Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1138 (HP)

Sham Lal v. Shiv Kumar

2017-10-04

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT Chander Bhusan Barowalia, J. - The present regular second appeal has been maintained by the appellants/defendants (hereinafter referred to as "the defendants"), laying challenge to the judgment and decree, dated 06.08.2005, passed by the learned District Judge, Una, District Una, H.P., in Civil Appeal No. 10 of 2003, dismissing the appeal filed by the defendants against the judgment and decree, dated 30.09.2002, passed by the then learned Sub Judge 1st Class, Court No. 1, Una, District Una, H.P. in Civil Suit No. 7-1 of 95, whereby the suit filed by the respondent/plaintiff (hereinafter referred to as "the plaintiff") was decreed. 2. The key facts of the case can tersely be summarised as under: There are two parcels of land, i.e., land comprised in khewat No. 117, khatauni No. 184, khasras No. 714 and 874, measuring 0-28-83 hectares (for the sake of convenience referred to as land ''A'') and land comprised in khewat No. 116 min, khatauni No. 183, khasras No. 718, 719 and 872, measuring 0-39-61 hectares (for the sake of convenience referred to as land ''B''), situate in Up Mohal Pandoga Kyarian, Tehsil and District Una. As per the plaintiff, the land ''B'' is in his exclusive ownership. The plaintiff has further averred that he and Kailash Devi are owners-in-possession of land ''A'' to the extent of half share each. Earlier, the predecessors-in-interest of the defendants were wrongly depicted in the revenue record as non-occupancy tenants over the suit land. As per the plaintiff, in an exhaustive litigation, which went up to the High Court, the claim of the plaintiff was upheld and subsequently he was put in possession over the suit land through execution of decree, which was granted in his favour. The plaintiff has further contended that prior to filing of the suit in the Court of the first instance, the defendants threatened to dispossess him by cutting and removing the trees standing over the suit land. The plaintiff, thus, maintained a suit seeking a decree of permanent prohibitory injunction restraining the defendants from their acts. A decree of possession was also sought, in case the defendants succeed in their acts. 3. The defendants, by way of filing written statement, contested and resisted the suit of the plaintiff. They raised preliminary objections, viz., cause of action and maintainability. On merits, the defendants denied the plaintiff''s claim. A decree of possession was also sought, in case the defendants succeed in their acts. 3. The defendants, by way of filing written statement, contested and resisted the suit of the plaintiff. They raised preliminary objections, viz., cause of action and maintainability. On merits, the defendants denied the plaintiff''s claim. It is averred that Kailash Devi executed an agreement to sell her land ''A'' and she put them (defendants) in possession. It is contended that on a portion of land ''B'' (khasra No. 718) Wattani Devi (defendant No. 4) is in exclusive possession and qua that land a civil suit is pending adjudication in Civil Court, Una. The plaintiff deliberately suppressed all the material facts, thus, they prayed that the suit be dismissed. 4. The learned Trial Court on 17.04.1998 framed the following issues for determination and adjudication: "1. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP 2. Whether the plaintiff has no cause of action to file the present suit? OPD 3. Whether the suit is not maintainable in the present form? OPD. 4. Relief." 5. After deciding issue No. 1 in favour of the plaintiff, issues No. 2 and 3 against the defendants, the suit of the plaintiffs was decreed. Subsequently, the defendants preferred an appeal before the learned Lower Appellate Court, which was dismissed, vide impugned judgment dated 06.08.2005, hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law: 1. Whether both the learned courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them, thereby vitiating the impugned judgments and decrees? 2. Whether in view of the dismissal of application under Order 41, Rule 27 CPC by misreading and mis-appreciating the said provisions, impugned judgments and decrees stand vitiated? 3. Whether suit being without any cause of action, courts below having misread and mis-appreciated this aspect of the matter, thereby vitiating the impugned judgments and decrees as passed by the courts below? 4. Whether part of claim in suit is hit by section 11 of the Code of Civil Procedure and judgments and decrees having been passed without appreciating this aspect of the matter stand vitiated and liable to be set aside?" 6. I have heard the learned Counsel for the appellants and the learned Counsel for the respondent. 7. 4. Whether part of claim in suit is hit by section 11 of the Code of Civil Procedure and judgments and decrees having been passed without appreciating this aspect of the matter stand vitiated and liable to be set aside?" 6. I have heard the learned Counsel for the appellants and the learned Counsel for the respondent. 7. The learned counsel for the appellants has argued that the learned courts below should have allowed the application filed under Order 41, Rule 27 CPC and the dismissal of the same has resulted into injustice. He has further argued that even otherwise also the findings recorded by the learned courts below are against the facts, which have come on record and the same are the result of mis-appreciation and mis-reading of the evidence, so the appeal be allowed by setting aside the judgments and decrees, so passed by the learned courts below. Conversely, the learned counsel for the respondent has argued the learned Trial Court and the learned Lower Appellate Court have held against the appellant and the evidence has been rightly appreciated by the courts below. He has further argued that the stand of the appellants herein is that on a portion of land ''A'' they have been put in possession by Kailash Devi through some agreement, but the original agreement has not seen the light of the day and only photocopy thereof, mark ''A'', has been placed on record. It is argued that the contention of the appellants that the original document, during the pendency of the appeal before the learned Lower Appellate Court, was handed over to their counsel, Shri Harbilas Chandra, is totally misplaced and is not legally tenable. He has argued that application under Order 41, Rule 27 CPC has been rightly dismissed. Lastly, the learned counsel for the respondent has argued that the appeal is without merits and the same be dismissed with costs. 8. In rebuttal, the learned counsel for the appellants has argued that the learned courts below have erred in appreciating the evidence, which has come on record, and application under Order 41, Rule 27 CPC had been wrongly dismissed by ignoring the provisions of law. In these circumstances, the judgments and decrees passed by the learned Courts below may be set aside and the appeal be allowed. 9. In these circumstances, the judgments and decrees passed by the learned Courts below may be set aside and the appeal be allowed. 9. In order to appreciate the rival contentions of the parties, I have gone through the record in detail. 10. To prove the case, plaintiff appeared in the witness-box as PW-1 and he has also examined Shri Satnarayan as PW-2, whereas defendants have examined two witnesses. DW-1, Shri Channan, admitted in his statement that a partition took place between the plaintiff and Kailash Devi, however, DW-2 Shri Bayant Singh, was not aware whether the land is till joint between the plaintiff and Kailash Devi. The defendants remained unable to prove that there was any agreement between Kailash Devi (now dead) and the defendants qua suit land ''B''. At the same point of time the revenue entries are in favour of the plaintiff with regard to the suit land ''A''. The defendants are unable to identify the land on which they are in possession. There is nothing on record which demonstrates that any structure belonging to the defendants is existing on the suit land. In these circumstances, it is difficult to hold that the findings recorded by the learned Courts below are without appreciating the documents which have come on record to its true perspective. The learned Lower Appellate Court, while dismissing the application under Order 41, Rule 27 CPC has specifically held that if the original documents were handed over by the defendants to their counsel, Shri Harbilas Chandra, and it is the Advocate who is responsible for not producing the original agreement to sell before the learned Court below. Had the defendants exercised due diligence and had the original been in their possession, they could have produced it at the appropriate time. Since this document was not produced at the appropriate time, this Court finds no illegality with the order passed by the learned Lower Appellate Court in rejecting application under Order 41, Rule 27 CPC, as the defendants/appellants have failed to show any illegality in not admitting the document by the learned Court below. The defendants have further failed to demonstrate that in spite of due diligence they could not produce the original agreement, so the conclusion arrived at by the learned Lower Appellate Court is correct, therefore, this Court finds that there is no illegality in the order passed by the learned Lower Appellate Court. The defendants have further failed to demonstrate that in spite of due diligence they could not produce the original agreement, so the conclusion arrived at by the learned Lower Appellate Court is correct, therefore, this Court finds that there is no illegality in the order passed by the learned Lower Appellate Court. 11. Precisely, the claim of the defendants is that they are in possession of half portion of suit land ''A'' and this claim is founded by them on agreement, dated 9th December, 1993, however, certainly, the natural result of this agreement could be that there names should have been reflected in the revenue entries, in the column of possession. The record lucidly demonstrates that the defendants did not choose to bring on record such revenue record, which could have clearly reflected that they are in possession over a portion of suit land ''A''. On the other hand, the plaintiff, through oral as well as documentary evidence clearly established that he is owner-in-possession over suit land ''B''. As regards, suit land ''A'', the record also shows that the same is also in his exclusive possession, as a co-owner. Thus, there is ample material on record which shows that defendants have set up a baseless claim of possession and the learned Courts below have rightly rejected the claim of the defendants. Therefore, this Court, even after re-appreciation of the material on record, finds that it can be safely held that the learned Courts below have not committed any illegality in rejecting the claim of the defendants. 12. At the same point of time, this Court also finds that the judgment and decree passed by the learned Courts below are on the basis of the revenue entries existing in favour of the plaintiff and the truthfulness of these entries have not been rebutted, so in these circumstances substantial question No. 1 is answered holding that the learned Courts below have appreciated the provisions of law, pleadings of the parties and the evidence adduced by them to its true perspective. Substantial question of law No. 2 is answered holding that application under Order 41, Rule 27 CPC has been rightly considered and rejected by the learned Lower Appellate Court, as per the provisions of law and no illegality has been committed by the learned Lower Appellate Court. Substantial question of law No. 2 is answered holding that application under Order 41, Rule 27 CPC has been rightly considered and rejected by the learned Lower Appellate Court, as per the provisions of law and no illegality has been committed by the learned Lower Appellate Court. Substantial question of law No. 3 is answered holding that the learned Courts below have not misread and mis-appreciated the evidence, which has come on record, and the judgments and decrees are as per the law. Lastly, substantial question of law No. 4 is answered holding that the suit is not hit by section 11 CPC, thus the judgments and decrees passed by the learned Courts below are the result of proper appreciation of all the aspects of the case to its true perspective and the same cannot be said to be perverse. 13. In view of what has been discussed here in above, the inescapable conclusion is that the appeal sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. 14. Pending application(s), if any, shall also stand(s) disposed of.