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2017 DIGILAW 426 (UTT)

Diwan Singh v. Van Panchayat Gulam Parghar

2017-08-01

LOK PAL SINGH

body2017
JUDGMENT : Lok Pal Singh, J. 1. Present second appeal has been preferred against the judgment and decree dated 14.06.2004, passed by the District Judge, Bageshwar in Civil Appeal no. 4 of 2004, whereby the first appellate court has allowed the appeal of plaintiff/respondent and set aside the judgment and decree dated 14.05.2004 passed by the learned trial court whereby the original suit no. 46 of 1993 filed by the plaintiff/respondent was dismissed. 2. Brief facts of the case are that plaintiff/respondent filed Original Suit no. 43 of 1993, Van Panchayat Gulam Pargarh vs. Diwan Singh and others with the averments that Gulam Pargarh Van Panchayat was constituted by the Commissioner, Kumaon Mandal Nainital and Nain Giri was the president of Van Panchayat Gulam Pargarh. It is contended that the aforesaid Van Panchayat was constituted in the year 1949 and the map of Schedule A is the part of the plaint. In the map, the panchayat land has been shown with red colour. The plaintiff is doing management of van panchayat and in possession of the property in dispute. On 08.08.1993, the defendants demolished the wall of disputed property i.e. compartment no. 8 and on restraining them, they quarreled with the plaintiff, therefore suit for injunction was filed. 3. The suit was contested by defendant nos. 1 to 4. They filed their written statement and contended that in the year 1952, van panchayat was constituted by the Commissioner, Kumaon Mandal. The suit was filed to describe the property in dispute on the basis of the map of schedule A and the location of the disputed property has been mentioned in it. It is also contended that averments of the plaint are vague. It is also contended that there is boundary dispute of two villages and suit cannot be maintained to ascertain the boundaries of two villages in regard to van panchayat land. 4. On the pleadings of the parties, following issues were framed:- (i) Whether Schedule A of the plaint shown in compartment no. 8 with red ink (line wise) is the van panchayat land of plaintiff? (ii) Whether the defendants are damaging the plaintiff’s land by doing illegal interference? (iii) Whether the plaint is vague. If so its effect? (iv) Whether the present suit is in regard to the demarcation of the land of village panchayat, therefore civil court has no jurisdiction to hear and decide the suit? (ii) Whether the defendants are damaging the plaintiff’s land by doing illegal interference? (iii) Whether the plaint is vague. If so its effect? (iv) Whether the present suit is in regard to the demarcation of the land of village panchayat, therefore civil court has no jurisdiction to hear and decide the suit? (v) Whether State of Uttar Pradesh is necessary party in the suit? (vi) Whether defendants are entitled for damages of suit. If so its effect? (vii) To what relief plaintiff is entitled for? 5. On behalf of the plaintiff Nain Giri, Sarpanch was examined as P.W.1, Bhawan Singh as P.W.2, Padam Singh as P.W.3 and D. R. Arya (Amin Commissioner) as P.W.4 (appointed by the court with the consent of both the parties). 6. The defendants have adduced oral evidence and examined witness Bahadur Singh as D.W.1 and Diwan Singh as D.W.2. Both the parties have adduced documentary evidence, copy of map, khasra and khatoni. 7. The learned trial court recorded its finding on issue nos. 1, 2, 3 and 4 against the plaintiff and dismissed the suit of the plaintiff/respondent by judgment and decree dated 14.05.2004. Feeling aggrieved by the judgment and decree dated 14.05.2004, civil appeal no. 4 of 2004 Van Panchayat Gulampargarh vs. Diwan Singh was filed. 8. The first appellate court by its judgment and decree dated 14.06.2004 allowed the appeal and decreed the suit, directed the defendants not to interfere in the peaceful possession of the plaintiff. 9. Feeling aggrieved by the judgment and decree dated 14.06.2004, this second appeal is preferred. 10. The second appeal was admitted on the following substantial questions of law:- (i) Whether in a suit for permanent injunction it is necessary for the plaintiff to plead and prove the fact about the disputed land and the place/site of causing damage to the disputed land of the plaintiff, and the time of causing such damage and to pin point in the plaint map the particular place where damage is caused? And whether in absence of such specific pleadings in the plaint and in absence of proper description of the disputed land and the particular place of causing damage to the disputed land in plaint map, the suit of the plaintiff for permanent injunction was liable to be dismissed? (iv) Whether the findings recorded by the first appellate court are perverse on issue no. (iv) Whether the findings recorded by the first appellate court are perverse on issue no. 1 whereby it observed that the entire land of compartment no. 8 is of Forest Panchayat Gulam Pargarh despite report of the Advocate Commissioner and Amin Commissioner to the contrary and despite the statements of the Forest Panchayat Inspector and Patwari of the area and the statements of plaintiff’s witness P.W.1 Nain Giri, the surpunch of the village Gulam Pargarh, to the effect that some portion of land of forest panchayat Bhayun is shown within the compartment no. 8 of forest panchayat gulam pargarh? (v) Whether the trial court was justified to observe in view of various reports and the statements of witnesses, that before instituting the suit for permanent injunction, a suit for demarcation ought to have been instituted by the plaintiff to ascertain the extent, limit and boundary of the Forest Panchayat Gulam Pargarh and whether the findings of the first appellate court on this point being contrary to the evidence are perverse? (viii) Whether the first appellate court in the garb of the suit for permanent injunction has exceeded its jurisdiction by issuing a decree of declaration in favour of the plaintiff to the effect that some land of compartment no. 8 was wrongly shown during Revenue record settlement within the limit of Forest Panchayat Bhayun, which the plaintiff did not seek in the suit for permanent injunction? 11. Heard learned counsel for the parties. 12. Mr. C.D. Bahuguna, Senior Counsel appearing for the appellant urged that the first appellate court has committed illegality in passing the impugned judgment and decree and pointed out that the first appellate court infact has advocated for the plaintiff/respondents and without reversing the finding recorded by the trial court, recorded its own finding, which is not permissible in law. He further urged that the first appellate court has not recorded any finding on the issues so framed by the trial court. Neither the first appellate court has recorded its finding on the issues framed, nor any point of determination was framed by the first appellate court for adjudication of the dispute, therefore, substantial questions of law framed in the memo of the appeal be decided in favour of the defendant/appellant. 13. Per contra, Mr. Neither the first appellate court has recorded its finding on the issues framed, nor any point of determination was framed by the first appellate court for adjudication of the dispute, therefore, substantial questions of law framed in the memo of the appeal be decided in favour of the defendant/appellant. 13. Per contra, Mr. B.C. Pande, Senior counsel appearing for the plaintiff/respondent submitted that the substantial question of law so framed in the memo of the appeal are not infact the substantial questions of law. The second appeal was admitted by this Court infact on the substantial question of law nos. 1 4, 5 and 8 in the memo of the appeal, which do not arises in this appeal. Therefore, the second appeal is liable to be dismissed. 14. I am convinced with the submission of the learned senior counsel for the plaintiff. 15. In view of this Court substantial questions of law narrated/framed at point no. 1, 4, 5 and 8 in the memo of the appeal are not the substantial questions of law arises in this appeal. 16. Upon hearing the learned senior counsel for the parties and after perusing the impugned judgment, in my view, two substantial questions of law are involved in the appeal. With the consent of the learned senior counsel for the parties following substantial questions of law are being formulated:- (i) Whether the first appellate court erred in law in deciding the appeal without reversing/reverting findings of the trial court on the issues and in deciding the appeal without giving its findings on the issues or formulating any point of determination? (ii) Whether the trial court erred in law in non-framing the proper issues on the basis of the pleadings and relevant law more particularly when the suit was filed against defendant no. 4 in representative capacity without adher to the mandatory provisions of Order 1 Rule 8 of C.P.C.? 17. Learned senior counsel for the parties advanced their submission on the substantial questions of law framed today. 18. Answer to substantial question of law no. (i) Mr. C.D. Bahuguna, senior counsel appearing for the appellant urged that the appellate court has not recorded any findings on the issues framed by the trial court and without reverting findings of the trial court has allowed the appeal in a cryptic manner and without appreciation of the evidence available on the record. (i) Mr. C.D. Bahuguna, senior counsel appearing for the appellant urged that the appellate court has not recorded any findings on the issues framed by the trial court and without reverting findings of the trial court has allowed the appeal in a cryptic manner and without appreciation of the evidence available on the record. So far as contention of the learned senior counsel for the appellant is concerned, on perusal of the judgment passed by the first appellate court I find that the first appellate court has not appreciated the evidence available on record and has recorded its findings on presumption and assumption. First appellate court which is the last court on facts and law, has failed to discharge its legal obligation as mandated under provision of Order 41 Rule 31 of C.P.C. The Hon’ble Apex Court in the case of Santosh Hazari vs. Purushottam Tiwari reported in (2001) 3 SCC 179 , has held in para-15 as follows: “15. ….The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it.” Substantial question of law no. (i) is answered in favour of the defendant/appellant. 19. Answer to substantial question of law no. (ii) Substantial question of law no. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it.” Substantial question of law no. (i) is answered in favour of the defendant/appellant. 19. Answer to substantial question of law no. (ii) Substantial question of law no. (ii) has been framed on the submission advanced on behalf of the plaintiff/respondents. Senior Counsel for the plaintiff/respondent submitted that the trial court has not framed proper issues on the respective pleadings of the parties. He urged that U.P. Panchayat Forest Rules 1972 were applicable at the time when van pachyat was created, and the land of compartment no. 8 which is property in dispute was within the area of village Gulam Pargarh and the Commissioner Kumaon Mandal has approved the van panchayat. Senior counsel of both the parties have urged that the first appellate court erred in law in allowing the appeal as the appellate court has not recorded any findings on the issues framed by the trial court and without reverting findings of the trial court allowed the appeal, therefore, judgment of first appellate court is vitiated. 20. From the perusal of the plaint as well as written statement it is abundantly clear that trial court has not framed proper issues. The learned trial court has failed to discharge its legal obligation in non framing the proper issues. It would be just and proper to remand the matter to the learned trial court directing the trial court to give liberty to the parties to amend their pleadings. Since suit has been filed against defendant no. 4 in representing capacity and compliance of Order 1 Rule 8 of C.P.C. has not been made out, the judgment of the trial court is also vitiated on account of non compliance of Order 1 Rule 8 of C.P.C. Substantial question of law no. (ii) answered accordingly. 21. Learned senior counsel for the respondent submits that defect of non compliance of provision of Order 1 Rule 8 of C.P.C. is curable; therefore, the suit of plaintiff/ respondent cannot be thrown away at this stage, without giving an opportunity to the plaintiff/respondent to cure the defect as indicated above. (ii) answered accordingly. 21. Learned senior counsel for the respondent submits that defect of non compliance of provision of Order 1 Rule 8 of C.P.C. is curable; therefore, the suit of plaintiff/ respondent cannot be thrown away at this stage, without giving an opportunity to the plaintiff/respondent to cure the defect as indicated above. Since, the defect of non compliance of provision of Order 1 Rule 8 of C.P.C. is curable, and first time this issue crop up in second appeal, though the plea of non compliance of Order 1 Rule 8 C.P.C. was not taken up by the defendant, and issue to this effect was not framed by the courts below; therefore, the additional issue which is a legal issue is being framed by this Court. Whether the suit is barred by the provisions of Order 1 Rule 8 of the C.P.C.? 22. The findings recorded by the first appellate court as well as the trial court on the issues are hereby set aside. The matter is remanded back to the trial court to frame an issue in regard to the non compliance of Order 1 Rule 8 of C.P.C. and afford an opportunity to the plaintiff/respondent to cure the defect as indicated above and in case, the plaintiff/respondent removed the defect and make compliance of Order 1 Rule 8 of C.P.C., the suit shall be proceeded in accordance with law and trial court shall proceed the case denovo after affording opportunity to the parties. 22. Second appeal is allowed. Impugned Judgment and decree dated 14.06.2004, passed by the District Judge, Bageshwar in Civil Appeal no. 4 of 2004 as well as the judgment and decree dated 14.5.2004 passed by Civil Judge (Jr. Div.), Bageshwar, in Original Suit No.43 of 1993, is hereby set aside. The matter is remanded back to the trial court. The trial court will decide the suit on the observations made by this Court in accordance with law. Parties shall appear before the trial court on 06.09.2017. The trial court shall make endeavour to decide the suit expeditiously, considering the fact that lis is pending since long time. 23. Costs easy.