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2014 DIGILAW 1250 (HP)

State of H. P. v. Prabhu

2014-09-11

SURESHWAR THAKUR

body2014
Judgment Sureshwar Thakur, J. The instant appeal is directed against the judgment and decree, rendered on 29.10.2002, in Civil Appeal No. 64 of 1995, by the learned District Judge, Hamirpur, H.P., whereby, the learned First Appellate Court dismissed the appeal, preferred by the plaintiff/appellant. 2. Brief facts of the case are that the plaintiff/appellant instituted a suit for declaration on the allegations that the land, comprised in Khasra No. 245 (old Khasra No. 510) measuring 42 kanals 10 marlas was in the ownership and possession of the plaintiff-State of Himachal Pradesh, which fact is evident from the entries of copy of jamabandi for the year 1977-78 and prior to that it was shown recorded in the name of Gram Sabha. This land has now been vested in the State of H.P. free from all encumbrances under the H.P. Village Common Land (vesting and Utilisation) Act, 1974 vide mutation No. 175. Defendant No.1 obtained a decree against Gram Sabha, Dhanwan represented through defendant No.2 from the Court of Sub Judge, 1st Class, Hamirpur in Civil Suit No. 378 of 1969 decided on 31.5.1971. This decree is collusive obtained fraudulently by defendant No.1 in connivance with defendant No.2 as in the above noted suit the defendant No.2 filed written statement and contested the suit of defendant No.1. But in the meantime the learned counsel for defendant No.2 Sh. B.C. Uppal, Advocate, made statement in the Court and admitted the claim of defendant No.1. In the entries of Jamabandi for the year 1966-67 there is nothing in the revenue record to show that defendant No.1 was tenant at will under defendant No.2 and the entry qua tenancy was incorporated only in jamabandi for the year 1971-72 which shows that at the time when the aforesaid suit was filed in Court, neither defendant No.1 was tenant at will nor in hostile possession over the suit land for the last 35-36 years. Thus it is clear that the entry showing Sh.Prabhu Ram defendant No.1 as tenant at will of the suit land was recorded in jamabandi for the year 1971-72 collusively. An enquiry was also conducted by the Land Reforms Officer, Bhoranj, on 26.4.1990 and this entry showing defendant No.1 Prabhu Ram tenant at will was found to have been recorded wrongly. Thus it is clear that the entry showing Sh.Prabhu Ram defendant No.1 as tenant at will of the suit land was recorded in jamabandi for the year 1971-72 collusively. An enquiry was also conducted by the Land Reforms Officer, Bhoranj, on 26.4.1990 and this entry showing defendant No.1 Prabhu Ram tenant at will was found to have been recorded wrongly. The collusion of defendants is also clear as they got the compromise decree dated 31.6.1971 on the basis of statements made by the learned counsel for the parties. Even the Sarpanch himself had no authority to make any statement as an application had been filed by Sh. Hari Singh and other under Order 1 Rule 10 CPC for making them party in which it was alleged that defendant No.1 had filed suit in collusion with defendant No.2. The said settlement of the defendants No. 1 and 2 was to defeat the legitimate right, title and interest of the plaintiff-State of H.P. Therefore, the judgment and decree dated 31.5.1971 passed by Sub Judge, Ist Class, Hamirpur, being collusive is null and void and inoperative against the plaintiff. The plaintiff came to know about the said collusion only on 22.11.1990 when defendant Prabhu Ram filed an appeal against the order of Assistant Collector, 1st Grade, Bhoranj, dated 26.4.1990. From the documents attached with the appeal, the plaintiff came to know that in the civil suit vide which decree was passed in favour of said Prabhu, the plaintiff-State of H.P. was not party in that suit. As such, the plaintiff filed this suit for declaration against the defendants. 3. The defendants/respondents contested the suit and filed written statement, thereby they took preliminary objections firstly to the effect that the suit is not within limitation, secondly that the plaintiff has no cause of action, thirdly that the plaintiff is stopped from challenging the entry of tenancy in favour of Prabhu Ram as this entry was incorporated as per order passed by the Collector himself and lastly that the suit against defendant No.2 is not maintainable as he is not Pradhan of Gram Sabha, Dhanwan. On merits, the defendants denied the allegations contained in the plaint. The defendants alleged that Prabhu Ram was tenant qua the suit land on payment of rent at the rate of Rs.10/- per annum as is evident from the entries of Jamabandi for the year 1971-72. On merits, the defendants denied the allegations contained in the plaint. The defendants alleged that Prabhu Ram was tenant qua the suit land on payment of rent at the rate of Rs.10/- per annum as is evident from the entries of Jamabandi for the year 1971-72. The defendants further alleged that no doubt in the year 1973 correction was made against the entry of said Prabhu in the column of possession but it was without jurisdiction as on an appeal filed by said Prabhu before Collector the case was remanded to Assistant Collector, 1st Grade for further inquiry and fresh decision. Consequently, the Assistant Collector, Ist Grade made fresh enquiry who referred to the judgment and decree of Sub Judge, 1st Class date 31.5.1971 and also of appeal filed by Sh. Bakshi Ram etc. in the Court of learned District Judge, Hamirpur who dismissed their appeal on 25.7.1972 and Prabhu Ram was held in possession of Khasra No. 510 measuring 42 kanals 10 marlas and his entry of possession was ordered to be restored from Kharif 1973. Therefore, the plaintiff cannot take advantage of the entries of Jamabandi for the year 1977-78 which are quite wrong. After the enforcement of H.P. Tenancy and Land Reforms Act, Prabhu Ram automatically became owner qua the suit land from 3.10.1973. The judgment and decree obtained by Prabhu Ram against Gram Sabha Dhanwan is perfectly right, legal and sustainable. All the other allegations made by the plaintiffs in plaint are denied by the defendants in toto. As such, the defendants alleged that the suit of the plaintiff is not maintainable and is liable to be dismissed. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties in contest:- 1. Whether the judgment and decree dated 31.5.1971 in civil suit No. 378 of 1969 of Sub Judge, 1st Class, Hamirpur, is null and void and not binding on the rights of the plaintiff? OPP. 2. Whether the suit is not maintainable as alleged? 3. Whether the suit is barred by time? OPD-1. 4. Whether the plaintiff is estopped from challenging the entry of tenancy of defendant as alleged? OPD-1. 5. Relief. 5. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff. OPP. 2. Whether the suit is not maintainable as alleged? 3. Whether the suit is barred by time? OPD-1. 4. Whether the plaintiff is estopped from challenging the entry of tenancy of defendant as alleged? OPD-1. 5. Relief. 5. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff. In appeal, preferred before the learned first Appellate Court by the plaintiff/appellant, against the judgment and decree of the learned trial Court, the learned first Appellate Court also dismissed the appeal. 6. Now the plaintiff/appellant has instituted the instant Regular Second Appeal before this Court, assailing the findings, recorded in the impugned judgment and decree recorded by the learned first Appellate Court. When the appeal came up for admission on 29.10.2003, this Court, admitted the appeal instituted by the plaintiff/appellant, against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial questions of law:- 1. That the judgment and decree of both the Courts below are contrary to the provisions of the Punjab Village Common Land Act, 1961 and H.P. Village Common Land (Vesting, Utilisation and Regulation) Act, 1974 and are liable to be set-aside. 2. That the findings of both the Courts below qua the limitation are contrary to the provisions of Article 112 of the Limitation Act, 1963. Hence, the judgment and decree of both the Courts below are liable to be set aside. Substantial Questions of Law No.1&2. 7. Initially, it will be apposite to advert to the relevant material, available on record, for adjudging the factum of the tenability of the contention of the learned Additional Advocate General focused upon the effect of erroneous findings, having been rendered by both the Courts below, on the apposite issue of the non-maintainability of the suit on the score of it having been barred by limitation, as rendition of findings on the preceding substantial question of law would hinge upon the fate of adjudication of the substantial question of law relating to maintainability of the suit on the ground of it, as returned by both the Courts below being barred by limitation. For the reasons, to be recorded hereinafter, this Court does not find any merit or tenacity in the contention of the learned Additional Advocate General who has with full force and vehemence, canvassed that the view adopted by the learned Courts below in declaring the suit of the plaintiff/appellant to be not maintainable while being hit by Article 58 of the Limitation Act, is both perverse as well as unreasonable and warrants interference by this Court. (a) The suit, instituted by the plaintiff-appellant, was for setting aside the decree, rendered in a previous suit, in which the State was not a party, bearing registration No.378 of 1969 on score of it having been obtained by collusion inter-se the plaintiff and defendant No.1. The period prescribed in Article 58 of the Limitation Act for a decree of declaration in a previous suit being set-aside, on the score of it being obtained by fraud or collusion, is a period of three years from the accrual of the right to sue. The learned Additional Advocate General contends that the factum of the previous decree sought to be declared null and void, on the score it having been obtained by fraud or collusion came to the knowledge of the plaintiff or the plaintiff became aware of it on 22.1.1990, as such, he contends that hence the limitation for institution of a suit for setting aside the previous decree, aforesaid, commenced there-from and the civil suit having been instituted by the plaintiff within three years from the date of its acquiring knowledge or having become aware of the factum of the previous decree renders it to be within limitation. However, for the following reasons the said contention necessitates its being dispelled (a) The material on record demonstrating the fact of the Assistant Collector 2nd Grade in 1973 on noticing defendant No.1 to be neither owner or in possession of the suit land had proceeded to order correction of the entries in the revenue record, inasmuch, as, of defendant No.1 being directed to be reflected as tenant under the State of H.P. Consequently, entries qua the suit land were corrected. However, the defendant No.1 preferred an appeal against the order of the Assistant Collector 2nd Grade before the Assistant Collector 1st Grade, Hamirpur. However, the defendant No.1 preferred an appeal against the order of the Assistant Collector 2nd Grade before the Assistant Collector 1st Grade, Hamirpur. The Assistant Collector 1st Grade, Hamirpur, dis-concurred with the order rendered by the Assistant Collector 2nd Grade and proceeded to hence restore the entries qua the suit land in favour of defendant No.1 from Kharif crop 1973. However, the order of the Assistant Collector 1st Grade, Hamirpur, was carried in appeal by one Ganga Ram before the Collector, Hamirpur in case being No. 92 of 1981 decided under Ext.D-14. In the aforesaid appeal, preferred by one Ganga Ram against the order of the Collector 1st Grade before the Collector, Hamirpur, the State of Himachal Pradesh was arrayed as respondent No.3 apart there-from the Collector, Hamirpur in the said appeal was respondent No.3 and was represented by the Additional District Attorney. The Collector while being seized of the appeal preferred before him agreed with the order rendered by the Assistant Collector 2nd Grade whereby the latter had directed the correction of the revenue entries qua the suit land, inasmuch, as, the State of H.P. being ordered to be reflected as owner thereof, whereas defendant No.1 being ordered to be incorporated as a tenant under the State of H.P. in the apposite column of the Jamabandi qua the suit land. Moreover, the Collector, Hamirpur, ordered for the carrying out a fresh enquiry with a further direction to associate the State of Himachal Pradesh before the Assistant Collector, Hamirpur. What is pre-eminently divulged by Ext.D-14, the order rendered by the Collector, Hamirpur is that the State of H.P. which was arrayed as respondent No.3 in appeal before him was represented by the Additional District Attorney. Consequently, with the representation of the plaintiff in the proceedings before the District Collector, Hamirpur, it is not open for the learned Additional Advocate General to contend that in the proceedings in appeal taken up before the Collector, Hamirpur and which sequelled the rendition of a judgment by him comprised in Ext.D-14 qua the suit land that then the factum of the rendition of a judgment and decree in case Civil Suit No. 378 of 1969 previously decided in favour of defendant No.1 on 31.5.1971 was neither in the know of the plaintiff nor it was aware of its rendition till 1990. Consequently, it has to be firmly held that even though the State of H.P. acquired knowledge of the judgment of the previous litigation inter-se the defendant and Gram Sabha, Dhanwan in the year 1981, yet, it having omitted to as prescribed by Article 58 of the limitation Act, challenge the judgment and decree previously rendered in favour of defendant No.1 by the Civil Court of competent jurisdiction on 31.5.1971, within three years thereafter, bars the suit instituted on 16.1.1992, to be hit by limitation. Consequently, it is rendered not maintainable. (b) It is manifest from the material on record that the State of Himachal Pradesh, the plaintiff in the instant case, was a party in case No.36 of 1988, which constituted an appeal preferred by defendant No.1 against the rejection of mutation No.253 under order of 29.2.1988 by the Assistant Collector, 2nd Grade Bhoranj. The said order rendered by the Assistant Collector, 2nd Grade Bhoranj is comprised in Ext.D-15 and is rendered on 17.11.1988. In the face their being a revelation in Ext.D-15 of a judgment having been rendered previously in favour of defendant No. 1 on 31.5.1971 bespeaks the fact that in the year 1988 also, the plaintiff-State of H.P. was in the know of or was aware of the judgment and decree rendered in favour of defendant No.1 in the previous litigation adjudicated on 31.5.1971. In face thereof, the plaintiff-State of H.P. having omitted to within the period of limitation prescribed under Article 58 of the Limitation Act for setting aside the decree previously rendered by the Civil Court of competent jurisdiction on the score of it having been obtained by fraud or collusion or despite it having then acquired knowledge of the rendition of a decree in favour of defendant No.1 by a Civil Court of competent jurisdiction, to assail it within the prescribed period of limitation inasmuch, as, within three years of its having acquired such knowledge, renders the suit time barred, as aptly concluded by both the Courts below. 8. The summon bonum of the above discussion is that this Court is constrained to uphold the findings recorded by both the Courts below on the issue of maintainability as also on the issue of the suit of plaintiff being barred by limitation. 8. The summon bonum of the above discussion is that this Court is constrained to uphold the findings recorded by both the Courts below on the issue of maintainability as also on the issue of the suit of plaintiff being barred by limitation. The view as taken by both the Courts below is reasonable and based on a proper appreciation of material on record and does not suffer from any perversity or absurdity nor also warrants any interference by this Court, sequelling this Court to hold that tenable and sustainable findings on the issue of limitation as well as maintainability of the suit of the plaintiff, have been recorded by both the Courts below. This Court is constrained to answer both the substantial questions of law in favour of the defendants/respondents and against the plaintiff/appellant. 9. The result of the above discussion is that the appeal, preferred by the plaintiff/appellant, is dismissed and the judgments, rendered by the learned Courts below, are affirmed and maintained and suit of the plaintiff is dismissed. However, the parties are left to bear their own costs.