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2016 DIGILAW 1911 (HP)

Padama @ Mathra Devi v. Bhagat Ram

2016-09-07

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This regular second appeal is directed against the judgment and decree of the learned District Judge, Mandi, H.P. dated 11.3.2008, passed in Civil Appeal No. 40/2007. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs), have instituted a suit for possession of land comprised in Khewat Khatauni No. 25/32, Kh. No. 497 measuring 1-13-15 bighas, situated in Mauja Anu, Illaqa Balh, Tehsil Sadar, Distt. Mandi, H.P. (hereinafter referred to as the suit land), as per jamabandi for the year 1995-96 with the averments that the appellants-defendants (hereinafter referred to as the defendants) are in possession of the suit land without any right, title or interest. They have completely refused to vacate the suit land from 7.12.2001. The defendants were again asked by the plaintiffs on 19.12.2001 to hand over the possession but they have refused to do so. 3. The suit was contested by the defendants. According to the defendants, the suit was barred under Order 2 Rule 2 CPC. The predecessor-in-interest of defendants, namely, Durgu son of Kanhu had filed an application before the Assistant Collector for correction of revenue entries against the plaintiffs. It was decided in favour of Durgu. Since then, Durgu was recorded in possession and after his death the defendants are in possession of the same. Later on, one of the plaintiffs, i.e. Shiv Shankar, filed an application for correction of the revenue entries in respect of the suit land which was dismissed vide order dated 4.5.1996. The plaintiffs filed a civil suit for declaration in respect of the suit land which was also dismissed on 17.9.2001 and the possession of Durgu, was confirmed as non-occupancy tenant. The defendants were in possession of the suit land and they have acquired proprietary rights by operation of H.P. Tenancy and Land Reforms Act. 4. Replication was filed and the learned Civil Judge (Jr. Divn.) Court No. II, Mandi and issues were framed on 20.4.2004. The suit was dismissed on 15.3.2007. The plaintiffs, feeling aggrieved, preferred an appeal before the learned District Judge, Mandi. He allowed the same on 11.3.2008. Hence, this regular second appeal. 5. The regular second appeal was admitted on 5.12.2008 on the following substantial questions of law: “1. Divn.) Court No. II, Mandi and issues were framed on 20.4.2004. The suit was dismissed on 15.3.2007. The plaintiffs, feeling aggrieved, preferred an appeal before the learned District Judge, Mandi. He allowed the same on 11.3.2008. Hence, this regular second appeal. 5. The regular second appeal was admitted on 5.12.2008 on the following substantial questions of law: “1. Whether the judgment and decree of the 1st appellate Court is vitiated on account of mis-appreciation, misreading and non-appreciation of Ext. PB and Ext. DA, the judgment and decree dated 17.9.2001 passed in the earlier suit, Ext. D-1, the order dated 4.5.1994 of Assistant Collector and Ext. DW-1/A the order dated 31.8.1982? 2. Whether the learned first Appellate Court is justified to reverse the findings of the trial Court by concluding that Order 2 Rule 2 CPC is not attracted in the present case, although, vide Ext. DA it has come on record that the plaintiff in the earlier suit has abandoned the relief for possession of the suit land? 3. Whether Ext. DW-1/A can be read in favour of the defendants with respect to the factum of possession of the suit land since 1982, although, the said order has not been assailed by the plaintiffs in the instant suit and the findings thereof has already been concluded in the earlier suit vide Ext. PB and Ext. AD?” 6. Mr. Lalit K. Sharma, Advocate, appearing on behalf of the appellants, on the basis of the substantial questions of law framed, has vehemently argued that the first Appellate Court has misread judgment Ext. PB and Ext. DA decree dated 17.9.2001 passed in the earlier suit Ext. D-1, the order dated 4.5.1994 of Assistant Collector and Ext. DW-1/A and the order dated 31.8.1982. According to him, Order 2 Rule 2 CPC was attracted in the present case. Ext DW-1/A could not be read in favour of the defendants with respect to factum of possession of the suit land since 1982. On the other hand, Mr. Suneet Goel, Advocate has supported the judgment and decree passed by the first Appellate Court. 7. Since all the substantial questions of law are inter-connected, hence are taken up together for determination to avoid repetition of discussion of evidence. 8. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully. 9. 7. Since all the substantial questions of law are inter-connected, hence are taken up together for determination to avoid repetition of discussion of evidence. 8. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully. 9. PW-1 Shiv Shankar testified that the plaintiffs, including him were owners of the suit land. The plaintiffs have never inducted defendants as their tenants. He has denied that the plaintiffs have inducted Durgu as non-occupancy tenant. He admitted that Durgu moved an application before the Tehsildar for correction of revenue entries. However, he had no knowledge about the outcome of the same. He also admitted that earlier they had filed a suit qua the suit land. 10. DW-1 Bhup Chand testified that the suit land earlier was in possession of their predecessor and thereafter it came into possession of Durgu. His father had filed an application for correction of revenue entries in the Tehsil which was decided in his favour. Shiv Shankar had also moved an application for correction of the revenue entries. The plaintiffs filed a suit qua the suit land which was dismissed. The plaintiffs never remained in possession of the suit land and they were owners of the suit land. They were inducted as Gair Marusi in the year 1981-82, however, he could not tell about the negotiations qua the same. 11. The copy of judgment dated 17.9.2001 has been exhibited as Ext. PB and Ext. D-2. The present suit has been filed for possession under Section 5 of the Specific Reliefs Act, 1963 on the basis of title. There are specific averments that cause of action accrued to the plaintiffs on 7.12.2001 when the defendants refused to vacate the possession from the suit land and did not hand over the same despite requests made by the plaintiffs. The predecessor-in-interest of the defendants Durgu has filed an application for correction of the revenue entries before Assistant Collector IInd Grade. He placed on record order dated 31.8.1982 vide Ext. DW-1/A. The plaintiffs moved an application for correction of the revenue entries which was rejected by Assistant Collector IInd Grade on 4.5.1994. The predecessor-in-interest of defendants, namely, Durgu son of Kanhu was held to be tenant over the suit land by Assistant Collector IInd Grade, Sadar Mandi. He placed on record order dated 31.8.1982 vide Ext. DW-1/A. The plaintiffs moved an application for correction of the revenue entries which was rejected by Assistant Collector IInd Grade on 4.5.1994. The predecessor-in-interest of defendants, namely, Durgu son of Kanhu was held to be tenant over the suit land by Assistant Collector IInd Grade, Sadar Mandi. The Assistant Collector IInd Grade was not competent to decide the dispute under Section 104(4) of the Act. The order Ext DW-1/A dated 31.8.1982 was nullity and without jurisdiction. It is also well settled that the order passed without inherent jurisdiction is nullity. The actions taken pursuant thereto are also nullity. The entries were made in favour of predecessor-in-interest of defendants, namely, Durgu son of Kanhu on the basis of Ext DW-1/A, order dated 31.8.1982. Durgu was recorded as “Gair Maurusi Bila Lagan Babajah Ghas Katai” as per jamabandi for the year 1995-96. The defendants have not proved that they have paid any rent to the landlord. The tenancy is a bilateral act. Moreover, Bhoop Chand, while appearing as DW-1 has admitted that no rent was ever paid to the plaintiffs. Thus, neither the predecessor-in-interest of defendants, namely, Durgu son of Kanhu nor the defendants could be termed as tenants over the suit land. 12. Now, as far as previous judgment dated 17.9.2001 is concerned, the relief of possession was also claimed in the previous suit. The defendants were required to prove that the second suit was in respect of the same cause of action as in the previous suit and the plaintiffs were entitled to more than one relief in the previous suit and without the leave of the Court omitted to sue for such relief for which second suit has been filed. Lastly, unless there was identity between the cause of action on which the earlier suit was filed and upon which the claim in the later suit was based, there would be no scope for application of the bar. The defendants have not proved as to what was the exact nature of the relief claimed in the previous suit as even the copy of the plaint has not been filed. The plaintiffs have never relinquished the claim of possession in the previous suit. Since order Ext DW-1/A dated 31.8.1982 is nullity and without jurisdiction, it could be challenged in collateral proceedings. The plaintiffs have never relinquished the claim of possession in the previous suit. Since order Ext DW-1/A dated 31.8.1982 is nullity and without jurisdiction, it could be challenged in collateral proceedings. Moreover, the order being null and void could be assailed before the Civil Court. The order passed by Assistant Collector IInd Grade Ext DW-1/A dated 31.8.1982 would not create any right, title or interest in favour of the defendants. 13. The first Appellate Court has correctly appreciated the judgment and decree dated 17.9.2001 as well as orders dated 4.5.1994 and 31.8.1982 rendered by Assistant Collector IInd Grade, Sadar Mandi. The first Appellate Court has rightly come to the conclusion that Order 2 Rule 2 CPC was not attracted in the instant case. It is reiterated that one of the defendants DW-1 Bhoop Singh has also categorically admitted that no rent was ever paid to the plaintiffs. The substantial questions of law are answered accordingly. 14. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending applications, if any.