Issue No. 5 pertains to the plea of limitation put forward by Defendant Nos. 2 to 5. The issue runs thus: “Whether the suit is within time?” On this issue, the learned Single Judges (Trial Judge) recorded a finding in favour of the plaintiff. He found the suit within limitation. The decision on the above issue was not contested by the parties before the Division Bench.The Division Bench has expressly recorded that ‘the decisions on the above issues (Issues 1,2,3,4,5 and 6) are not contested by the parties in this appeal and, therefore, the findings of the learned single Judge are hereby affirmed”. Once this is so, it is not open to the third defendant-appellant in these appeals to seek to re-agitate the said plea. We cannot allow him to do so. A party who abandons a particular plea at a particular stage cannot be allowed to re-agitate in appeal. (b) The plea of limitation raised in Para(8) of the defendant’s written statement was in the following words: “8. It is denied that the suit of the plaintiff is within limitation. The answering defendants and the predecessor-in-interest, Rajender Nath, have been in any case in adverse possession of the property in suit since 1954. “ It is on the basis of the said plea that Issue No. 5 aforementioned was framed. It is denied that the suit of the plaintiff is within limitation. The answering defendants and the predecessor-in-interest, Rajender Nath, have been in any case in adverse possession of the property in suit since 1954. “ It is on the basis of the said plea that Issue No. 5 aforementioned was framed. Now, let us examine what does the said plea signify? The plea has to be understood in the context of other pleas raised in their written statements. The defendant’s case was that the 1942 Will is not true and that after the deathof Ram Nath, first defendant came into possession of all the properties including the Doctor’s Lane House and was in adverse possession thereof since 1954. The plea of limitation was not based upon any other ground or fact. Once it is held that (a) the 1942 Will is true, and (b) the remainder bequest vested in the first defendant on the death of Ram Nath (as held by us hereinabove accepting the plea of the appellant), the bottom gets knocked out of this plea. It is also necessary to point out that there is no plea in the written statement that the adverse possession of the first defendant commenced under and by virtue of the 1955 settlement. There is also no plea that the adverse possession of the defendant commenced at any later point of time. It is well settled that the plea of adverse possession is not a pure question of law but a mixed question of fact and law. It is also well established that the party pleading adverse possession must state with sufficient clarity as to when his adverse possession commenced and the nature of its possession. In this case, the defendant’s plea is that the adverse possession of the predecessor-in-interest, i.e., the first defendant, commenced in 1954. Once that plea falls to ground, as held hereinabove, there is no alternate plea. To repeat, the defendants have not suggested that their adverse possession commenced at any later point of time.” (at pp 881-882) 11.It is thus clear that if the issue of limitation having been raised and abandoned, the State cannot raise this plea at this stage. I also note that no evidence has been led before the learned Courts below on this issue. 12. I also note that no evidence has been led before the learned Courts below on this issue. 12. Now I advert to the other questions, which have been raised by the appellant for consideration by this Court. I do not find any evidence in support of these substantial questions of law. However, during the pendency of the appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure was filed by the State to place on record documents namely Ext.A3 which is a photocopy of White Paper on Indian States, Ext.A-1 judgment passed by the Collector in case titled as State vs. Shiv Kumar Tandan as also judgment Ext.A-2 passed by this Court in appeal preferred against the judgment Ext.A-1. 13. These documents were taken on record vide order dated 17.10.2011, which reads:- “17.10.2011 Learned Assistant Advocate General has tendered in evidence Exts. A-1 to A-4, per separate statement. For rebuttal evidence, if any, to come up after three weeks. Put up after three weeks, along with RSA No. 425 of 1998 “ Learned Additional Advocate General has tendered in evidence Ext.A1 to Ext.A4 per seprate statements, which reads: “ i tender in evidence Exts. A-1 to A-4. (Objected to)....” This raises a fundamental question as to whether merely tendering documents and marking them as exhibits can be considered to be substantive evidence or not. The matter is no longer res- i nteg ra. In Sait Tarajee Khimchand and others vs. Yelamarti Satyam and others, AIR 1971 SC 1865 the Supreme Court holds: “15. The plaintiffs wanted to rely on Exhibits A-12 and A­13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof the plaintiffs’ books of account became important because the plaintiffs’ accounts were impeached and falsified by the defendants’ case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiff’s books would not have supported the plaintiffs.” (at p. 1868) I find that this principle has been reiterated in Narbada Devi Gupta vs. Birendra Kumar Jaiswal and another, (2003)8 SCC 745 holding: “16. The irresistible inference arises that the plaintiff’s books would not have supported the plaintiffs.” (at p. 1868) I find that this principle has been reiterated in Narbada Devi Gupta vs. Birendra Kumar Jaiswal and another, (2003)8 SCC 745 holding: “16. Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala & Sons (P) Ltd. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions fo the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as admitted documents. 17. We have already reproduced above the contents of Order No. 53 dated 3-9-1982 of the trial court. The appellant cannot be allowed to question the correctness of the said order. The documents were admitted and then exhibited. The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady.” (at p. 751) 14.Learned Additional Advocate General relies upon the decision of the Supreme Court in Union of India vs. Nihar Kanta Sen and others AIR 1987 SC 1713 to urge that under Sections 56 and 57 of the Evidence Act, judicial notice of notifications has to be taken into consideration, but this authority is not applicable in the present case as only a photocopy has been found on record of the case. Learned Additional Advocate General submits that two judgments, Ext.A-1 titled State vs. Shiv Kumar Tandon decided on 7.11.1975 and Ext.A-2 writ petition challenging Ext.A-1 decided by this Court on 4.8.1977; conclusively establish the title of the State as it has been judicially determined. All that I need say is that the respondents herein were not party to these proceedings and therefore, the judgment cannot be taken into consideration as the judgment is not in-rem as proceedings were between the State and Shri Shiv Kumar Tandon. What I find is that without placing on record the pleadings and evidence, the judgment per-se cannot be relied upon by the appellants to urge that property has vested in the State. I also notice that the plaintiffs herein did not subject the witnesses to cross examination to ascertain the veracity of what has been stated in the judgment or what has been pleaded. In these circumstances, additional evidence adduced by the State is also of no help to the plaintiff. Therefore, all four questions of law including the third question, which relates to the adverse possession and on which no foundation has been laid in defence before the Court below cannot arise for determination in this appeal. I may also notice at this juncture that before the learned trial Court, in the written statement filed, the defence taken by the State was that in the year 1950 the Bhajji Estate merged in the State of Himachal Pradesh (sic Himachal Pradesh) and the suit property is fully covered by the definition of public premises as denied in Himachal Pradesh Public Premises (Eviction and Rent Recovery), Act, 1972. It is in possession of the State of H.P. and the rights of the plaintiff have automatically extinguished. These pleadings have not been established by any evidence. 15.In rebuttal to the additional evidence, the respondent has also appeared as RW1 and stated that house situated in Kaithu was owned by his father late Sh. Rana Bir Pal Singh. It was his personal property and did not form part of the ‘Reeyasat’ of Bhaji. His father died in 1961 and after his death, he succeeded to this property. He has proved on record Ext.R1, which is a notice issued by the District Magistrate, Shimla stating the property should be requisitioned. Rana Bir Pal Singh. It was his personal property and did not form part of the ‘Reeyasat’ of Bhaji. His father died in 1961 and after his death, he succeeded to this property. He has proved on record Ext.R1, which is a notice issued by the District Magistrate, Shimla stating the property should be requisitioned. In these circumstances, the plea of the State that the property was in possession of the State since 1950 stands negated. There is no evidence produced by the State before the learned trial Court. I also do not find that additional evidence which is produced by way of marking the documents as exhibits supports the case of the appellant. Therefore, all four substantial questions of law are answered against the appellants. Appeal stands dismissed.