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2014 DIGILAW 919 (HP)

Salig Ram v. Rakesh Kumar

2014-07-17

SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge The instant appeal is directed against the judgment and decree, rendered on 5.9.2002, in Civil Appeal No.37-N/13 of 2002, by the learned Additional District Judge, Sirmaur District at Nahan, H.P., whereby, the learned First Appellate Court dismissed the appeal, preferred by the defendant/appellant. 2. Brief facts of the case are that the plaintiffs/respondents instituted a suit for declaration on the allegations that the land, comprised in Khewat No.11, Khatauni No.21 min, measuring 11 bighas 19 biswas, which is part of khasra No.447/7 and the land, comprised in khewat No.4, khatauni No.5 min, khasra Nos. 1, 3 and 22, measuring 6 bighas 4 biswas, situated in village Ajga, Tehsil Pachhad, District Sirmaur, H.P., was owned and possessed by them, except plaintiff No.5, Datta. It is averred that against them, except plaintiff No.3, Tara Devi, the defendant, on, November, 30, 1996, procured in his favour an ex-parte order, declaring him in possession of part of this land comprised in Khasra No.447/1, measuring 11 bigha 19 biswa and khasra Nos. 1, 3 and 22, measuring 6 bigha, 4 biswa (hereinafter referred to as ‘the suit land’), even though he was not in possession of the same. On the basis of these orders, the defendant got his name incorporated in the column of possession of the relevant revenue records vide mutation Nos.161 and 162. The plaintiffs averred that they preferred an appeal before the Sub Divisional Collector, Rajgarh, but the same was dismissed. Hence, the present suit was filed by the plaintiffs for a decree of declaration that they were owners and in possession of the suit land and the revenue entries of possession, incorporated in favour of the defendant in the revenue records, in respect of the suit land, were illegal, without jurisdiction and not binding on them, except plaintiff No.3. In the alternative, prayer was made for a decree of possession of the suit land in case the defendant was proved in possession. 3. The defendant/appellant contested the suit and filed written statement, thereby denying the claim of the plaintiffs/respondents of ownership and possession. It is averred that the suit land, which, according to defendant/appellant, is a Shamlat land, was privately partitioned and possessed by Angniya Ram and Ramsukh Dass. The latter two inducted him as tenant thereon on payment of actual land revenue. The defendant/appellant contested the suit and filed written statement, thereby denying the claim of the plaintiffs/respondents of ownership and possession. It is averred that the suit land, which, according to defendant/appellant, is a Shamlat land, was privately partitioned and possessed by Angniya Ram and Ramsukh Dass. The latter two inducted him as tenant thereon on payment of actual land revenue. The defendant/appellant claimed that he had become owner of the suit land by virtue of the provisions of H.P. Tenancy & Land Reforms Act and the rules, framed thereunder. The defendant/appellant further has averred that he was still in possession and that it was on the basis of wrong and illegal partition order that the wrong entries, showing the plaintiffs/respondents to be owners and in possession of the suit land, came to be incorporated in the revenue records. The partition order has been averred by the defendant/appellant, to be passed behind his back. The plaintiffs/respondents, have been averred by the defendant, to have no cause of action and locus standi to file the suit. The plaintiffs/respondents, have been averred by the defendant/appellant, to be estopped from suing by their act and conduct. 4. The plaintiffs/respondents filed replication to the written statement of the defendant/appellant, wherein, they denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiffs are owner in possession of the suit land and the entries showing defendant in possession in the land revenue record, as alleged are wrong, illegal, null and void and not binding on the plaintiffs? OPP. 2. In the alternative, if the plaintiffs are not found in possession of the suit land, whether the plaintiffs are entitled to the decree of possession, as alleged? OPP 3. Whether the defendant is in possession of the suit land as tenant, as alleged? OPD 4. Whether the suit is time barred? OPD 5. Whether the plaintiffs have no locus standi? OPD. 6. Whether the plaintiffs have not cause of action? OPD 7. Whether the plaintiffs are estopped from filing the suit, as alleged? OPD 8. Relief. 6. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents, declaring them owner in respect of the suit land. OPD. 6. Whether the plaintiffs have not cause of action? OPD 7. Whether the plaintiffs are estopped from filing the suit, as alleged? OPD 8. Relief. 6. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents, declaring them owner in respect of the suit land. In appeal, preferred before the learned first Appellate Court, against the judgment and decree of the learned trial Court, by the defendant/appellant, the learned first Appellate Court dismissed the appeal. 7. Now the defendant/appellant has instituted the instant Regular Second Appeal before this Court, assailing the findings, recorded by the learned first Appellate Court, in, its impugned judgment and decree. When the appeal came up for admission on 12.3.2003, this Court, admitted the appeal instituted by the defendant/appellant, against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question of law:- 1. Whether the suit of the plaintiff was beyond the period of limitation, as contemplated under Article 100 of the Limitation Act? Substantial question of Law No.1. 8. The defendant/appellant had, in answer to the claim of the plaintiffs-respondents, being owner in possession of the suit land, laid a claim to his being in possession of the suit land, on the strength of orders, rendered by the Revenue Officers, declaring the defendant/appellant to be enjoying possessary rights over the suit property, in consequence whereto mutations bearing Nos.161 and 162 were respectively rendered by the Revenue Officers concerned. Even though, one of the plaintiffs/respondents, namely, Bheem Dutt, preferred an appeal before the appellate authority, nonetheless, he could not succeed. On the strength of the orders, rendered by the Revenue Officer, which sequelled attestation of mutation qua the defendant/appellant, being in possession of the suit land, the learned counsel for the defendant/appellant has canvassed the following submissions:- a) That the mutations, recording the defendant/appellant to be in possession of the suit property, enjoy a presumption of truth. On the strength of the orders, rendered by the Revenue Officer, which sequelled attestation of mutation qua the defendant/appellant, being in possession of the suit land, the learned counsel for the defendant/appellant has canvassed the following submissions:- a) That the mutations, recording the defendant/appellant to be in possession of the suit property, enjoy a presumption of truth. The presumption remains un-rebutted for adduction of adequate, sufficient and abundant proof to dislodge it; and b) The rendering of mutations No.161 and 162 qua the fact of the defendant-appellant being in possession of the suit land anvilled and anchored upon orders of the Revenue Officers declaring them to be so, hence, enjoy fortifying force and validity, besides they attain finality; c) Theirs having remained unchallenged before the higher echelon in the hierarchy of Revenue Officers/Officials competent to hear appeals/revisions, as envisaged under the H.P. Land Revenue Act imbues them with and they partake character of their having conclusively clinched the dispute inter-se the parties at contest before this Court, especially when one of the respondents Bheem Dutt was a party in the appeal preferred whereby the order of the Revenue Officer declaring the defendant/appellant to be enjoying possessory rights over the suit property, was assailed. He proceeded to urge that, besides when they have assumed conclusiveness and finality qua the fact of theirs declaring the defendant/appellant to be enjoying possessory rights qua the suit property, the omission on the part of the defendant/appellant to assail it within the period prescribed in Section 65 of the Limitation Act for assailing the said orders, in as much, as, when the orders of the Revenue Officers declaring the defendant/appellant to be in possession of the suit land, were challengeable or assailable within one year, theirs having remained unchallenged within one year, consequently, rendered the suit barred by limitation. As such, it is argued that the suit, being beyond limitation, the civil Court, which rendered a decree in favour of the plaintiffs/respondents, was not, hence, competent to try, adjudicate or render a conclusive and binding decree qua the suit property in favour of the plaintiffs/respondents, it, being outside its jurisdiction being barred by limitation. 9. In making the said submission, the learned counsel for the defendant/appellant relies upon the judgments, reported in Devta Shri Ajmal versus Shri Dilu & Ors., 1997 (3) Sim.L.C. 345 and in Ajudh Raj & Ors. 9. In making the said submission, the learned counsel for the defendant/appellant relies upon the judgments, reported in Devta Shri Ajmal versus Shri Dilu & Ors., 1997 (3) Sim.L.C. 345 and in Ajudh Raj & Ors. Versus Moti s/o Mussadi, AIR 1991 SC 1600 . 10. On the other hand, learned counsel for the plaintiffs/respondents contends that the judgments and decrees, rendered by both the learned trial Court as well as by first appellate Court, are neither perverse nor absurd. The submission, as addressed, before the first appellate Court, qua limitation, has been discountenanced for valid and tenable recorded reasons by the First Appellate Court, hence, the view as adopted by the learned First Appellate Court, in disconcurring with the submission of the learned counsel for the defendant/appellant, anvilled upon the suit being barred by limitation, necessitates reverence by this Court, as well. 11. Initially, it is imperative to elucidate that the jurisdiction of the Civil Courts for setting aside the revenue entries or in interfering with and reversing the findings, recorded by the revenue officer, on contest, having erupted inter-se the wrangling parties, qua the tenabilities of entries, reflected in the revenue records, is, neither fettered nor trammeled. In law, no conclusiveness or finality is to be given to orders, rendered by the revenue officer, where parties agitate, as referred above, over entries recorded in revenue records in pursuance to the directions rendered by the revenue officer. However, such interference, by Civil Court with the entries, incorporated in revenue record, in pursuance to the directions, rendered by the revenue officer, is, not plenary, rather, is warranted only where such orders are non-est or in non conformity with the provisions of law or in absolute transgression of the principles of natural justice. 12. The learned counsel for the defendant/appellant has though proceeded to assail the judgments and decrees of the learned Courts below, on the score aforesaid, in as much, as, the suit at the instance of the plaintiffs/respondents having been instituted one year beyond the prescribed period of limitation from the date of rendition of an order of the Sub Divisional Collector on 30th June, 2000 declaring the defendant/appellant to be in possession of the suit land. However, the said contention, addressed before this Court, by the learned counsel for the defendant/appellant, would have been sustained by this Court only in the event of its having been displayed:- (i) that the previous determination, qua, the competing/rival rights of the parties at contest qua the suit property was inter partes, the parties at contest before this Court. However, in the event of the above condition, having come to be satisfied and such satisfaction, portraying the fact that, hence, with their being a prior conclusive determination on a contest, qua analogous property inter partes, the parties at contest before this Court and their being too, no, non-conformity with the principles of natural justice nor with any procedure established by law, hence, the hue of finality, is, partaken by the orders rendered by the Revenue Officer. Obviously, then the plaintiff would be estopped from instituting a suit before a Civil Court of competent jurisdiction. 13. On a keen and discerning study of the material on record, it, reveals that there does not exist, on the file of this case, either the proceedings or orders rendered by the Assistant Collector of any grade on an application moved by the defendant/appellant for recording them to be possessors of the suit property. Omission of the said fact, on record, has hidden from the view of this Court: (a) the essential tenets for determining the validity as well as the consequent finality arising on an application of the principle of res-judicata to the orders rendered by the Assistant Collector of any grade, in as much, as the application moved by the defendant/appellant for theirs being recorded in possession of the suit property, would alone have surfaced the fact of theirs having been arrayed the plaintiffs-respondents, as the opposite party therein; and (b) the plaintiffs-respondents having been served prior to the orders having been passed, as well as, theirs having come to be heard. 14. Consequently, when the above material remains hidden from the view of this Court, this Court, is, constrained to pronounce that the orders rendered by the Assistant Collector of any grade pronouncing and declaring the defendant/appellant to in, possession of the suit property, were so pronounced not after the plaintiffs/respondents were heard, as such, in the rendition of the orders, the mandate of the solemn tenet of audi alteram partem was transgressed. Obviously, for reiteration, then it has to be concluded that orders, rendered by the Assistant Collector of any grade, declaring and pronouncing the defendant/appellant to be in possession of the suit property, were rendered in blatant and flagrant violation of the principles of natural justice. Naturally, when there was non-conformity with the aforesaid tenet of natural justice by the Revenue Officers, in passing the orders, as well, as consequently attesting mutation Nos.161 and 162 declaring the defendant/appellant being in possession of the suit property, the, order could be challenged at the instance of the plaintiffs/respondents, by way of instant suit, as the conclusiveness or finality, which could come to be fastened to the orders of the Assistant Collector of any grade would accrue, only in the event of, the previous lis being qua analogous property inter partes, the parties at lis before this Court and the plaintiffs arrayed therein as respondents, were heard. Only in the event of theirs being heard, hence, being aware of the proceedings in the previous lis inter partes, the contesting parties in the instant lis, the period of limitation obviously would commence from the date of rendition of orders. However, in the instant case, there is no disclosure from the material on record qua the plaintiffs/respondents being either arrayed as parties in the application which sequelled the orders and consequent mutations attested in favour of the defendant/appellant declaring them to be in possession of the suit property nor is there any disclosure of theirs having come to be served or having participated, in such proceedings nor also there is any material divulging the fact of theirs having been heard and, hence, having become aware of the orders. As a sequel, limitation would commence from the date of theirs having become aware of the assailable orders. 15. Even the fact of one of the plaintiffs, namely, Bheem Dutt, having filed an appeal before the Sub Divisional Collector would not fasten any validity to the orders rendered by the Revenue Officers, in, the first instance, unless it was displayed, that, besides Bheem Dutt, others also participated in the proceedings before the Revenue Officers in the first instance when he pronounced and declared the defendant/appellant to be in possession of the suit property, which material, however, is amiss and, hence, constrained this Court to render a finding as reflected herein-above and to be reflected hereinafter. Consequently, even if Bheem Dutt came to institute an appeal against the order rendered by the Revenue Officers concerned with a direction in it, of the defendant/appellant being in possession of the suit property, it, would not, hence, also, tantamount to an appeal also at the instance of the other plaintiffs/respondents as well, unless it is proved that Bheem Dutt, the appellant, was the authorized attorney to represent the other plaintiffs/respondents in proceedings before the appellate Revenue Forum, which proof is amiss. Also then the preferment of appeal by the appellate Revenue Forum, cannot, be construed to be an appeal, also, at the instance of the other plaintiffs/respondents nor also, hence, it could be concluded that the determination rendered, in, appeal by the appellate Revenue Forum, is, to be binding and conclusive qua the parties at contest or it acquires or partakes finality, qua the dispute as had then erupted, as the previous lis was not inter partes, the parties now litigating before this Court, therefore, the previous determinations do not bespeak the fact of or partake any characteristic or trait, which renders, applicable to them, the principle of res-judicata, so, as to oust the institution of the suit, at, the instance of the plaintiffs/respondents. 16. The summon bonum of the above discussion is that the nonacquisition of knowledge by the defendant/appellant of previous determinations, imminently surfacing on account of the non-representation, besides non-appearance of the plaintiffs/respondents collectively and cumulatively, in any, of the proceedings either before the Revenue Officer, at the first instance or before the appellate Forum, hence, not investing the previous determination to be acquiring the hue of a final and conclusive determination inter partes, the parties at lis before this Court. As such, as and when acquisition of knowledge qua the rendition of orders and qua recording of mutations in consequence or in sequel thereto was acquired by the plaintiffs/respondents, and with the determinations or the verdicts rendered by the Revenue Officer being also outside the ambit of the principle of res-judicata, and for reasons, aforesaid, countervening the principles of natural justice, could be, hence, challenged even beyond the period of one year. 17. 17. The result of the above discussion is that the appeal, preferred by the defendant/appellant, is dismissed and the judgments, rendered by the learned Courts below, are affirmed and the substantial question of law is answered in favour of the plaintiffs/respondents and against the appellant/defendant.