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2017 DIGILAW 486 (HP)

Maina Devi v. Baru Devi

2017-05-08

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal has been maintained by the appellants, who were defendants before the learned Trial Court (hereinafter referred to as “the defendants”), challenging the judgment and decree, dated 18.06.2005, of the learned District Judge, Kullu, H.P. passed in Civil Appeal No. 83-04, whereby the judgment and decree, dated 30.09.2004, passed by learned Civil Judge (Senior Division), Lahul and Spiti at Kullu, H.P. passed in Civil Suit No. 48 of 1999, was upheld wherein the suit of the respondent, who was plaintiff before the learned Trial Court (hereinafter referred to as ‘the plaintiff’), was decreed. 2. At the very outset it wroth mentioning that the instant appeal has been preferred by the appellants and appellant No. 1, Smt. Maina Devi, is daughter and legal representative of Smt. Dodi (defendant No. 1 before the learned Trial Court), as Smt. Dodi died during the pendency of appeal before the learned First Appellate Court. The respondents in the present appeal are the legal representatives of Shri Dinu Ram (the original plaintiff), who also died during the pendency of the present appeal. 3. Briefly, the key facts, which are indispensable for determination and adjudication of the present appeal, are that the original plaintiff maintained a suit in the Court of first instance seeking a decree of permanent prohibitory injunction by restraining the defendants from making any type of interference in the land comprised in Khata Khatauni No. 947/1777 min, Khasra No. 6098/4967, measuring 0-3-0 bighas, situate in Phati Hallan, Kothi Naggar, Tehsil and District Kullu, H.P. (hereinafter referred to as “the suit land”). The original plaintiff alleged that he was the owner-in-possession of the suit land, a portion of which was abadi, having his house, and rest of the land was agricultural land. As per the original plaintiff, he became the original owner of the suit land vide mutation No. 7137, dated 08.08.1996, and defendants have no right, title and interest over the same. The defendants threatened the original plaintiff to dispossess him. Defendant No. 2 is a deity, i.e., “Devta Gopal Ji” of Sarsei and original defendant No. 1 was the ‘Kardar’ of defendant No. 2. The defendants did not accept the claim of the original plaintiff, thus the original plaintiff maintained a suit for injunction against the defendants. 4. The defendants threatened the original plaintiff to dispossess him. Defendant No. 2 is a deity, i.e., “Devta Gopal Ji” of Sarsei and original defendant No. 1 was the ‘Kardar’ of defendant No. 2. The defendants did not accept the claim of the original plaintiff, thus the original plaintiff maintained a suit for injunction against the defendants. 4. The defendants, by way of filing the written statement, contested and resisted the suit of the plaintiff. Preliminary objections, viz., maintainability, non-joinder of necessary parties, suppression of material facts, resjudicata, estoppel and that the suit has not been properly instituted, were raised. On merits, it is averred that the original plaintiff was neither owner nor in possession of the suit land. It was contended that defendant No. 2, maintained a suit for possession, by way of ejectment under Sections 34 and 58 of the H.P. Tenancy and Land reforms Act, 1972, and plaintiff was arrayed as defendant No. 4 therein. The said suit was decreed vide judgment and decree dated 18.01.1990. Consequently, defendant No. 2 became owner of Khasras No. 4967 and 3836 to extent of 9 biswas and Khasras No. 4465 and 4466 to the extent of 1/4th share. It was averred that the suit land was also part of the suit property in the aforesaid civil suit, wherein decree for possession was passed in favour of defendant No. 2, i.e., “Devta Gopal Ji”. As per the defendants, a compromise decree was passed in the abovementioned suit inter se the parties. As per the covenant, land measuring 0-9-0 bighas, out of Khasras No. 4967 and 3836 was agreed to be left in favour of the plaintiff. It was further averred that the original plaintiff approached the defendants and accentuated them that instead of giving land measuring 9 biswas in Khasras No. 4967 and 3836, as held in the decree passed in the abovementioned suit, he may be given 9 biswas of land in Khasra No. 3836, so as to avoid severance of land and he may enjoy a single compact plot. The said proposal was accepted and in sequel the plaintiff was given 9 biswas of land in Khasra No. 3836, which was assigned Shikmi Khasra No. 3836/1. As per the defendants, the plaintiff had no right, title and interest over the suit land and the same is left for them by the original plaintiff himself. The said proposal was accepted and in sequel the plaintiff was given 9 biswas of land in Khasra No. 3836, which was assigned Shikmi Khasra No. 3836/1. As per the defendants, the plaintiff had no right, title and interest over the suit land and the same is left for them by the original plaintiff himself. It was further averred that behind the back of the defendants and in collusion with the revenue officials, the original plaintiff instead of getting mutation attested qua land measuring 0-9-0 bighas, out of Khasra No. 3836, got the mutation No. 3137, dated 08.08.1996, attested, qua land measuring 0-12-0 bigha, Khasras No. 3836/1 and 6098/4967, i.e., the suit land. As per the defendants, the original plaintiff got the said mutation attested on the basis of compromise decree passed by the learned Sub Divisional Collector, Kullu, thus they were not bound by the said decree. Precisely, the stand of the defendants, while filing the written statement, was that the plaintiff had no right, title and interest over the suit land and the same was wrongly and illegally bifurcated in Shikmi Khasra No. 6098/4967. It was further averred that on the basis of settlement, the original plaintiff had sold land measuring 0-9-0 bighas, comprised in khasra No. 7836/1 to one Shri Nes Ram, by way of a registered sale deed, dated 14.09.1998, which he could not have sold. Subsequently, the original plaintiff got wrong mutation attested and entries incorporated in his favour so as to dispossess the defendants from the suit land. Lastly, the defendants averred that the original plaintiff had no right, title and interest over the suit land. 5. The original plaintiff filed replication wherein he ingeminated the averments made in the plaint and denied the contents of the written statements. 6. The learned Trial Court on 13.12.1999 framed the following issues for determination and adjudication:- “1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP. 2. Whether the suit is not maintainable? OPD 3. Whether the suit is barred by principle of resjudicata? OPD 4. Whether the plaintiff is estopped by his acts and conduct from filing the present suit? OPD 5. Relief” 7. After deciding issue No. 1 in favour of the plaintiff, issue No. 2 against the defendants, the suit of the plaintiff was decree. OPD 3. Whether the suit is barred by principle of resjudicata? OPD 4. Whether the plaintiff is estopped by his acts and conduct from filing the present suit? OPD 5. Relief” 7. After deciding issue No. 1 in favour of the plaintiff, issue No. 2 against the defendants, the suit of the plaintiff was decree. Issues No. 3 and 4 were not pressed before the learned Trial Court. Subsequently, the defendants preferred an appeal before the learned Lower Appellate Court which was also dismissed. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law: “1. Whether the judgment and decree passed by the learned Sub Divisional Collector, Kullu on 18.01.1990 and thereafter the dismissal of the application filed by the plaintiff-respondent for correction of the judgment and decree on 12.06.2000 would operate as resjudicata and the plaintiff-respondent was estopped from filing the present suit? 2. Whether the learned Courts below erred in holding that the defendants/appellants should have challenged the judgment and decree passed by the learned Sub Divisional Collector, Kullu on 18.01.1990 and also the order dated 12.06.2000, which order was passed in favour of the defendants-appellants? 3. Whether the learned Courts below have mis-construed the principle of estoppel and resjudicata?” 8. I have heard the learned Counsel for the appellants and the learned Court for the respondents. 9. The learned counsel for the appellants has argued that the judgment and decree passed by the learned Lower Appellate Court affirming the judgment and decree of the learned Trial Court is not maintainable and the same is liable to be set aside simply for the reason that the plaintiff had already sold his land to one Shri Nes Ram vide sale deed dated 14.09.1998, so he has left with no land and the appeal is required to be allowed as the learned Courts below have not taken the into consideration. He has further argued that there is no evidence on record that defendant No. 2, ‘Devta Gopal Ji’ stands duly represented and no decree could have been passed against an idol, who is taken as a minor. He has further argued that there is no evidence on record that defendant No. 2, ‘Devta Gopal Ji’ stands duly represented and no decree could have been passed against an idol, who is taken as a minor. The learned counsel appearing for the respondents has argued that the judgment and decree passed by the learned Lower Appellate Court affirming the judgment and decree passed by the learned Trial Court is based upon correct appreciation of evidence which has come on record and the same needs no interference. In rebuttal, the learned counsel for the appellants has argued that the suit filed by the original plaintiff was barred by the principle of resjudicata, which fact was never considered by the learned Courts below and further the learned Courts below have committed grave illegality in not appreciating the evidence in its right and true perspective. 10. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 11. It is true that defendant No. 2, Devta Gopal Ji, on 20.07.1981 maintained a suit for possession by way of ejectment under Sections 34 and 58 of the H.P. Tenancy and Land Reforms Act, 1972, against Nihal Chand and others before the learned Sub Divisional Collector, Kullu. The original plaintiff was defendant No. 4 in that suit. The suit land in that suit included the suit land in the present suit. Manifestly, there was compromise in the suit and the same was decided on 18.01.1990, vide judgment, Ex. D-4 and decree, Ex. D-3. The relevant portion of the order of the Collector in that suit reads as under: “This suit coming for final disposal today before me (S.R. Thakur Collector, Kullu Sub Division, Kullu) in the presence of Shri B.C. Thakur, Advocate for the plaintiff and shri Chetu for the defendants. D-4 and decree, Ex. D-3. The relevant portion of the order of the Collector in that suit reads as under: “This suit coming for final disposal today before me (S.R. Thakur Collector, Kullu Sub Division, Kullu) in the presence of Shri B.C. Thakur, Advocate for the plaintiff and shri Chetu for the defendants. It is ordered that the suit of the plaintiff is decreed partly and the plaintiff is entitled to get joint possession of the suit land fully detailed herein to before barring Khasra No. 4967 and Khasra No. 3836 to the extent of 9 Biswas and Khasra No. 4465 and 4466 for 1/4th share therein which was once held by Smt. Atmu as tenant at will.” Further on 12.06.2000, on an application, the Collector, Sub Division Kullu, passed the following order: “From the perusal it has been found tht the plaintiff Devta Gopal Ji has been entitled to get the joint possession of the disputed land fully detailed in the judgment barring Khasra No. 4967 measuring 0-4 biswas and Khasra No. 3836 to the extent of 0-9 biswas and Khasra No. 4465 and 4466 for 1/4th share which was once held by Smt Atmu as tenant at Will. Thus it is clear that Khasra No. 4967 measuring 0- 4 biswas and Khasra No. 3836 to the extent of 0-9 biswas has already been exclusided from the entitlement of joint possession of the plaintiff. Therefore, the application moved by the defendant No. 4 is without any substance as the relief claimed by the defendant No. 4 has already been given by the Collector in his Judgment and Decree passed on 18.1.90. Hence this application is dismissed.” Thus, it is clear that some land has already been given to the plaintiff, which was to the extent of 9 biswas in Khasra No. 3836 and 4 biswas in Khasra No. 4967. 12. Therefore, as per the judgment, Ex. D-4, the suit of the plaintiff was decreed partly entitling the plaintiff to get joint possession of the suit land barring Khasra No. 4967, as a whole, and Khasra No. 3836 to the extent of 9 (nine) biswas. In fact, the above land includes the suit land in the present case as well. There is also no dispute qua filing of application under Sections 151 and 152 CPC by the original plaintiff, Shri Dinu Ram, for correction and amendment of judgment and decree. In fact, the above land includes the suit land in the present case as well. There is also no dispute qua filing of application under Sections 151 and 152 CPC by the original plaintiff, Shri Dinu Ram, for correction and amendment of judgment and decree. Apparently, the application was filed by the original plaintiff on 01.11.1999 in the said civil suit. The original plaintiff sought correction in the judgment and decree dated 18.01.1990 by incorporating therein that “land comprised in khasra No. 4967 (suit land) measuring 4 biswas out of the land comprised in khasra No. 3836 measuring 0-19-0 bigha be shown to have been left in favour of plaintiff”. Learned Sub Divisional Collector, Kullu, dismissed the said application on 12.06.2000, whereby it was held that relief sought, by way of the application, by the plaintiff stood already granted to him. It was also clarified in the order dismissing the application that Khasra No. 4967, measuring 0-4-0 bigha has already been excluded from the entitlement of the joint possession of the plaintiff. Furthermore, the judgment, decree and order in the application have not been challenged by any of the parties and the same have attained finality. 13. Precisely, the case of the defendants is that land measuring 9 (nine) biswas, out of Khasra No. 4967 and 3837, was left in favour of the plaintiff and not Khasra No. 4967, measuring 4 (four) biswas and 9 (nine) biswas of land out of Khasra No. 3836. The contention of the defendants is that total area of khasra No. 3836 is 0-19-0 bigha and after passing of compromise decree by the learned Sub Divisional Collector, Kullu, whereupon the plaintiff was entitled to occupy 9 (nine) biswas of land from two khasras No., i.e., 4967 and 3836, the plaintiff himself approached them and proposed that instead of giving land measuring 9 (nine) biswas in aforesaid two Khasras No., he may be given land measuring 9 (nine) biswas in one Khasra No. 3836 in order to avoid severance of land and to keep a single compact plot. The said offer was accepted by the defendants and settlement was effected inter se the parties. According to that settlement, out of Khasra No. 3836, 9 (nine) biswas of land was assigned Shikmi Khasra No. 3836/1 and was left to the plaintiff. 14. The said offer was accepted by the defendants and settlement was effected inter se the parties. According to that settlement, out of Khasra No. 3836, 9 (nine) biswas of land was assigned Shikmi Khasra No. 3836/1 and was left to the plaintiff. 14. DW-1, Smt. Maina Devi, tendered her affidavit wherein she has testified and deposed the contents of the written statement in verbatim. She, in her cross-examination, has refused that 9 (nine) plus 4 (four) biswas of land was given in compromise to the plaintiff, however, the testimony of this witness remained uncorroborated. She has further deposed that as per the compromise, after passing of the said judgment and decree, the plaintiff was given 9 (nine) biswas of land, out of Khasra No. 3836. Thus, no land was given to the plaintiff in Khasra No. 4967. She has further testified that said 9 (nine) biswas of land, out of Khasra No. 3836 had been sold by the plaintiff vide sale deed dated 14.09.1998 to one Shri Nes Ram. There is no dispute qua execution of the sale deed of said 9 (nine) biswas of land out of Khasra No. 3836. The plaintiff has not produced any evidence qua compromise and relinquishing the land of Khasra No. 4967 in favour of the defendants. It is settled that mere attestation of mutation does not confer any right, title or interest, especially when any entry contrary to the interest of the plaintiff qua Khasra No. 4967 had been incorporated, the same had no binding effect on the rights of the plaintiff. Even if the plaintiff had left or relinquished his right in Khasra No. 4967, then a new right was to be created in favour of the defendants and the same was required to be created by a registered deed. The defendants have led no evidence qua the fact that the plaintiff had left his claim over the suit land. The defendants are claiming their right over the suit land on the basis of mis-construing, mis-reading and wrong interpretation of the judgment and decree, whereupon the plaintiff derived his title over the suit land. Statements, Ex. P-1 and Ex. P-2, are clear and unambiguous to the extent that whole of Khasra No. 4967 and 9 (nine) biswas of land, out of Khasra No. 3836, was left in favour of the plaintiff. Statements, Ex. P-1 and Ex. P-2, are clear and unambiguous to the extent that whole of Khasra No. 4967 and 9 (nine) biswas of land, out of Khasra No. 3836, was left in favour of the plaintiff. However, the defendants, by resorting to mis-interpretation of the judgment and decree, are wrongly and unlawfully claiming their rights over the suit land. No settlement/compromise, as pleaded by the defendants, stands proved, which renders the claim of the defendants qua the suit land illegal and unlawful. 15. From the above, it is crystal clear that the judgment and decree passed by Sub Divisional Collector, Kullu, on 18.01.1990 was interpreted correctly by learned Sub Divisional Collector, Kullu, while passing order in the application of Dinu on 12.06.2000 and he has rightly arrived at the conclusion that the land was given to Dinu (plaintiff) to the extent he was claiming, thus the application was dismissed. Meaning thereby that the plaintiff has a fresh cause in case the defendants started interfering in the land and the suit was not barred by resjudicata and estoppel. Further as the defendants have not pressed the issues of suit being barred by resjudicata and estoppel before the learned Trial Court, the substantial question of law No. 1 is answered holding that the learned Court below has committed no illegality in appreciating the evidence and the same has been appreciated in its true and right perspective. 16. In fact, the judgment and decree passed by Sub Divisional Collector, Kullu, dated 18.01.2000, and the order dated 12.06.2000 passed on an application, were in favour of Dinu (plaintiff), whereby he was given land to the extent of 9 (nine) and 4 (four) biswas, in case the defendants were dissatisfied with the said judgment, decree and order, then they should have maintained an appeal. Substantial question of law No. 2 is answered holding that the learned Courts below have passed the judgment and decree within the confines of law. 17. Substantial question of law No. 3 is answered holding that the learned Courts below have neither misconstrued the principle of resjudicata nor failed to apply the law correctly to the facts of the present case. Thus, the judgments and decree passed by the learned Courts below needs no interference and the instant appeal, which sans merits, deserves dismissal and is dismissed. Thus, the judgments and decree passed by the learned Courts below needs no interference and the instant appeal, which sans merits, deserves dismissal and is dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. 18. Pending miscellaneous application, if any, also stand disposed of.