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2016 DIGILAW 2218 (HP)

Jai Krishan v. Bhagwan Chand

2016-10-18

SANDEEP SHARMA

body2016
JUDGMENT : SANDEEP SHARMA, J. 1. Both these appeals have been filed by appellant Jai Krishan against the common judgment and decree dated 20.3.2004 passed by learned District Judge, Shimla, Camp at Rohru in Civil Appeal Nos.76-R/13 of 2003, affirming the common judgment and decree dated 25.10.2000 passed by learned Sub Judge 1st Class, Court No.1, Rohru in two Civil Suits No.62-1 of 1997/135-1 of 1999 and 63-1 of 1997, whereby the suit filed by the appellant herein was dismissed and that of the respondent was decreed. 2. The main dispute between the parties relates to the land measuring 0-08-91 hectares comprising of Khata Khatauni No.31/60, Khasra No.138 old (new No.125), situate in Chak Thana, Tehsil Rohru, District Shimla. Principal contestants in the two suits were Bhagwan Chand and Jai Krishan even though some other parties were also impleaded in the suit. 3. Briefly the contention put forth by Bhagwan Chand was that he was the owner in possession of the disputed land which was earlier owned by his predecessors, who had mortgaged the same about 70 years ago in favour of the predecessors of Jai Krishan and others and this mortgage was redeemed by his father prior to 1950 and since then he claimed to be in possession of this land. It is averred that the disputed land was allotted to Bhagwan Chand by his father in a private partition in the year 1996 and since such partition, the disputed land was claimed to be in his exclusive possession. Bhagwan Chand further claimed that his father had planted 30 plants of apple on this land. It is also averred that in the year 1997, defendant Jai Krishan (appellant herein) had uprooted the apple plants from the disputed land and tried to take the forcible possession of the same against Bhagwan Chand. Jai Krishan is also said to have got revenue entries showing him to be in possession of the disputed land recorded fraudulently in connivance with settlement staff. 4. On the other hand, the contention of Jai Krishan was that he alongwith Tulsi Ram was the exclusive owner in possession of the disputed land since the times of his forefathers. Jai Krishan admitted that the disputed land was earlier mortgaged with possession by the predecessors of Bhagwan Chand in favour of his predecessors and others and it was claimed that such mortgage was never redeemed. Jai Krishan admitted that the disputed land was earlier mortgaged with possession by the predecessors of Bhagwan Chand in favour of his predecessors and others and it was claimed that such mortgage was never redeemed. Thus, Jai Krishan claimed that he alongwith Tulsi Ram became the owner of half share in the disputed land by efflux of time because of non-redemption of mortgage by the predecessors of Bhagwan Chand within the statutory period of limitation. With regard to the remaining half share, Jai Krishan claimed that they were the owners in their own right in this land. It was claimed that share of co-owner Nanak Chand had also devolved upon Jai Krishan and Tulsi Ram at the time of family partition. Thus, Jai Krishan claimed himself and Tulsi Ram to be the exclusive owner in possession of the disputed land. It was also stated by Jai Krishan that this land was lying Barren till the year 1996, where after it was being cultivated by him. 5. On the basis of above rival contentions, Bhagwan Chand filed a Civil Suit No.62-1 of 1977/135-1 of 1999 before the trial Court on 9.4.1997. In this suit Jai Krishan and other persons, who were recorded as co-owners in the disputed land, were impleaded as defendants and relief of permanent injunction was claimed by Bhagwan Chand against the defendants for restraining them from encroaching upon or interfering with the disputed land in any manner. This suit was contested by defendant Jai Krishan. All other defendants were proceeded ex-parte in this case. 6. Jai Krishan also filed a Civil suit No.63-1 of 1997/113-1 of 1999 against Bhagwan Chand and others, wherein he raised the contentions, which have been narrated above, and sought for declaration that he along with proforma defendant Tulsi Ram was the owner of the disputed land. It was also sought to be declared that the revenue entries showing the proforma defendants as owners were wrong and illegal. It was also sought to be declared that Bhagwan Chand was having no right, title and interest in the suit land and he was sought to be restrained from dispossessing Jai Krishan and Tulsi Ram from the disputed land illegally. With regard to a part of the disputed land, it was stated to have been mortgaged by the predecessors of Bhagwan Chand in favour of predecessors of Jai Krishan and Tulsi Ram. With regard to a part of the disputed land, it was stated to have been mortgaged by the predecessors of Bhagwan Chand in favour of predecessors of Jai Krishan and Tulsi Ram. It was sought to be declared that this mortgage was not redeemed for more than sixty years and as such, Jai Krishan and Tulsi Ram have become owner of the disputed land by efflux of time. 7. Both these suits were contested by the opposite party. The suit of Bhagwan Chand was contested by Jai Krishan and the suit of Jai Krishan was contested by Bhagwan Chand. All other defendants, except minors, were proceeded ex-parte in the suit due to their non-appearance before the trial Court. The material contentions, which have been raised by Jai Krishan and Bhagwan Chand in their suits, have been discussed above. Apart from this, both these parties took preliminary objections regarding valuation, jurisdiction, estoppel, maintainability of suit etc. in the written statements filed by them in the suit filed by the other party. 8. Both the suits were tried separately by learned trial Court earlier and issues were framed separately. However, later, both the suits were consolidated vide order dated 3.6.2000 and fresh issues were framed, which were common in both the suits. 9. Learned trial Court, on the pleadings of the parties, framed as many as 20 issues and vide his impugned judgment repelled all the preliminary objections raised by one party in the suit filed by the opposite party. With regard to the main issues on merits, that is, issues No.1, 2, 3, 10 and 11, the learned trial Court came to the conclusion that the disputed land was in exclusive possession of Bhagwan Chand at the time of filing of the suits. It has been also held that the mortgage in respect of the disputed land created by the predecessors of Bhagwan Chand has been redeemed. However, the case of Bhagwan Chand that the disputed land was allotted to him by his father in private partition or that Bhagwan Chand alone was the exclusive owner of the disputed land has been negatived by the trial Court. 10. The contention of Jai Krishan that he along with Tulsi Ram was the exclusive owner of the disputed land was also repelled by the trial Court. 10. The contention of Jai Krishan that he along with Tulsi Ram was the exclusive owner of the disputed land was also repelled by the trial Court. The contention of Jai Krishan that the mortgage in respect of the disputed land was never redeemed by the predecessors of Bhagwan Chand is also repelled by the learned trial Court. The contention of Jai Krishan that he and Tulsi Ram were in possession of the disputed land was also rejected by the learned trial Court. With these findings, the suit of the plaintiff Jai Krishan for the relief of declaration and injunction has been dismissed, whereas the suit filed by Bhagwan Chand has been decreed and defendant Jai Krishan and others (as per Civil Suit No.62-1 of 1997/135-1 of 1999) have been restrained from interfering with the possession of Bhagwan Chand over the disputed land in any manner. The parties have been left to bear their own costs. 11. Feeling aggrieved and dis-satisfied with the common judgment, dated 25.10.2000, passed by learned Sub Judge 1st Class, Court No.1, Rohru, District Shimla, in both the Civil Suits No.62-1 of 1997/135-1 of 1999 and 63-1 of 1997, appellant herein preferred an appeal before the learned District Judge, Shimla, Camp at Rohru, who vide impugned judgment dated 20.3.2004 upheld the aforesaid judgment and decree dated 25.10.2000, passed by the learned Sub Judge 1st Class, Rohru. 12. These second appeals were admitted on the following substantial question of law: ? (1) Whether the findings recorded by the learned first Appellate Court are vitiated by ignoring the material evidence and misreading the evidence on record? 2. Whether the findings arrived at by the learned first Appellate Court are contrary to settled law?? 13. Mr.Ajay Kumar, learned Senior Counsel, representing the appellant, vehemently argued that the judgments passed by both the Courts below are not sustainable as the same are not based upon correct appreciation of evidence adduced on record by the respective parties and as such same deserve to be quashed and set aside. Mr.Sood further argued that learned first appellate Court has erred gravely in deciding the case against the appellant merely on the basis of conjectures and surmises. Mr.Sood further argued that learned first appellate Court has erred gravely in deciding the case against the appellant merely on the basis of conjectures and surmises. Mr.Sood further contended that while deciding the case against the appellant and in favour of respondent No.1, learned first appellate Court has not appreciated the evidence on the case file in its true and proper perspective as a result of which great injustice has been caused to the present appellant. Both the Courts below have acted illegally and with material irregularity and rendered a palpably erroneous finding while interpreting Ex.P-8, perusal whereof clearly suggests that suit land, allegedly owned by predecessor-in-interest of present respondent, was under mortgage. During arguments having been made by him, he also invited the attention of this Court to Ex.P-8 i.e. Jamabandi for the year 1973-74 to demonstrate that findings of the Courts below that entries of possession in Jamabandi for the year 1973-74 was sufficient to conclude that land mortgaged by predecessor-in-interest of present respondent was redeemed is totally contrary to record. As per Mr.Sood, in case suit land had redeemed in the year 1950, as claimed by respondent No.1, entry of redemption ought to have been made in the revenue record but no documents were made available on record specifically suggesting therein that land mortgaged by the predecessor-in-interest of the present respondent was ever got redeemed either by late Shri Kahan Chand or his legal heirs. 14. Mr.Sood also invited the attention of this Court to the judgment passed by the learned first appellate Court to suggest that both the Courts below have rendered contradictory findings while deciding the suit because learned first appellate Court specifically concluded that Bhagwan Chand, respondent herein, though in exclusive possession of the disputed land but it is not entitled to the relief of prohibitory injunction of absolute nature against his co-owners. Learned first appellate Court also concluded that prohibitory injunction could be issued in favour of respondent Bhagwan Chand only to protect his exclusive possession by lawful means. Whereas the defendants co-owners of the disputed land could seek remedy against Bhagwan Chand in a lawful manner; meaning thereby that first appellate Court was convinced that other respondents (present appellants) were also recorded as co-owners in the disputed land. Whereas the defendants co-owners of the disputed land could seek remedy against Bhagwan Chand in a lawful manner; meaning thereby that first appellate Court was convinced that other respondents (present appellants) were also recorded as co-owners in the disputed land. He further stated that since Court has arrived at conclusion that appellant and respondent No.1 are also co-owners of suit land, there was no occasion for passing a decree of injunction against the co-owners and as such judgment and decree passed by both the Courts below are arbitrary, harsh, oppressive, illegal and contrary to record deserve to be quashed and set aside. 15. Apart from above, Mr.Sood, while making submissions before this Court, invited the attention of this Court to the judgment passed by both the Courts below to suggest that none of the documents tendered in evidence by present appellant were taken into consideration by the learned trial Court as well as by the first appellate Court, resulting in returning of erroneous findings. In this regard he specifically invited the attention of this Court to Ex.P-7 and Ex.P-10 i.e. Missalhaquiat Bandobast, wherein present appellant has been shown to be recorded in the column of ownership as well as possession. Similarly, he invited the attention of this Court to document Ex.DW-1/A i.e. order dated 29.8.1999 passed by the Assistant Collector 2nd Grade, Tikkar, Shimla, whereby application filed by the respondent; namely; Bhagwan Chand for correction of revenue entries (Ex.P-7 and Ex.P-10) stand rejected. While referring to the aforesaid documents, especially Ex.DW-1/A, Mr.Sood strenuously argued that since Assistant Collector 2nd Grade had passed an order dated 29.8.1999 on the application moved by the respondent Bhagwan Chand, present suit field by him was not maintainable because appropriate remedy, if any, for correction of revenue entries was under HP Land Revenue Act. He further stated that since no review/appeal was ever preferred by respondent Bhagwan Chand against order dated 29.8.1999 passed by Assistant Collector 2nd Grade, same attained finality and could not be looked into by the Civil Court in the civil proceedings. He further stated that since no review/appeal was ever preferred by respondent Bhagwan Chand against order dated 29.8.1999 passed by Assistant Collector 2nd Grade, same attained finality and could not be looked into by the Civil Court in the civil proceedings. He also invited the attention of this Court to the various documents Ex.DW-1/DA, Ex.DW-1/DB, Ex.DW-1/DC, Ex.DW-1/DE and Ex.DW-1/DF to demonstrate that present appellant had placed on record sufficient material on record to prove that suit land was never got redeemed by the predecessor-in-interest of the present respondent Bhagwan Chand and present appellant is in ownership and possession of the land but all these documents were not taken into consideration by the Courts below while decreeing the suit filed by present respondent No.1. 16. While concluding his arguments, Mr.Sood specifically invited the attention of this Court to the judgment passed by both the Courts below to state that documents tendered in evidence by present appellant, especially Ex.P-7 and Ex.P-10, were not taken into consideration by both the Courts below on the ground that change in the revenue entries have not been lawfully explained. Learned Courts below further concluded that the change in the entries, as reflected in documents Ex.P-7 and Ex.P-10, is said to have been incorporated at the time of recent settlement, which settlement proceedings in Shimla District Shimla hve been severely criticized and set aside by this Court in writ petition as per decision reported in Sh.Gian Singh and Others vs. The State of H.P. and Others, 1994 (2) Sim.L.C. 104. He stated that aforesaid judgment relied upon by both the Courts below, while rejecting the aforesaid documents tendered in evidence by the present appellant, stands nullified in light of judgment rendered by Hon'ble Apex Court in Civil Appeal No.1678 of 2002, dated 8.7.2009, wherein Hon'ble Apex Court has upheld the settlement operation carried out earlier prior to passing of judgment in Gian Chand’s case supra. 17. Mr.Sood forcefully contended that, now, in view of the judgment passed by the Hon'ble Apex Court, wherein settlement operation carried out earlier have been upheld, as such, both the suits, which are subject matter of this appeal, need to be examined afresh in light of the judgment rendered by Hon'ble Apex Court in Civil Appeal No.1678 of 2002 on 8.7.2009. 18. 18. To substantiate his aforesaid arguments, he also placed reliance upon judgment passed by this Court in Dharmi vs. Jania and Others, Latest HLJ 2011 (HP) 3, wherein factum with regard to upholding settlement operation by Hon'ble Supreme Court also came for discussion. In the aforesaid background Mr.Sood prayed for acceptance of appeal by setting aside the judgment passed by both the Courts below. 19. Mr.V.D. Khidta, learned counsel representing the respondent, supported the judgment passed by both the Courts below. Mr.Khidta, while inviting the attention of this Court to the judgment passed by both the Courts below, strenuously argued that same are based upon correct appreciation of evidence available on record and as such there is no scope of interference, whatsoever, of this Court in the present facts and circumstances of the case. He further stated that close scrutiny of the judgment passed by both the Courts below clearly suggests that Courts below have dealt each and every aspect of the matter meticulously and all the relevant material placed on record by the respective parties have been taken note of at the time of passing impugned judgment and as such this Court has no occasion, whatsoever, to interfere with the well reasoned concurrent findings returned on fact and law by both the Courts below. In this regard, to substantiate his 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 . 20. However, Mr.Khidta did not dispute the upholding of settlement operation carried earlier by the Hon'ble Supreme Court in CA No.1678 of 2002 on 8.7.2009, but he stated that apart from Ex.P-7 and Ex.P-10, there was sufficient material adduced on record by the respondent Bhagwan Chand, before the Courts below to demonstrate that land mortgaged by his predecessor-in-interest was redeemed and he is in possession of the suit land and as such judgment passed by Hon'ble Apex Court may not have any bearing upon the judgments passed by both the Courts below. 21. I have heard learned counsel for the parties and gone through the record of the case carefully. 22. 21. I have heard learned counsel for the parties and gone through the record of the case carefully. 22. In view of the detailed discussion, deliberation as well as law discussed hereinabove, I need not go into the entire factual matrix of the case as it clearly emerge from the record that Courts below misdirected themselves in deciding the controversy at hand while not taking note of the documents tendered in evidence by the present appellant especially Ex.P-7 and Ex.P-10, only substantial of law No.1 is being considered. Question No.1:- 23. This Court had an occasion to peruse the entire material made available on the record by the respective parties, perusal whereof clearly suggests that both the Courts below, while decreeing the suit filed by respondent Bhagwan Chand and rejecting the suit filed by the present appellant, have not taken note of certain documents led in evidence by the present appellant which could be material in deciding the controversy at hand. 24. Since this Court, at the first instance, deems it proper to deal with the arguments/submissions having been made on behalf of the present appellant, wherein it has been stated that the evidence tendered in support of claim put forth on behalf of present appellant (Ex.P-7 and Ex.P-10) was solely rejected by the Courts below on the ground that change in revenue entries Ex.P-7 and Ex.P-10 was made on the basis of recent settlement, which was ultimately set aside by this Court in Gian Singh’s case supra, at this stage, it may not be proper for this Court to critically examine the aforesaid documents tendered in evidence by the present appellant as far as merit/applicability of the same in the facts and circumstances of the case. 25. This Court, solely with a view to ascertain the genuineness and correctness of the claim put forth on behalf of the present appellant, examined the judgment passed by both the Courts below minutely, perusal whereof leaves no doubt in my mind that Courts below placed no reliance upon Ex.P-7 and Ex.P-10 led in evidence by the present appellant solely on the ground that those were based upon the entries made in the recent settlement which was set aside by this Court in Gian Singh’s case supra. 26. 26. True it is, settlements, on the basis of which entries were carried out in the revenue record, especially Ex.P-7 and Ex.P-10, were set aside by this Court in Gian Singh’s case supra, as a result of which amendment was carried out in H.P. Land Revenue (Amendment and Validation), Act, 1996 (for short `Act'). The aforesaid amendment made in Act was challenged before the Hon'ble Apex Court in CA No.1678 of 2002. It is undisputed before me that in the aforesaid Civil Appeal, Hon'ble Apex Court upheld the settlement operation carried out earlier; meaning thereby that entries made in Misalhaquiat Bandobast and Khasra Girdawari Ex.P-7 and Ex.P-10, during that relevant time could not be discarded by the Courts below on the ground that settlement proceedings on the basis of which aforesaid documents Ex. Ex.P-7 and Ex.P-10 were prepared were set aside by this Court in Gian Singh’s case supra. 27. This Court also perused the judgment in Dharmi’s case supra, relied upon by the learned counsel appearing for the appellant, which also suggest that judgment passed by this Court in Gian Chand’s case was lateron set aside by the Hon'ble Apex Court in CA No.1678 of 2002 on 8.7.2009 and Hon'ble Apex Court has upheld the settlement operation carried out earlier. 28. In Gian Chand’s case supra, petitioner therein highlighted various illegalities and irregularities committed by the settlement staff in carrying out the review of existing records of rights pertaining to revenue estate in Tehsil Rohru, Chirgaon and Dodra Kabar of District Shimla. Writ Court, while accepting the writ petition No.206 of 1988, directed the respondent to complete on going land revenue settlement operations in the areas in question as ?second revised settlement? in accordance with instructions contained in Paragraph 222 and Appendix XXI of the Punjab Settlement Manual with further direction to carry out amendment in the compendium of instructions in consonance with and pertaining to the procedure applicable to special revision of record-of-rights. Apart from above, Writ Court also ordered that new record-of-rights pertaining to the areas in question, prepared in the current settlement in relation to =Mohal-Bandi', =Naksha Bartan', =Wazib-ul-ars', classification of land, proposed DPFs and UPFs etc., be ignored and resettlement be started subsequent to the stage of Forecast Report. 29. Apart from above, Writ Court also ordered that new record-of-rights pertaining to the areas in question, prepared in the current settlement in relation to =Mohal-Bandi', =Naksha Bartan', =Wazib-ul-ars', classification of land, proposed DPFs and UPFs etc., be ignored and resettlement be started subsequent to the stage of Forecast Report. 29. Sequel to aforesaid directions passed by this Court in writ petition, State of H.P. carried out amendment by passing H.P. Land Revenue (Amendment and Validation) Act, 1996, validity of which was challenged in Hon'ble apex Court in CA No.1678 of 2002. 30. It is undisputed before me that in the aforesaid CA, Hon'ble Apex Court upheld the settlement operation carried out earlier ,which was the subject matter of the writ petition, titled Gian Singh & Others vs. State of H.P.. True it is that at the time of passing of impugned judgment, settlement proceedings carried out in Shimla District i.e. Rohru, Chirgaon and Dodra Kabar on the basis of which documents Ex.P-7 and Ex.P-10 were prepared was set aside by High Court. But fact remains that Hon'ble Apex Court in appellate proceedings pending before it, wherein amendment carried out by the State of H.P. was challenged to the earlier, upheld the settlement operation carried out earlier before passing of judgment in Gian Singh's case. 31. In view of the aforesaid findings returned by the Hon'ble Apex Court, this Court is of the view that documents especially Ex.P-7 and P-10 need to be re-examined by the Courts below because Hon'ble Apex Court has upheld the settlement proceedings carried out earlier on the basis of which aforesaid documents were prepared. At the cost of repetition, it may be again stated here that this Court has no hesitation after perusing the judgment passed by both the Courts below that both the Courts below while rejecting the documents Ex.P-7 and Ex.P-10 tendered in evidence by present appellant heavily relied upon the judgment passed by this Court in Gian Singh’s case supra, which was set aside by Apex Court. 32. Since this Court, in view of aforesaid development, intends to remand the case back to the trial Court for examining the matter afresh in light of findings returned by Hon'ble Apex Court, it may not be proper for it to examine the validity, genuineness and correctness of documents especially Ex.P-7 and P-10 at this stage. 33. 32. Since this Court, in view of aforesaid development, intends to remand the case back to the trial Court for examining the matter afresh in light of findings returned by Hon'ble Apex Court, it may not be proper for it to examine the validity, genuineness and correctness of documents especially Ex.P-7 and P-10 at this stage. 33. This Court in earlier part of this judgment has already observed that perusal of the judgment passed by Courts below nowhere suggests that material documents, as referred hereinabove, have been taken note of by both the Courts below, as a result of which findings recorded by Courts below are vitiated. Hence, substantial question of law No.1 is answered accordingly. Question No.2:- 34. As far as question No.2 is concerned, this Court is of the view that the same need not be answered at this stage, in view of remand order proposed to be made by this Court, keeping in view the subsequent developments which occurred during the pendency of the present appeal and as such the question is answered accordingly. 35. Though keeping in view the fact that appeal was pending in this Court since 2004, I was reluctant to adopt the course of action of remand, but have no other option in the facts and circumstances of the case. Accordingly, instant case is remanded back to the trial Court to consider the matter afresh in the light of findings returned by Hon'ble Alpex Court in Cases Referred : No.1678 of 2002, decided on 29.9.2008. However, at this stage, it may be clarified that trial Court while deciding the matter afresh need not to afford opportunity to the respective parties to lead evidence afresh, if any, in support of their respective claims. Rather, Court below shall decide the matter afresh on the basis of material already adduced on record, be it ocular or documentary by respective parties. Since this Court, during proceedings of the case, noticed that material documents tendered in evidence by the present appellant have not been taken into consideration, trial Court may also take into consideration of the documents especially Ex.P-7, Ex.P-10 and Ex.DW-1/A, exhibited on record by the respective parties. 36. Since this Court, during proceedings of the case, noticed that material documents tendered in evidence by the present appellant have not been taken into consideration, trial Court may also take into consideration of the documents especially Ex.P-7, Ex.P-10 and Ex.DW-1/A, exhibited on record by the respective parties. 36. Parties are directed to remain present before the trial Court on 25.11.2016, to avoid further delay in the matter, on which date trial Court would fix a date for hearing the matter further in the light of observations made hereinabove. Trial Court is also directed to complete and decide the controversy afresh within a period of three months. 37. Consequently, in view of detailed discussion made hereinabove, as well as findings returned by Hon'ble Apex Court in CA No.1678 of 2002, this Court deems it fit to remand the case back to trial Court with the direction to examine the matter afresh in light of findings returned by the Hon'ble Apex Court in case supra. Registry is directed to send the records of the case to the trial Court, forthwith. 38. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.