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2016 DIGILAW 1748 (HP)

Majalsi v. Zulmi Ram

2016-08-22

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. This appeal has been filed by the appellants defendants (hereinafter referred to as the `defendants’) against the judgment and decree dated 10.2.2006, passed by learned District Judge, Hamirpur, H.P., affirming the judgment and decree dated 29.1.2004, passed by learned Civil Judge (Junior Division), Court No.1, Hamirpur, H.P., whereby the suit filed by the Respondent-plaintiff (hereinafter referred to as the `plaintiff) has been decreed. 2. The facts necessary, as emerged from the record, necessary for adjudication of the case are that the plaintiff filed a suit for permanent prohibitory injunction against the defendants on the allegation that he had been owner in possession of land comprised in Khata No.51, Khatauni No.127, Khasra Nos.901, 903, 909, 911, 916, 917, 918, 932, 933, 934, 935, 937, 941, 942, kitta 14, measuring 10 Kanals 9 Marlas, as per Jamabandi for the year 1990-91, situated in village Rathwani, Mauza Mehlta, Tehsil Bhoranj, District Hamirpur, H.P. (hereinafter referred to as the `suit land’). It is averred that the suit land had been allotted to the plaintiff by the State of Himachal Pradesh on which the defendants had started interfering with the ownership and possession of the plaintiff over the suit land w.e.f. Ist week of May, 2000. They had been requested not to do so, but without any result. The defendants are sought to be restrained from interfering in the ownership and possession of the plaintiff over the suit land by issuance of a decree of permanent injunction. 3. Defendants, by way of filing written statement, raised preliminary objections on the grounds of maintainability, estoppel, non-joinder, limitation, want of cause of action, principles of resjudicata and valuation in preliminary objections. On merits, the defendants had admitted the allotment of the suit land in favour of the plaintiff by the State of Himachal Pradesh. It is alleged that the possession of the suit land had not been delivered to the plaintiff and the defendants and other estate right holders had been in possession of the suit land. It is further alleged that the defendants had instituted a Civil Suit regarding the suit land against the plaintiff and the State of Himachal Pradesh, which was dismissed by both the Courts below and against the said judgments and decrees, the defendants had instituted Regular Second Appeal bearing RSA No.488 of 1990 against the plaintiff and State of Himachal Pradesh before this Court. It is further alleged that the said RSA No.488 of 1990 was allowed by this Court vide judgment and decree dated 22.07.1999 (mark ‘A’), in which this Court had observed that “the plaintiffs-appellants (defendants herein) shall not be dispossessed from the suit land, unless already dispossessed, except, in due course of law”. It is further alleged by the defendants that this Court had directed the Collector to dispose of the proceedings under the H.P. Village Common Land (Vesting & Utilisation) Act, 1974, (hereinafter called the `Act’). As such, the plaintiff was not entitled to any relief much less to the discretionary relief of permanent prohibitory injunction and the defendants were entitled to special costs under Section 35-A of the Code of Civil Procedure from the plaintiff. 4. The learned trial Court, on the basis of pleadings, settled inasmuch as 9 issues and except Issue No.1, which is partly decided in favour of the plaintiffs, decided all the issues in favour of the plaintiffs and accordingly decreed the suit of the plaintiffs. An appeal preferred before the learned Appellate Court was dismissed. 5. This second appeal was admitted on the following substantial questions of law:- “(1) Whether the finding of the two Courts below that the respondent-plaintiff is in possession is not sustainable, in view of the statement of PW-1 Julmi Ram and PW-2 Lakhu Ram in which it is stated that the suit is for recovery of possession?” 6. As emerged from the record, plaintiff filed a suit for permanent prohibitory injunction against the defendants specifically stating that he is owner in possession of the suit land, as described above, which was allotted to him by the State of Himachal Pradesh. It is averred that the defendants started interfering in the ownership and possession of the plaintiff over the suit land w.e.f. Ist week of May, 2000 and as such they have filed suit praying for permanent prohibitory injunction against the defendants from interfering in the ownership and possession of the plaintiff over the suit land by way of decree of permanent injunction. 7. Defendants by way of written statement resisted the claim of the plaintiff. Though they admitted the allotment of the suit land in favour of plaintiff by State of Himachal Pradesh but denied his possession over the same and stated that defendants and other estate right holders had been in possession of the suit land. 7. Defendants by way of written statement resisted the claim of the plaintiff. Though they admitted the allotment of the suit land in favour of plaintiff by State of Himachal Pradesh but denied his possession over the same and stated that defendants and other estate right holders had been in possession of the suit land. Defendants specifically denied that the plaintiff is in possession of the suit land, rather they set up a case that they had instituted a suit against the plaintiff and the State, which was dismissed. However, in Regular Second Appeal, this Court observed that the defendants cannot be dispossessed, except, in accordance with law, and a direction was issued to the Collector to dispose of the proceedings under the H.P. Village Common Land (Vesting & Utilization) Act, 1974. 8. Being aggrieved with the concurrent findings returned by both the Courts below, present appellants defendants filed instant appeal on various grounds. However, main contention, which emerges from the grounds of the appeal as well as arguments having been made by learned counsel for the plaintiffs, is that no suit for permanent prohibitory injunction could be entertained or allowed by the Courts below filed by the true owner without being in possession of the suit land. As per defendants, plaintiff and his witnesses unequivocally admitted that the plaintiff had filed suit for possession, meaning thereby that the plaintiff is not in possession, as such, both the Courts below have erred in passing decree for permanent prohibitory injunction. 9. Apart from above, defendants have also placed reliance on mark ‘A’, judgment passed by this Court in RSA No.488 of 1990, wherein directions were issued that appellants-defendants herein be not dispossessed from the suit land, unless already dispossessed, except in accordance with law. As per defendants-appellants, in the present case, bare perusal of plaint nowhere suggests that the plaintiff pleaded that the defendants stand dispossessed by the earlier judgment of this Court and as such they are estopped from filing the present suit and this aspect has not been looked into by the learned Courts below while rendering the judgments. As per defendants-appellants, in the present case, bare perusal of plaint nowhere suggests that the plaintiff pleaded that the defendants stand dispossessed by the earlier judgment of this Court and as such they are estopped from filing the present suit and this aspect has not been looked into by the learned Courts below while rendering the judgments. Appellants-defendants also contended that bare perusal of the averments made in the written statement, which have not been denied by filing replication, would suggest that defendants are in possession of the suit land and as such no suit, if any, for permanent prohibitory injunction could be filed by true owner without being possession of the suit land and prayed that the judgments and decrees passed by both the Courts below be quashed and set aside. 10. Mr. Ajay Sharma, learned counsel appearing for the appellants-defendants, invited the attention of this Court to the statement made by the plaintiff’s witnesses wherein, in cross-examination they admitted that they have filed suit for possession, meaning thereby that at the time of filing of the suit, plaintiff was not in possession and the suit is not maintainable. Mr. Sharma contended that as per provisions of Order 8 Rule 5 of the Code of Civil Procedure, when there is no specific denial to a fact pleaded, the same is taken to be admitted and, as such, no further evidence was required but despite that courts below having rendered contrary decision to the well settled principle of law and have violated the provisions of Order 8 Rule 5 CPC. 11. Mr. Sharma also stated that both the Courts below have fallen in error while relying upon the Jamabandies for the years 1985-86 (Ex.P-1), 1990-91 (Ex.P-2) and even in Khasra Girdawari (Ex.P-3), while holding plaintiff to be in possession of the suit land because plaintiff himself as well as witnesses adduced by him specifically stated on record that the plaintiff filed suit for possession, whereas evidence led on record by appellants-defendants clearly proves that they are in possession of the suit land and as such both the Courts below have erred in holding the plaintiff to be in possession of the suit land. 12. Mr. 12. Mr. Sanjay Kumar Sharma, learned Counsel appearing for the respondents-plaintiffs, supported the judgments passed by both the Courts below and vehemently argued that no interference, whatsoever, is warranted in the present facts and circumstances of the case, especially in view of the fact that both the Courts below have very meticulously dealt with each and every aspect of the matter. He also urged that scope of interference by this Court is very limited especially when two Courts have recorded concurrent findings on the facts as well as law. In this regard, to substantiate the aforesaid plea, he placed reliance upon the judgment passed by Hon’ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264 . 13. I have heard learned counsel for the parties and have gone through the record of the case. 14. Plaintiff, with a view to prove his case, examined two witnesses. PW-1 Zulmi Ram, plaintiff himself, categorically stated in his examination-in-chief that he is owner in possession of the suit land and defendants have no right, title or interest over the same. He also stated that defendants want to take forcible possession of the suit land will not allow the plaintiff to become owner of the suit land. Plaintiff also tendered in evidence Jamabandies for the year 1985-86 and 1990-91, wherein he has been recorded owner in possession of the suit land. Moreover, entries of these Jamabandies have been repeated in Khasra Girdawari w.e.f. 30.10.1998 to 13.3.2000. 15. PW-2 Shri Lakhu Ram also supported the statement given by PW-1 Zulmi Ram by stating that plaintiff is owner in possession of the suit land and defendants have no right, title or interest in the suit land. He also stated that defendants want to take forcible possession of the suit land. However, both the plaintiff witnesses in their cross-examination, while answering to the suggestions that they have filed suit for possession, admitted that they have filed suit for possession of the land. Otherwise also, careful perusal of the cross-examination of these PWs nowhere suggests that the defendants have been able to discard the testimony of these witnesses who have been very specific and candid in stating that PW-1 is owner in possession of the suit land. Otherwise also, careful perusal of the cross-examination of these PWs nowhere suggests that the defendants have been able to discard the testimony of these witnesses who have been very specific and candid in stating that PW-1 is owner in possession of the suit land. PW-1 in his cross-examination stated that he has filed suit for taking possession but if his statement is read in its entirety, it can be safely concluded that he was candid enough in stating that he is owner in possession of the suit land and as such statement/admission, if any, made in cross-examination cannot be read in isolation. Whereas PW-2, in his cross-examination, stated that he has also filed suit for taking possession, meaning thereby, that while making statement he was referring to the suit which he filed for taking possession. Conjoint reading of aforesaid deposition made by the plaintiff witnesses, if read with Jamabandies for the years 1985-86 and 1990-91, which are duly proved on record, clearly demonstrate that they are owners in possession of the suit land. 16. DW-1 Meena Kumari, Patwari, who had come with the record of the proceedings under the Act, categorically stated that a case under Section 3(5) of the H.P. Village Common Land (Vesting and Utilization) Act is pending for inquiry before Revenue Department in terms of the order of the High Court of Himachal Pradesh. She also stated that report of Tehsildar has not been received as yet. However, in her cross-examination, she stated that inquiry is not going on regarding the land of Shri Zulmi, meaning thereby that, at the time of filing of the suit for permanent prohibitory injunction by the plaintiff, no proceedings, if any, qua the suit land were pending in the SDM Court under Section 3(5) of the Act. 17. DW-2 Milkhi Ram stated that he and villagers are possessing the suit land and that the plaintiff never possessed the suit land. He also stated that he had filed the suit when the suit land was allotted to the plaintiff, but the same was dismissed. He also stated that they had filed an appeal before the learned District Judge which was also dismissed. It has also come in his statement that the Hon’ble High Court of Himachal Pradesh allowed his second appeal being RSA No.488 of 1990, wherein SDM was directed to conduct an inquiry in the matter which is still pending. He also stated that they had filed an appeal before the learned District Judge which was also dismissed. It has also come in his statement that the Hon’ble High Court of Himachal Pradesh allowed his second appeal being RSA No.488 of 1990, wherein SDM was directed to conduct an inquiry in the matter which is still pending. In his cross-examination, he has shown his ignorance whether the mutation of the suit land has been entered in the name of the plaintiff. 18. DW-3 Chaudhary Ram also deposed that the plaintiff is not in possession of the suit land and that the villagers are possessing the suit land. He also stated that they had filed a suit against the plaintiff. It has also come in his statement that after the decision of Hamirpur Courts, the Hon’ble High Court of Himachal Pradesh sent the file to the SDM with the direction to conduct an inquiry and that at present the matter is pending before the SDM. He showed his ignorance whether the mutation has been entered in the name of the plaintiff qua the suit land. 19. DW-4 Gurcharan Singh also stated that the defendants are possessing the suit land and cases are going on between the parties regarding the suit land and that the Hon’ble High Court of Himachal Pradesh sent the case to SDM for inquiry. Defendants also tendered in evidence copy of order passed by this Court mark ‘A’. 20. Careful perusal of aforesaid statements made by defendants’ witnesses suggests that defendants made an attempt to set up a case that the plaintiff was never in possession of the suit land at the time of filing of the suit for permanent prohibitory injunction but conjoint reading of the depositions made by defendants’ witnesses nowhere proves that the plaintiff was not in possession at the time of filing of the suit for permanent prohibitory injunction because all the defendants witnesses stated nothing with regard to dispossession, if any, of the plaintiff from the suit land. Rather, they all stated that defendants as well as villagers are in possession of the suit land, but interestingly none of the defendants’ witnesses was able to state something with regard to entry of the name of the plaintiff in the mutation i.e. Jamabandies for the years 1980-85 and 1990-91. Rather, they all stated that defendants as well as villagers are in possession of the suit land, but interestingly none of the defendants’ witnesses was able to state something with regard to entry of the name of the plaintiff in the mutation i.e. Jamabandies for the years 1980-85 and 1990-91. Apart from this, defendants led no documentary evidence suggestive of the fact that their names have been recorded as owners qua the suit land, though defendant by way of placing the judgment passed by this Court mark ‘A’ tried to persuade the Courts below that he could not be dispossessed, save and except, in accordance with law. But this Court, while examining the record, could lay its hand to the judgment mark ‘A’ which nowhere suggests that suit, if any, was filed by the defendants against the plaintiff and as such it cannot be accepted that by way of aforesaid judgment being relied upon by the defendants, plaintiff was estopped from dispossessing the defendants from the suit land. Apart from above, bare perusal of order passed by this Court in mark ‘A’ suggests that appeal preferred by present defendants was dismissed with the direction to the State not to dispossess the plaintiff from the suit land, unless already dispossessed, except in due course of law. Rather perusal of the aforesaid judgment mark ‘A’ clearly suggests that defendants filed suit for permanent prohibitory injunction in representative capacity on the pleadings that suit land was shown in the Jamabandi for the year 1973-74 as ‘Shamlat Tikka’ and had thus vested in the Gram Panchayat under the Punjab Village Common Lands Act and thereafter in the State of Himachal Pradesh on coming into force of H.P. Village Common Lands (Vesting & Utilization) Act, 1974. The defendants, alongwith other right-holders of their village, approached this Court by way of filing a Civil Writ Petition bearing CWP No. 297 of 1975 challenging the vires of the said statues as well as the vesting of the land in the State of Himachal Pradesh on the ground that the suit land had been in individual cultivating possession of the villagers, including the defendants, since before January, 1950. However, fact remains that this Court dismissed the writ petition vide order dated 21.4.1978 with a direction to the Collector concerned to enquire into the claim of the defendants under Rule 9 of the Rules framed under the Act, referred to above. Record further reveals that the Collector concerned neither complied with the directions given by this Court nor he conducted any inquiry, as envisaged under Rule 9 ibid. Record further suggests that Collector never gave any decision regarding the vesting of the suit land or otherwise, in the State of Himachal Pradesh. 21. After perusing the aforesaid judgment, mark ‘A’, relied upon by the defendants, it nowhere emerges that plaintiff was restrained at any point of time by this Court to dispossess the defendants from land owned and possessed by them and as such this Court sees no illegality and infirmity in the judgments passed by both the Courts below. 22. While exploring the answer to the substantial question of law framed at the time of admission, this Court had an occasion to peruse the entire evidence led on record by respective parties and this Court sees no force in the contention put forth on behalf of appellant that Courts below mis-appreciated the statement of PW- 1 and PW-2. 23. At the cost of repetition, it is once again stated that PW-1 plaintiff Zulmi Ram and PW-2 Lakhu Ram in their examination-in-chief categorically stated that they are owners in possession of the suit land and they have filed suit for permanent prohibitory injunction restraining the defendants from causing interference. PW-1 admittedly in cross-examination, while answering the suggestion put forth to him, admitted that he has filed suit for possession but, as has been discussed above, the aforesaid admission, if any, cannot be read in isolation by defendants ignoring the documentary evidence i.e. Jamabandies for the years 1985-86 (Ex.P- 1), 1990-91 (Ex.P-2) and Khasra Girdawari (Ex.P-3), which clearly suggests that plaintiff Zulmi Ram is the exclusive owner in possession of the suit land. This Court had also an occasion to go to through the statement of PW-2 Lakhu Ram, who unequivocally stated that PW-1 Zulmi Ram is owner in possession of the suit land. However, in his cross-examination, he stated that he has also filed suit for possession of his land against the defendants. This Court had also an occasion to go to through the statement of PW-2 Lakhu Ram, who unequivocally stated that PW-1 Zulmi Ram is owner in possession of the suit land. However, in his cross-examination, he stated that he has also filed suit for possession of his land against the defendants. Whereas, defendants have not been able to lead sufficient evidence, be it ocular or documentary, to rebut the entries as contained in Jamabandies Ex.P-1 and P-2. Hence, this Court, after close scrutiny of the documentary evidence, is fully convinced that the plaintiff has been able to establish on record that he has been recorded owner in possession of the suit land and defendants are strangers to the suit land and as such this Court sees no illegality and infirmity in the judgments and decrees passed by both the Courts below. Admittedly, in the present case, defendants though claimed to be in possession of the suit land, but did not lead any cogent, convincing evidence suggestive of the fact that they are in possession of the suit land and as such both the Courts below have rightly held that defendants interfered in the suit land which belongs to the plaintiff. 24. Consequently, in view of detailed discussion made hereinabove, this Court has no hesitation to conclude that judgments passed by both the Courts below are based upon the correct appreciation of record/evidence available on record. To answer the substantial question, reproduced hereinabove, this Court traveled through entire evidence led on record by the parties to the lis and it can be safely concluded that both the Courts below have rightly returned the concurrent findings of facts as well as law after dealing with the evidence on record meticulously. Hence this Court is of the view that this is not a fit case wherein exercise of powers/jurisdiction under Section 100 CPC concurrent findings returned by both the Courts below cannot be upset, especially when the defendants have failed to prove that judgments are perverse. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by Hon’ble Apex Court in Laxmidevamma’s case supra, wherein the Court has held as under:- “16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by Hon’ble Apex Court in Laxmidevamma’s case supra, wherein the Court has held as under:- “16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’ right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.” (p.269) 25. Hence, in view of the aforesaid discussion, this Court is persuaded to conclude that the impugned judgments passed by both the Courts below are based on proper appreciation of the evidence, be it ocular or documentary on the record and, as such, substantial question of law, framed above, is answered accordingly. Hence, present appeal fails and the same is, accordingly dismissed. 26. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.