Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 431 (HP)

Kartar Singh v. Satpal Singh

2017-04-28

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 27.12.2007, passed by learned Additional District Judge, Una, District Una, H.P. in Civil Appeal No. 52 of 2002, affirming the judgment and decree dated 21.3.2002, passed by learned Sub Judge, 1st Class, Court No. II, Amb, District Una, H.P. in Civil Suit No. 34/1996, whereby suit filed by the plaintiff for declaration with permanent injunction came to be decreed. 2. Briefly stated facts, as emerged from the record are that the plaintiff namely Raghunath Singh filed a suit for declaration with permanent injunction, praying therein for decree of declaration to the effect that land measuring 0-17-73 hects, comprised of khewat No. 108, khatauni No. 232, khasra No. 2127, situated in village Bebehar, Tehsil Amb, District Una, H.P. (hereinafter referred to as the suit land) is jointly owned by the plaintiff and defendant with exclusive possession of the plaintiff and entry showing suit land under mortgage with defendant in the column of ownership is wrong, illegal, null and void. Plaintiff in the plaint also sought relief of permanent injunction restraining the defendant from interfering in any manner in the exclusive possession of plaintiff till partition of suit land. Plaintiff averred in the plaint that land measuring 4-15 kanals, comprised in khasra No. 1196 as entered in the jamabandi for the year, 1960-61 was owned and possessed by Sh. Haria etc. but in possession of Sh. Baldev Singh, who sold the same to the predecessors of plaintiff and defendant alongwith other land. 3. As per plaintiff, consolidation took place in the village and while preparing Missal Haquiat Ishetemal, aforesaid khasra No. 1196 was converted into khasra No. 1200 and land was shown under mortgage showing father of the plaintiff Sudama as mortgagor and Saun father of the defendant as mortgagee. Plaintiff further claimed that suit land was never mortgaged by the father of the plaintiff with the father of defendant and entry to the contrary is wrong and illegal and at the back of the plaintiff and his father and as such, required to be rectified in accordance with law. Plaintiff further claimed that suit land was never mortgaged by the father of the plaintiff with the father of defendant and entry to the contrary is wrong and illegal and at the back of the plaintiff and his father and as such, required to be rectified in accordance with law. Plaintiff further claimed that during the settlement, area was converted into meters and new khasra number was carved out and suit land was found in possession of plaintiff and as such, his name was reflected in the column of possession. On the basis of wrong entries made in the revenue record in favour of the defendant, defendant started threatenening to interfere with the peaceful possession of the plaintiff. In view of the aforesaid background, plaintiff filed suit against the defendant. 4. Defendants by way of written statement resisted/refuted the claim of the plaintiff by taking objections with regard to maintainability, estoppel, limitation and valuation etc. Defendants claimed that before consolidation father of the plaintiff was in need of some money and as such, he mortgaged his share in the suit land for an amount of Rs. 50/- and accordingly same was entered in the revenue paper in the presence of father of plaintiff. Defendant further claimed that since then father of defendant and thereafter he is coming in possession of the suit land. Apart from above, defendant also claimed that he has become owner qua the share of the plaintiff with the afflux of time. Defendant further claimed that in case he fails to prove his possession as mortgagee then otherwise, he is in exclusive Hissadari possession of the suit land and as such, he prayed for dismissal of the suit having been filed by the plaintiff. 5. By way of replication, plaintiff while denying the allegations/averments made in the written statement, reaffirmed and reasserted the stand taken in the plaint. 6. Learned trial Court on the basis of the pleadings of the parties, framed the following issues:- 1. Whether the suit land is jointly owned by the plaintiff and defendant and the same is in exclusive possession of plaintiff as alleged? OPP 2. Whether the entry of mortgaged in respect of suit land with defendant is wrong, illegal, null and void as alleged? OPP 3. Whether the plaintiff is entitled to the relief of permanent injunction as alleged? OPP 4. Whether the suit is not maintainable? OPD 5. OPP 2. Whether the entry of mortgaged in respect of suit land with defendant is wrong, illegal, null and void as alleged? OPP 3. Whether the plaintiff is entitled to the relief of permanent injunction as alleged? OPP 4. Whether the suit is not maintainable? OPD 5. Whether the plaintiff is estopped by his act and conduct to file this suit? OPD 6. Whether the suit is not properly valued? OPD 7. Relief:- 7. Subsequently, learned trial Court on the basis of the material adduced on record by the respective parties, decreed the suit of the plaintiff vide judgment and decree dated 21.3.2002, whereby suit land was held to be jointly owned by the plaintiff and defendant with exclusive possession of the plaintiff. The learned trial Court also declared the entry of mortgage made in favour of the defendant in the revenue record as wrong, null and void. 8. Being, aggrieved and dissatisfied with the judgment and decree dated 21.3.2002, passed by the learned Sub Judge, 1st Class Court No. 2, Amb, District Una, H.P. appellant/ defendant preferred an appeal under Section 96 CPC in the Court of learned Additional District Judge, Una, which came to be registered as Civil Appeal No. 52 of 2002. However, fact remains that during the pendency of the appeal appellant/defendant moved an application under Order 6 Rule 17 read with Section 151 C.P.C. for the amendment of pleadings in the grounds of appeal. Learned first appellate Court vide order dated 18th October, 2005 dismissed the said application. Thereafter, learned first appellate Court on 3.11.2005, accepted the appeal and remanded back the case to the learned trial Court after framing of following additional issues:- 6A. Whether the suit land has been orally mortgaged by the predecessor-in-interest of the plaintiff in favour of the predecessor-in-interest of the defendant and the entries in the revenue record showing the predecessor-in-interest of the plaintiff as mortgagor and the predecessor-in-interest of the defendant as mortgagee are correct and legal and binding upon the parties? OPP 6B. If issue No. 6A is proved whether the defendants have become owners of the suit land by afflux of time as alleged? OPD 6C. Whether the suit of the plaintiff is within limitation? OPP 9. OPP 6B. If issue No. 6A is proved whether the defendants have become owners of the suit land by afflux of time as alleged? OPD 6C. Whether the suit of the plaintiff is within limitation? OPP 9. Plaintiff, being aggrieved and dissatisfied with the judgment and decree, dated 3.11.2005, passed by the learned first appellate Court, preferred an appeal bearing FAO No. 505 of 2005 before this Court. This Court vide judgment dated 25th May, 2006, set-aside the judgment dated 3.11.2005, passed by the learned lower appellate court and remanded back the matter to it for deciding the same in accordance with law. 10. It may be noticed that this Court while allowing the aforesaid appeal (FAO No. 505 of 2005) preferred by the plaintiff, set-aside the impugned judgment of learned lower appellate Court and remanded back the matter to it for deciding the same in accordance with law. It may also be noticed that after aforesaid remand order passed by this Court in FAO No. 505/2005, appellant/defendant moved an application under Order 41 Rule 27 read with Section 151 CPC for leading additional evidence, which was allowed without there being any objection from the plaintiff. Thereafter, learned Additional District Judge, vide judgment and decree dated 27.12.2007, dismissed the appeal having been preferred by the appellant/defendant, as a result of which, judgment and decree dated 21.3.200, passed by the learned trial court came to be upheld. In the aforesaid background, appellant/ defendant approached this court by way of instant proceedings, praying therein for quashing and setting aside the impugned judgment and decree passed by the learned courts below. 11. This Court vide order dated 16.7.2008, admitted the instant Regular Second Appeal, on the following substantial questions of law:- 1. Whether the Civil suit is maintainable against the allotment of the land during the consolidation proceedings? 2. Whether the civil suit after 30 years of the preparation of the Missal Hakiat Consolidation is maintainable? 3. Whether the statement/alleged admission got erroneously by the appellant against the law is binding on the appellant or not? 4. Whether the Civil Suit filed by the respondent should have been decreed in view of the allegations made by the respondent admitting the correctness of the consolidation proceedings and allotment of land? 12. Ms. 3. Whether the statement/alleged admission got erroneously by the appellant against the law is binding on the appellant or not? 4. Whether the Civil Suit filed by the respondent should have been decreed in view of the allegations made by the respondent admitting the correctness of the consolidation proceedings and allotment of land? 12. Ms. Megha Gautam, learned counsel representing the appellant, vehemently argued that the impugned judgments passed by the Courts below are not based upon the correct appreciation of the evidence adduced on record by the respective parties and as such, same deserve to be quashed and set-aside. While referring to the impugned judgments passed by the learned courts below, Ms. Gautam, strenuously argued that bare perusal of the same suggest that learned courts below have miserably failed to appreciate the evidence in its right perspective, as a result of which, erroneous findings has come on record to the detriment of the appellant/defendant, who successfully proved on record by leading cogent and convincing evidence that father of plaintiff had mortgaged his share in favour of the defendant and as such, there was no occasion, whatsoever, for the learned trial court to decree the suit filed by the plaintiff. Ms. Gautam, further contended that both the courts below wrongly placed reliance on the so called admission, if any, made by the defendant during the proceedings of the trial, especially in view of the overwhelming evidence adduced on record by the defendant during the pendency of the appeal. She specifically invited the attention of this Court to the jamabandi for the year 1960-61 Ex.A-1, copy of Khatauni Istemal Ex.A-2, copy Naksha Hakdarbar Ex.A-3, copy of Register Ghathbar Ex.A- 4 and copy of Register Karbahi Istemal Ex.A-5. 13. Ms. Gautam, while concluding her arguments stated that though there is statement on behalf of the defendant that he is entitled to ½ share in the suit land but aforesaid documentary evidence adduced on record clearly proves on record that defendant became owner of remaining ½ share of suit land on account of mortgage made by plaintiff qua his share in the suit land. In the aforesaid background, she prayed that her appeal may be allowed after setting aside the impugned judgments and decree passed by the learned courts below. 14. Mr. Anup Rattan, learned counsel representing the respondents/defendants, supported the impugned judgments and decrees passed by both the Courts below. In the aforesaid background, she prayed that her appeal may be allowed after setting aside the impugned judgments and decree passed by the learned courts below. 14. Mr. Anup Rattan, learned counsel representing the respondents/defendants, supported the impugned judgments and decrees passed by both the Courts below. While inviting the attention of this Court to the impugned judgments, Mr. Rattan, strenuously argued that there is no illegality and infirmity in the impugned judgments passed by the learned Courts below and as such, same deserves to be upheld. While refuting the aforesaid contentions having been made by the learned counsel for the appellant/defendant, Mr. Rattan, contended that bare perusal of the statement having been made by the appellant/defendant before the learned trial Court, wherein he stated that he has ½ share in the suit land and he has no objection if the suit of the plaintiff is decreed, suggest that learned court below rightly decreed the suit having been filed by the plaintiff. He also invited the attention of this Court to the judgment passed by this Court in FAO No. 505 of 2005 filed by the plaintiff against the judgment/remand order dated 3.11.2005, passed by the learned District Judge, Una, to demonstrate that it was specifically held by this court that once defendant had categorically admitted plaintiff to be owner of ½ share in the land and he had no objection if the suit is decreed qua this half share, there was no occasion for lower appellate court to remand the case back to trial court after framing additional issues. 15. Mr. Rattan, learned counsel representing the respondent further contended that once there is specific finding qua the admission having been made by the appellant/defendant in the judgment passed by this Court in FAO No. 505 of 2005, there is no occasion, whatsoever, for the learned counsel for the appellant/ defendant to raise this issue once again in the present proceedings. Otherwise also, it is well stated that when admission is made, same cannot be allowed to be withdrawn unless and until same is shown to be erroneous. In this regard, he placed reliance upon the judgment passed by the Hon’ble Apex Court in Payal Vision Limited vs. Radhika Choudhary, (2012) 11 SCC 405 . Mr. Otherwise also, it is well stated that when admission is made, same cannot be allowed to be withdrawn unless and until same is shown to be erroneous. In this regard, he placed reliance upon the judgment passed by the Hon’ble Apex Court in Payal Vision Limited vs. Radhika Choudhary, (2012) 11 SCC 405 . Mr. Rattan, further contended that bare reading of the statement made by the defendant clearly suggests that there is clear cut admission on the part of the defendant and by no stretch of imagination, it could be termed to be made by mistake as claimed by the learned counsel for the appellant/defendant. While concluding his arguments Mr. Anup Rattan, further contended that no plea, whatsoever, was taken by the appellant/defendant with regard to delay, if any, in maintaining the suit filed by the plaintiff and as such same cannot be allowed to be raised at this stage. Mr. Rattan, further contended that issues, which were framed by the learned first appellate court while remanding the case back had no relevance once remand order passed by the learned trial Court was set-aside by this Court and as such, no plea at this stage with regard limitation can be raised by the appellant/defendant. Mr. Rattan, while praying for dismissal of the appeal, contended that there is no scope of interference of this Court, especially in view of the concurrent findings of facts and law recorded by the courts below. In this regard, to substantiate his aforesaid plea, she placed reliance upon the judgment passed by the Hon’ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264 . 16. I have heard learned counsel for the parties and have gone through the record of the case. 17. After having carefully perused the evidence adduced on record by the respective parties as well as submissions having been made by the learned counsel representing the parties, especially judgment dated 25th May, 2006 passed by this Court in FAO No. 505 of 2005, this Court sees no requirement for exploring answers, if any, to the substantial questions of law at this stage. Otherwise also, the evidence led on record by the respective parties, nowhere suggest that there was issue, if any, with regard to maintainability of suit on account of limitation as well as allotment of land during the consolidation proceedings. 18. Otherwise also, the evidence led on record by the respective parties, nowhere suggest that there was issue, if any, with regard to maintainability of suit on account of limitation as well as allotment of land during the consolidation proceedings. 18. True, it is that learned first appellate Court while remanding the case back to the learned trial Court vide its judgment dated 3.11.2005 had framed additional issues, wherein issue with regard to limitation was also framed but this Court is in agreement with the arguments having been made by the learned counsel for the respondents that aforesaid judgment was set-aside by this Court in FAO No. 505 of 2005 and as such, learned first appellate court was left with no option but to have examined the matter in the light of the issues already framed by the learned trial court during the trial of the case. This court also finds from the record that no specific issue, if any, was framed with regard to the limitation, otherwise also, written statement filed by the defendant suggest that plea of limitation was not taken seriously, rather very vague statement was made that suit is time barred. Similarly, this Court was unable to find anything in the pleadings suggestive of the fact that there was serious challenge to the suit having been filed by the plaintiff on account of maintainability as well as limitation. 19. Leaving everything aside, this Court after having carefully examined the statement of defendant sees no reason to go further in the matter, wherein he has categorically admitted that plaintiff is owner in possession of the ½ share of the suit land and he is only interested in his share, which comes to half. Hence, this Court sees no illegally and infirmity in the findings returned by the learned trial Court, which was further upheld by the learned first appellate Court. Moreover, findings with regard to admission made by the defendant, returned by the learned trial court came to be upheld by this Court in FAO No. 505 of 2005, wherein this Court categorically concluded that “however while appearing in the witness box, the said defendant had clearly admitted that the plaintiff had half share in the land and he had no objection if the suit is decreed qua this half share and he only claimed to be the owner of half share. This aspect of the matter has not at all considered by the lower appellate court.” This Court while taking note of aforesaid discrepancy further proceeded to hold that the learned trial Court had decreed the suit basically on the admission of the defendant, which fact has not been at all recorded by the learned lower appellate Court, whether this admission could have been withdrawn or could have been permitted to be withdrawn which the lower appellate court should decide. But most importantly, this court in the FAO No. 505 of 2005 held that till the admission stands, the judgment of the learned trial Court cannot be said to be incorrect. 20. It is pertinent to take note at this stage that this Court while setting aside the remand order passed by the learned first appellate court held that defendant would be at liberty to argue that the admission was wrongly made by him but it is for the learned lower appellate court to decide whether the defendant can be permitted to get out of his admission or to withdraw the same. Accordingly, learned first appellate court on the basis of the material adduced on record concluded that defendant cannot be allowed to withdraw his admission because admittedly there is nothing on record suggestive of the fact that he made this statement inadvertently, rather appellant/defendant by way of placing evidence on record in the shape of documentary evidence made an attempt to prove that this land was mortgaged by the father of the plaintiff in favour of the defendant and no explanation, worth the name, is/was rendered before the learned first appellate Court to explain the circumstances under which he had made an admission before the learned court and as such, this court sees no illegality and infirmity in the judgments passed by the learned courts below. 21. There cannot be any quarrel with the proposition of law that admission, if any, made cannot be conclusive proof of facts admitted and may be explained or shown to be wrong but in that eventuality burden of proof shifts on the person making the admission. It is well settled principle that when a party himself make admission, it is presumed to be correct until presumption is rebutted and admission is best piece of evidence that an opposite can party rely upon. It is well settled principle that when a party himself make admission, it is presumed to be correct until presumption is rebutted and admission is best piece of evidence that an opposite can party rely upon. In the instant case, perusal of impugned judgment passed by the learned trial court, nowhere suggest that the defendant was able to discharge aforesaid onus by establishing on record that he had made admission erroneously. 22. At the cost of repetition, this Court once reiterates that it sees no occasion to explore answer, if any, to the substantial questions of law framed at the time of the admission in view of specific finding recorded by this Court in FAO No. 505 of 2005. 23. The Hon’ble Apex Court in Payal Vision Limited vs. Radhika Choudhary, 2012 (11) SCC 405 , wherein it has been held as under:- “7 In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the plaintiff landlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So, long as these two aspects are not in dispute the Court can pass a decree in terms of Order 12 Rule 6 CPC, with reads as under:- “6. Judgment on admission-(1) Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and decree shall bear the date on which the judgment was pronounced.” 8. The above sufficiently empowers the court trying the suit to deliver judgment based on admissions whenever such admissions are sufficient for the grant of the relief prayed for. The above sufficiently empowers the court trying the suit to deliver judgment based on admissions whenever such admissions are sufficient for the grant of the relief prayed for. Whether or not there was an unequivocal and clear admission on either of the two aspects to which we have referred above and which are relevant to a suit for possession against a tenant is, therefore, the only question that falls for determination in this case and in every other case where the plaintiff seeks to invoke the powers of the court under Order 12 Rule 6 CPC and prays for passing of the decree on the basis of admission. Having said that we must add that whether or not there is a clear admission upon the two aspects noted above is a matter to be seen in the fact situation prevailing in each case. Admission made on the basis of pleadings in a given case cannot obviously be taken as an admission in a different fact situation. The precisely is the view taken by this Court in Jeevan Diesels & Electricals Ltd. (2010) 6 SCC 601 , relied upon by the High Court where this Court has observed (SCC p. 604, para 10) “10........Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. The question, namely, whether there is a clear admission or not cannot be decided on the basis of judicial precedent. Therefore, even through the principles in Karam Kapahi vs. Lal Chand Public Charitable Trust, (2010) 4 SCC 753 may be unexceptionable they cannot be applied in the instant case in view of totally different fact situation........” 24. This Court is fully satisfied that both the Courts below have very meticulously dealt with each and every aspect of the matter and as such sees no perversity in the impugned judgments, accordingly, there is no scope of interference, whatsoever, in the present matter. Since both the Courts below have returned concurrent findings, which otherwise appears to be based upon proper appreciation of evidence, this Court has very limited jurisdiction/ scope to interfere in the matter. Since both the Courts below have returned concurrent findings, which otherwise appears to be based upon proper appreciation of evidence, this Court has very limited jurisdiction/ scope to interfere in the matter. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by Hon’ble Apex Court in Laxmidevamma’s case supra, wherein the Court has held as under: “16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’ right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.” (p. 269) 25. Consequently, in view of the detailed discussion made hereinabove, present appeal fails and same is dismissed. 26. Interim directions, if any, are vacated. All miscellaneous applications are disposed of.