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2016 DIGILAW 2255 (HP)

Tholu (deceased) through LR‘s v. Sukh Ram

2016-10-22

SANDEEP SHARMA

body2016
JUDGMENT : SANDEEP SHARMA, J. 1. Instant appeal has been filed against judgment and decree dated 11.8.2006 rendered by the learned Presiding Officer, Fast Track Court, Mandi, District Mandi, HP in Civil Appeal No. 43/2003, 16/2005, whereby judgment and decree dated 13.12.2002 rendered by the learned Sub Judge 1st Class, Court No. II, Mandi, HP in Civil Suit No. 341/99/98 has been reversed and suit has been dismissed. 2. Briefly stating facts of the case as emerge from the record are that the plaintiff appellant (herein after referred to as =plaintiff') filed a suit for injunction against the respondents defendants (herein after referred to as =defendants') stating therein that land comprising of Khewat No. 141 Khatauni No. 148, Khasra Nos. 587, 736, 738, 740, 746, 748 Kitas 7 measuring 20-19-16 Bighas, situated in Muhal Tarwai,/177, Illaka Bairkot, Tehsil and District Mandi (herein after, =suit land') is jointly owned and possessed by him alongwith other co-sharers and defendants have no right, title and interest over the suit land. It is further averred that the plaintiff was in possession of the suit land and defendants are trying to dispossess him from peaceful possession. Since, defendants were causing interference in the suit land, plaintiff was compelled to file the instant suit praying therein for perpetual injunction restraining the defendants from dispossessing him from the suit land and for decree of mandatory injunction. 3. Defendants filed written statement denying the case of the plaintiff in toto stating that plaintiff is wrongly recorded as owner-in-possession of the suit land to the extent of ½ share. Defendants have also averred that they are in possession of the suit land and entire land is exclusively in their possession. It is further averred that Nika Ram, Het Ram, Bhagat Ram and Gulab Singh have transferred their shares in the land situated at Muhal Tarwai in their favour. Apart from this, defendants also raised plea of adverse possession in the alternative, learned trial Court, on the basis of pleadings of the parties, framed issues and vide impugned judgment dated 13.12.2002, decreed the suit of the plaintiff restraining the defendants from dispossessing the plaintiff from the suit land. Defendants being aggrieved and dissatisfied with the judgment and decree passed by learned trial Court, filed appeal in the Court of Presiding Officer, Fast Track Court, Mandi, which came to be registered as CA No. 43/2003, 16/2005. Defendants being aggrieved and dissatisfied with the judgment and decree passed by learned trial Court, filed appeal in the Court of Presiding Officer, Fast Track Court, Mandi, which came to be registered as CA No. 43/2003, 16/2005. Learned first appellate Court, on the basis of material adduced before him, allowed the appeal preferred by the defendants, after setting aside the judgment and decree passed by learned trial Court. Being aggrieved with the judgment and decree dated 11.8.2006 passed by Presiding Officer, Fast Track Court, Mandi, plaintiff filed instant regular second appeal, praying therein for quashing of judgment and decree dated 11.8.2006 passed by the first appellate Court. 4. Instant regular second appeal was admitted on 16.5.2007, on the following substantial questions of law: ?1. Whether the ld. first appellate court has misread, misconstrued and mis-appreciated the oral as well as documentary evidence of the parties especially Ex.AX which has prejudiced the case of the appellant? 2. Whether the judgment and decree dated 19.7.2001 has overriding effect over the judgment and decree dated 13.12.2002? 3. Whether the estoppel will arise against the respondents/defendants by not taking plea in the trial court with regard to EX. AX?? 5. This matter came up for final hearing before this Court on 2.5.2016, on which date, Mr. G.R. Palsra, argued that judgment and decree passed by first appellate Court is not sustainable as it is against law and facts on record. Mr. Palsra strenuously argued that there is total misreading of oral and documentary evidence on record, by the first appellate Court, as such same can not be allowed to sustain. Mr. Palsra, further stated that great miscarriage of justice has been caused to the plaintiff. 6. Mr. Atul Jhingan, Advocate supported the judgment and decree passed by the first appellate Court. He stated that bare perusal of judgment and decree passed by first appellate Court clearly suggests that the same is based upon correct appreciation of the evidence adduced on record by the respective parties. There is no scope of interference, whatsoever by this Court, as such, same deserves to be upheld. With a view to substantiate aforesaid argument, he invited attention of this Court to judgment dated 19.7.2001 passed by Sub Judge, Court No.2, Mandi, Ext. AX, to demonstrate that land comprised in Khewat No. 141 Khatauni No. 148, Khasra Nos. There is no scope of interference, whatsoever by this Court, as such, same deserves to be upheld. With a view to substantiate aforesaid argument, he invited attention of this Court to judgment dated 19.7.2001 passed by Sub Judge, Court No.2, Mandi, Ext. AX, to demonstrate that land comprised in Khewat No. 141 Khatauni No. 148, Khasra Nos. 587, 736, 738, 740, 746, 748 Kitas 7 measuring 20-19-16 Bighas, situated in Muhal Tarwai,/177, Illaka Bairkot, Tehsil and District Mandi was the subject matter of the civil suit No. 455/99/96, whereby trial Court passed judgment and decree for declaration and consequential relief of injunction. 7. Mr. G.R. Palsra, with a view to rebut aforesaid contention raised by Mr. Atul Jhingan, made this Court to travel through zimni orders passed by first appellate Court to demonstrate that no opportunity, whatsoever, was granted to the present appellant to rebut the correctness, if any, of the judgment Ext. AX placed on record by the defendants in Civil Suit No. 455/99/96. He specifically stated that learned first appellate Court while allowing application under Order 41 Rule 27 CPC filed by defendants, placing on record certified copy of judgment Ext. AX, no opportunity was granted to the plaintiff to rebut the same and as such same could not be read in evidence. He forcefully contended that once judgment and decree passed by learned Sub Judge, Court No. II, Mandi was allowed to be taken on record, it was incumbent upon the first appellate Court to afford opportunity to the plaintiff to rebut the same. He strenuously argued that since no opportunity to rebut Ext. AX was given to the plaintiff, great prejudice has been caused to him. Mr. Palsra further contended that since decree sought to be relied upon by the defendants was ex parte decree, learned first appellate Court was bound to give opportunity of rebutting as well as to lead cogent and reliable evidence in this regard. This Court, keeping in view aforesaid submissions made on behalf of the respective counsel, came to the conclusion that no opportunity of hearing was given to the plaintiff by the first appellate Court while allowing application under Order 41 Rule 27 CPC preferred by the defendant placing therewith additional document i.e. certified copy of judgment in Civil Suit No. 456/99/96 (Ext. AX) and, accordingly, remanded the case back to the first appellate Court to decide the same afresh. AX) and, accordingly, remanded the case back to the first appellate Court to decide the same afresh. This Court, specifically, with the consent of parties, directed the first appellate Court to afford opportunity to the plaintiff to rebut judgment and decree dated 19.7.2001 by leading oral as well as documentary evidence with further liberty to the plaintiff to cross-examine the same on that issue. 8. Sequel to the direction dated 2.5.2016, learned first appellate Court proceeded to decide the matter afresh in light of observation /finding returned in the aforesaid order and passed order dated 4.8.2016, perusal whereof suggests that notice was given to the parties to put appearance before the Court with the direction to produce evidence, in rebuttal to the document Ext. AX. It appears that, defendant placed on record Nakal Jamabandi for the year 2007-08 of Mohal Tarwai, Ext. RA and copy of impugned order passed by ADM Mandi, Ext. RB and closed rebuttal evidence, whereas record suggests that the plaintiffs did not file any evidence in rebuttal of the document Ext. AX. 9. Pursuant to receipt of order/judgment dated 4.8.2016, passed by ADJ, Mandi, matter was again heard in detail. Now, this Court, after perusing fresh findings recorded by the ADJ-II, Mandi in order dated 4.8.2016, passed in compliance to order passed by this Court, would be taking up substantial question of law for consideration. Keeping in view the controversy as well as text and contents of the substantial question of law, this Court would be taking up all the substantial questions of law together for consideration. 10. Since, the learned Counsel representing the plaintiff had alleged that no opportunity of rebutting document Ext. AX was afforded to by the learned first appellate Court, while allowing application moved on behalf of defendant under Order 41 Rule 27 CPC, this court vide order dated 2.5.2016 remanded the case back to the learned first appellate Court to record fresh finding qua Ext. AX by affording opportunity of hearing to both the parties. Learned first appellate Court vide order dated 4.8.2016 examined validity and applicability of document Ext. AX, afresh after affording due opportunity of hearing to the parties. Perusal of order dated 4.8.2016, clearly suggests that plaintiff did not lead any evidence on record to dispute genuineness and correctness of Ext. AX by affording opportunity of hearing to both the parties. Learned first appellate Court vide order dated 4.8.2016 examined validity and applicability of document Ext. AX, afresh after affording due opportunity of hearing to the parties. Perusal of order dated 4.8.2016, clearly suggests that plaintiff did not lead any evidence on record to dispute genuineness and correctness of Ext. AX, perusal whereof clearly suggests that Sukh Ram, defendant filed suit bearing No. 456/99/96 in the Court of Sub Judge, Court No. II, Mandi, for declaration with consequential relief of injunction against several persons, including present appellant/plaintiff on the plea that the land comprising of Khewat No. 141 Khatauni No. 148, Khasra Nos. 587, 736, 738, 740, 746, 748 Kitas 7 measuring 20-19-16 Bighas, situated in Muhal Tarwai,/177, Illaka Bairkot, Tehsil and District Mandi is wrongly recorded in the ownership and possession of the defendant (present plaintiff) and said revenue entries are not binding upon him as well as proforma defendants (defendants herein). Learned Sub Judge, Court No. II, Mandi, on the basis of pleadings as well as evidence adduced on record, decreed the suit filed by plaintiff and held revenue entries in document Ext. PW-1/D showing defendant as owner in possession are wrong and they have no right, title or interest in the suit land, whereas, plaintiff (defendant herein) and proforma defendants were held owners of suit land comprised in Khewat No. 141 Khatauni No. 148, Khasra Nos. 587, 736, 738, 740, 746, 748 Kitas 7 measuring 20-19-16 Bighas, situated in Muhal Tarwai,/177, Illaka Bairkot, Tehsil and District Mandi. 11. It is undisputed that aforesaid judgment passed by Sub Judge, Court No. II was not challenged before higher Court by any of the affected parties and as such same attained finality. Close scrutiny of memo of parties as well as description of suit land given in Civil Suit No. 455/99/96 clearly suggests that the plaintiff herein was a party in that case and suit land as described in Civil Suit No. 341/99/98, which is subject matter of present appeal was also subject matter of Civil Suit No. 455/99/96. Careful perusal of judgment and decree dated 19.7.2001, Ext. AX clearly suggests that Sukh Ram (defendant) had filed suit against several persons including plaintiff (Tholu) and vide aforesaid judgment, he was declared to be owner in possession of land comprising of Khewat No. 141 Khatauni No. 148, Khasra Nos. Careful perusal of judgment and decree dated 19.7.2001, Ext. AX clearly suggests that Sukh Ram (defendant) had filed suit against several persons including plaintiff (Tholu) and vide aforesaid judgment, he was declared to be owner in possession of land comprising of Khewat No. 141 Khatauni No. 148, Khasra Nos. 587, 736, 738, 740, 746, 748 Kitas 7 measuring 20-19-16 Bighas, situated in Muhal Tarwai,/177, Illaka Bairkot, Tehsil and District Mandi, which is subject matter of the present appeal. 12. Since this is undisputed before this court that judgment dated 19.7.2001 has attained finality, learned first appellate Court while accepting appeal preferred by defendant, rightly relied upon document Ext. AX and held defendant herein to be owner-in- possession of suit land as described herein above. It is also undisputed, rather duly stands established on record that document Ext. AX was passed prior in time than judgment and decree dated 13.12.2002 passed by Civil Judge (Junior Division), Court No. II, Mandi, whereby plaintiff was held to be owner-in-possession of the suit land, which was admittedly subject matter of Civil Suit No. 455/99/96. Since, suit filed by the defendant Sukh Ram was decided prior to passing of judgment and decree dated 13.12.2002, it had overriding effect on judgment and decree dated 13.12.2002. Perusal of judgment dated 19.7.2001, Ext. AX clearly suggests that the plaintiff Tholu was one of the parties in Civil Suit No. 455/99/96 i.e. suit for declaration filed by Sukh Ram (defendant) and as such plaintiff Tholu is bound by judgment and decree dated 19.7.2001, Ext. AX passed by Sub Judge, in the suit filed by defendant. 13. Since, no document worth the name was placed on record by plaintiff to controvert judgment dated 19.7.2001, passed by Sub Judge, Court No. II, Mandi, this Court sees no illegality or infirmity in the order passed by first appellate Court whereby defendant has been held to be owner in possession of the suit land described herein above. It also emerges from subsequent findings returned by first appellate Court that defendant placed on record order passed by ADM Mandi in Appeal No. 56/89 decided on 28.2.1991 (Ext. RB), perusal whereof suggests that same is with regard to Khasra No. 737, 752, 990, 950, 995, 1025, 1026, 881, 891, 897, 989, 899, 901, 913, 218 and 220. It also emerges from subsequent findings returned by first appellate Court that defendant placed on record order passed by ADM Mandi in Appeal No. 56/89 decided on 28.2.1991 (Ext. RB), perusal whereof suggests that same is with regard to Khasra No. 737, 752, 990, 950, 995, 1025, 1026, 881, 891, 897, 989, 899, 901, 913, 218 and 220. Partition proceedings initiated at the behest of Sukh Ram (defendant) was decided by Assistant Collector on 5.2.1986 wherein plaintiff, Tholu was proceeded ex parte. 14. Hence, this Court, after careful perusal of judgment Ext. AX, has no hesitation to conclude that revenue entries in document Ext. PW-1/B reflecting plaintiff as owner-in possession are wrong and he has no right, title or interest over the suit land. Perusal of Ext. RB suggests that Khasra numbers as described herein above were not the subject matter of partition proceedings filed by Sukh Ram before Assistant Collector 1st Grade, who decided the partition proceedings on 5.2.1986. Since defendant by placing on record Ext. AX has duly proved on record that he is owner-in-possession of the suit land, plaintiff has no right, title or interest over the suit land. Revenue entries specially Ext. PW-1/D, showing plaintiff as owner in possession have been already declared to be illegal, null and void by the Court vide judgment and decree dated 19.7.2001 in Civil Suit No. 455/99/96. 15. Consequently, in view of detailed discussion, especially specific finding returned by the first appellate Court that document Ext. AX, duly stands proved on record that defendants are exclusive owners-in-possession of the suit land and plaintiff has no right, title or interest over the suit land. 16. As far as question of estoppel against defendants is concerned, same is not attracted in the case of defendants, who admittedly during the pendency of first appeal filed application under Order 41 Rule 27 CPC, placing therein copy of judgment Ext. AX. At this stage, it may be pointed out that the plaintiff laid no challenge to order passed by first appellate Court on the application under Order 41 Rule 27 CPC moved by defendant. Moreover, this Court on the specific plea having been raised by the counsel for the plaintiff that no opportunity to rebut document Ext. AX was afforded by the court below, remanded the case back to the first appellate Court with the direction to examine document, Ext. Moreover, this Court on the specific plea having been raised by the counsel for the plaintiff that no opportunity to rebut document Ext. AX was afforded by the court below, remanded the case back to the first appellate Court with the direction to examine document, Ext. AX afresh after affording due opportunity to the parties. Perusal of record suggests that despite there being sufficient opportunity by the first appellate Court, plaintiff failed to controvert correctness of the Ext. AX, as such there is no force in this contention. 17. Substantial questions of law are answered accordingly. 18. Consequently, in view of aforesaid discussion, this Court sees no reason to interfere with the well reasoned judgments and decrees passed by both the Courts below. Accordingly, there is no merit in the appeal and same is dismissed. Pending applications are also disposed of. Interim directions, if any, are also vacated.