Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1286 (HP)

Gian Chand v. Kailasho Devi

2017-11-23

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The plaintiffs' suit for rendition of a decree of permanent prohibitory injunction restraining from causing any interference over the suit land, was, under concurrent pronouncements recorded thereon by both the learned Courts below, hence, dismissed. 2. Briefly stated the facts of the case are that the plaintiff filed a suit for permanent prohibitory injunction against the defendants claiming that the land comprised in Khata No. 3, Khatauni No.4, Khasra No.711, measuring 9 marlas, Khata No.10, Khatauni No.8, khasra No.713, measuring 9 marlas, Khata No.10, Khatauni No.11, Khasra No.712, measuring 16 marlas, total measuring 3 K-5M, as per jamabandi for the year 1985-86, situated in Tika Lag, Mauza Mewa, Tehsil Bhoranj and District Hamirpur, H.P., is shown to be in possession of the plaintiffs and the defendants No.13 to 15. The plaintiffs and defendants No.13 to 15 were tenants over the suit land and were cultivating the same. They are in possession and lateron proprietary rights were confirmed upon the plaintiffs and defendants No. 13 to 15, in respect of the suit land along with other land of which they were tenants under the defendants No.1 to 12, except the share of widow Jai Devi, defendant No.6. Defendant No.1 to 12 are threatening to take forcible possession of the suit land by showing that there was a compromise between Jagdish Chand and defendants No.1 to 12 on 23.2.1988. The plaintiffs and defendants no.13, 15 and 16 have never entered into an agreement nor they authorised any body to enter in to such agreement and the said agreement/compromise is illegal, null and void. The alleged compromise/agreement in Civil Suit No.137/1 of 1986, titled as Mangatu vs. Jai Devi is illegal, null and void. 3. The defendants contested the suit, however, they have failed to file written statement to the plaint despite several opportunities standing granted to them, hence, the learned trial Court under an order recorded on 17.12.1996, closed their right to file written statement to the plaint. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction? OPP. 2. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction? OPP. 2. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom by the plaintiffs/appellants before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 6. Now the plaintiffs/appellants herein, have instituted the instant Regular Second Appeal before this Court wherein they assail the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. The instant appeal stand admitted, on 4.9.2017, on the hereinafter extracted substantial questions of law:- 1. Whether in the facts and circumstances of the case, the compromise judgment and decree Exts. P-13 and P-14 were liable to be set aside being not lawful when admittedly, at the time of alleged relinquishment, the plaintiffs/appellants were tenants and defendants No.13, 15 and 16 were tenants in possession of the property and relinquishment could not be made in favour of the landlord? 2. Whether the suit of the plaintiff was within limitation when admittedly, the appellants were in possession of the property and suit was brought when cloud was cast on the title by the defendants seeking to interfere with their possession? 3. Whether the findings recorded are perverse based on misreading of documents, judgment and decree Exts. P13 and P-14 and the statement of the plaintiff and the inferences drawn are not warranted on the material on record? Substantial questions of Law No.1 to 3. 7. Previous suit bearing C.S. No. 137 of 1986, was on anvil, of the statements, of the contesting parties hence decreed. The judgment pronounced by the learned Senior Sub Judge, Hamirpur upon Civil Suit No. 137-I/1986 bears Ext. P-13, decree rendered in pursuance thereto is borne in Ex. P-14. The suit land embodied, in the previous suit, is, uncontrovertedly congruous vis-a-vis the suit land in the extant suit. In the previous suit, one of the co-plaintiff herein, namely, Roshan Lal was arrayed as co-defendant No.12. Prem Dass and Gain Chand, respectively arrayed as co-plaintiffs No. 2 and 1, in the extant suit, were, also arrayed therein as co-defendants No.13 and 14. In the previous suit, one of the co-plaintiff herein, namely, Roshan Lal was arrayed as co-defendant No.12. Prem Dass and Gain Chand, respectively arrayed as co-plaintiffs No. 2 and 1, in the extant suit, were, also arrayed therein as co-defendants No.13 and 14. Hence, the conclusive verdicts recorded, in the previous suit, borne in Ex. P-13 and Ex. P-14 are enforceable besides binding upon them. Since Mangatu was arrayed in the previous suit as co-plaintiff No.1 along with one Jagdish Chand, arrayed herein as co-plaintiff No.2, hence, with hereat co-plaintiffs No. 4 to 8, deriving an interest in the extant suit, purportedly through Mangatu, thereupon, they are bound, by the conclusive rendition recorded in Ex.P-13 and in Ex.P-14. One Purkha, co-plaintiff No.9 herein, was, arrayed in the previous suit as co-defendant No.10, whereas, one Bhura, codefendant No.15 in the extant suit, was, arrayed in the previous suit as co-defendant No.9, thereupon, the affinities occurring inter se the contesting parties in the previous suit vis-a-vis the extant suit, render the previous renditions to be binding besides enforceable vis-a-vis them. Nanak Chand and Nikka, who are respectively arrayed as co-defendants No.12 and 13 in the extant suit, were, respectively arrayed in the previous suit as co-defendants No.7 and 11, hence, they are also bound by the previously recorded conclusive verdict borne in Ex.P-13 and Ex.P14. Onkar Chand and Om Sagar, respectively arrayed as co-defendants No.4 and 5 in the extant suit, were respectively arrayed in the previous suit, as, co-defendants No. 4 and 5, hence, they are also bound by the conclusive verdict recorded in previous suit, borne in Ex. P-13 and P-14. Moreover with Biasan Devi, Rohit Kumar, Vikas, Amriti and Taran, being respectively arrayed hereat as co-defendants Nos. 9(a), 9(b), 9(c) and co-defendants No.10 and 11, AND claim interests in the extant suit khasra numbers, in the capacity of theirs, respectively being the widow, sons and daughters of deceased Sarwan Kumar, who was arrayed in the previous suit as defendant No.3, hence render themselves to be bound by the judgment and decree recorded in the previous suit. 9(a), 9(b), 9(c) and co-defendants No.10 and 11, AND claim interests in the extant suit khasra numbers, in the capacity of theirs, respectively being the widow, sons and daughters of deceased Sarwan Kumar, who was arrayed in the previous suit as defendant No.3, hence render themselves to be bound by the judgment and decree recorded in the previous suit. Similarly, Satya Devi, Santosh, daughters of Mauzi Ram only arrayed hereat, respectively as co-defendants No. 2 and 3, as also, Thakur Dass arrayed hereat as co-defendant No.7, like wise Kailsho Devi, who stood impleaded as co-defendant No.1 in the extant suit, AND was arrayed in the previous suit as co-defendant No.6, besides Jai Devi, arrayed as co defendant No.6 in the extant suit, was arrayed as defendant No.1 in the earlier suit. Since, the aforesaid, claim an interest in the extant suit khasra numbers, in the capacity of theirs being respectively the daughters of Mouzi Ram as also widow and son of Brahmu, besides when the interest of the aforesaid, in the previous litigation, stood respectively either personally represented or through their respective apposite predecessors-in-interest, hence they are also bound by the previously recorded verdicts borne in Ex.P-13 and P-14. Consequently, with, in the afore referred manner analogity occurring inter se the suit khasra numbers borne in the extant suit vis-a-vis the previous suit, as also with, visible congruity occurring inter se the contesting parties hereat vis-a-vis the contesting parties in the previous suit, (i) thereupon, hence the judgment and decree pronounced in the previous suit bearing Civil Suit No. 136-I/1986, is inter se binding upon the alike contesting parties hereat vis-a-vis alike contesting parties therein besides is binding upon the respective successors-in-interest of litigants in the previous suit, latter whereof's interest vis-a-vis the suit property herein bearing similarity vis-a-vis the suit property therein, stood earlier represented by their respective predecessors-in-interest, hence the previous judgment and decree, is rendered enforceable upon all the litigants hereat. 8. 8. With conclusivity being fastened vis-a-vis the previous renditions, thereupon, the plaintiffs' espousal, in the extant suit, (I) of, no lawful valid agreement being entered vis-a-vis the suit property borne therein nor the previous litigants besides their respective predecessors-in- interest holding the apposite authorizations, for the relevant purpose, (ii) thereupon, hence the previous renditions, being vitiated cannot be accepted, for reversing the binding and conclusive verdicts, rendered upon the previous suit bearing C.S. No. 136-1/1986, verdicts whereof are comprised in Ex.P-13 and in Ex.P-14. Preeminently, also the aforesaid plea, was, to be firmly rested upon firm evidentiary material, wherefrom evincings spurred, of, (iii) despite, theirs at the time of institution of the previous suit besides at the stage of its consummation, hence theirs holding an independent valid indefeasible interest in the suit property, (iv) yet the respective predecessors-in-interest of the apposite contestants in the extant suit, willfully abandoning theirs being arrayed as parties in the previous suit, (v) whereupon their interests in the previous suit property, were earlier not properly watched. However, evidence in support of the aforesaid factum remains, not, adduced by the contestants. Consequently, previous renditions embodied in Ex.P-13 and in Ex.P-14, AND as rendered upon the previous suit, wherein, some of the contestants therein are common vis-a-vis the contestants herein, also when visibly some of the contestants herein, were in the previous suit, represented by their respective predecessors-in-interest, latter whereof were therein either arrayed in the array of co-plaintiffs or in the array of co-defendants, (vi) thereupon, the earlier verdicts pronounced upon alike contestants therein vis-a-vis the contestants hereat, also the previous verdicts pronounced upon the predecessors-in-interest of the apposite contestants hereat, letters' interest in the analogous suit property, was, earlier watched by their predecessors-in-interest, (viii) are binding besides enforceable upon all the apposite successors-in-interest AND upon all alike contestants therein vis-a-vis contestants hereat. Preeminence vis-a-vis the aforesaid inference is galvanized from the suit property therein being alike vis-a-vis the suit property hereat. 9. The aforesaid conclusion formed by this Court, though may not render, it, imperative upon the plaintiffs, to also make a specific claim for setting aside the pronouncement, borne in Ex.P-13 and in Ex.P-14. Preeminence vis-a-vis the aforesaid inference is galvanized from the suit property therein being alike vis-a-vis the suit property hereat. 9. The aforesaid conclusion formed by this Court, though may not render, it, imperative upon the plaintiffs, to also make a specific claim for setting aside the pronouncement, borne in Ex.P-13 and in Ex.P-14. (i) Nonetheless, failures, of the plaintiff, to make a challenge vis-a-vis the judgment and decrees recorded in the previous suit, rather theirs making challenge, to the purported compromise, compromise whereof, though, has been referred in the previous suit, yet scribed compromise whereof, remains unadduced on record, (ii) thereupon, any relief in respect of setting aside, of any purported compromise, entered, in the previous suit, would also not beget any further relief from this Court, for quashing and setting aside the previous judgment and decree, respectively borne in Ex. P-13 and Ex.P 14, the latter exhibits remaining unimpugned in the extant suit. Preeminently, also when the snag in pleadings qua the aforesaid fact, would, forbid any according of relief qua it. 10. During the pendency of the instant appeal before this Court, the plaintiffs/appellants herein instituted an application, bearing CMP No. 1061 of 2004, application whereof is cast under the provisions of Order 6, Rule 17 of the CPC, provisions whereof read as under:- “17. Amendment of Pleadings.- the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” Through the aforesaid application, the plaintiffs/appellants herein, concert to cure the effect of all infirmities besides omissions on their part, to, make a challenge upon the judgments and decrees pronounced, in previous suit bearing C.S. No. 136-I/1986, pronouncements whereof are respectively borne in Ex.P- 13 and in Ex.P14. Even, though, the aforesaid amendment, may be necessary, for conclusively putting to rest, the entire gamut of the controversy engaging the parties to the lis besides for removing the apposite snags, (i) yet with the proviso, occurring underneath Order 6, Rule 17 of the CPC casting an interdiction upon Courts of law, against according, of, the apposite leave, to the litigant concerned, concerting to beget amendments in the apposite pleadings, (ii) if evidence comes forth, qua despite exercise of due diligence, the facts, for whose incorporation, in the apposite pleadings, the leave of the Court is sought, (iii) were yet discoverable at the earliest or at the stage contemporaneous vis-a-vis the institution of the suit. Bearing in mind the aforesaid principle of law encapsulated in the proviso appended underneath Order 6, Rule 17 of the CPC, hence, when even, if the aforesaid leave to the plaintiff may be affordable, it being just and essential, for firmly resting the controversy, engaging the parties, nonetheless with (iv) the instant suit standing instituted on 6.11.1991, (v) also during the course of trial thereof, adduction of Ex.P13 and Ex.P14, hence, occurring, at the instance of the plaintiffs; (vi) hence with the plaintiffs, during, the course of trial of the instant suit, before the learned trial Court, hence acquiring knowledge qua renditions, comprised in Ex. P-13 and Ex. P-14, (vii) yet theirs failing, to, at the earliest, seek leave of the Court to make apt amendments in the relief clause of the plaint, especially in consonance therewith, (v) renders the mandate of the statutory interdiction to hence stand attracted against the plaintiffs whereupon, this Court is constrained to decline leave, vis-a-vis the plaintiffs, for theirs begetting the espoused amendments in the plaint. Accordingly, CMP No. 1061 of 2004 is dismissed. 11. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. Accordingly, all the substantial questions of law are answered in favour of the respondents and against the appellants. 12. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. Accordingly, all the substantial questions of law are answered in favour of the respondents and against the appellants. 12. In view of the above discussion, the instant appeal is dismissed and the impugned judgments and decrees rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back.