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2018 DIGILAW 603 (HP)

Jagat Pal v. Chudamani @ Rattan Lal

2018-04-10

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J —The plaintiff/respondent herein (for short "the plaintiff) , instituted a suit for rendition of a decree, of, permanent prohibitory injunction, for, restraining the defendants, from, interfering in his peaceful ownership, and, possession vis--vis land measuring 0-4 bighas comprised in Khewat No. 14 min, Khatoni No. 36, Khara No. 12, situated at village Gassaur, Pargana and Tehsil Sadar, District Bilaspur, H.P. In addition, the plaintiff also prayed for rendition of a decree of mandatory injunction, for, demolishing the construction/structure, if any, raised thereon by the defendants. 2. The defendants/appellants herein (for short "the defendants) resisted the suit, and, claimed qua theirs being in settled peaceful possession of the suit land, whereon, they pleaded, of, theirs about 40 years ago, hence raising, a cow-shed and kitchen. 3. During the pendency of the aforesaid civil suit, demarcation of the suit property, was, carried by the revenue official concerned, and, the apposite report prepared subsequent thereto, was, also filed before the learned trial Court. Thereafter, an application cast under the provisions of Order 6 Rule 17 C.P.C was filed, whereunder, the plaintiff sought leave to incorporate, in the plaint, certain averments bearing concurrence with the report furnished, by the demarcating Officer. However, the apposite leave was refused. The verdict declining relief vis--vis the plaintiff, upon, his application, cast under the provisions of order 6 rule 17 CPC, remained un-assailed before the learned Appellate Court, hence, it has attained finality besides conclusivity. 4. A perusal of the order rendered on 5.4.2013, also, reveals that the demarcation carried on 5.3.2010, in consonance wherewith, the apposite leave, for incorporating certain amendments in the plaint, was, sought, rather being set aside by the learned Collector concerned. Thereupon, the learned trial Court, was hence constrained, to refuse the apposite leave, upon, the plaintiff''s application cast, under the provision of order 6 Rule 17 CPC, yet no further opportunity was granted to the plaintiff, to, thereafter institute a fresh application, under, the provisions of Order 6 Rule 17 CPC, thereupon, the order pronounced on 5.4.2013 hence gathers an enhanced aura of conclusivity. Consequently, the orders pronounced on 5.4.2013, were not reopenable, by any advisory(s) being meted, by the learned appellate Court vis--vis the plaintiff, to, institute a fresh application under the provisions of Order 6 Rule 17 CPC, it being previously dismissed, order of dismissal whereof, for aforestated reasons rather acquired conclusivity. 5. Consequently, the orders pronounced on 5.4.2013, were not reopenable, by any advisory(s) being meted, by the learned appellate Court vis--vis the plaintiff, to, institute a fresh application under the provisions of Order 6 Rule 17 CPC, it being previously dismissed, order of dismissal whereof, for aforestated reasons rather acquired conclusivity. 5. Even though, an imminent conclusivity stands gathered by order rendered on 5.4.2013 vis--vis an application, cast under the provisions of Order 6 Rule 17 C.P.C, yet, thereafter under order rendered on 19.4.2014, the learned Court impliedly accepted the report of the demarcating Officer, despite, its coming to be set aside, by the learned Appellate authority concerned. However, the aforesaid acceptance of Ex.PW-1/B, by the learned trial Court, under orders recorded on 9.10.2014, despite, it being set aside, yet may not be a tenable ground, for its, being ousted from consideration, given the Civil Court concerned, also holding the apposite jurisdiction to test validity thereof, and, the orders pronounced by Revenue Officer(s) concerned, being not binding upon the Civil Court concerned, rather conversely orders rendered by the Civil Court concerned, both prevailing, and, binding upon the Revenue Officer concerned. However, despite, the learned trial Court in the last portion, of, order pronounced, on 9.10.2014, reserving powers vis--vis it, for appointing a local commissioner, nonetheless the plaintiff, despite the matter thereafter being taken up, on numerous occasions, omitted to make an appropriate prayer, for appointment of a Local Commissioner, (a) thereupon he is to be inferred to hence acquiesce vis--vis the report of the local Commissioner, comprised in Ex. PW-1/B. The effect of the plaintiff, to, despite his awareness vis--vis the portrayals borne in Ex.PW-1/B, hence, omit to seek an apposite leave from the learned trial Court, when stands conjoined, with the aforesaid inference, of, the order rendered on 5.4.2013 acquiring conclusivity(s) , (b) is, of hence with the learned trial Court also omitting to appoint a local commissioner, thereupon, it being tenably inclined to take into consideration Ex.PW-1/B, (c) moreover, when the afore-stated factum, stands entwined, with the afore-stated lack of preservation of any liberty, by the learned trial Court vis--vis the plaintiff, to, as and when a fresh report of the Local Commissioner concerned, hence emerges, rather constitute an apposite application (d) is, of the learned appellate Court rather inaptly belittling, the conclusivity acquired by the mandates recorded, by the learned trial Court, on, 5.4.2013, and, on 9.10.2014, and, rather its unbefittingly proceeding to make inapt advisory(s) vis--vis the plaintiff. Hence, it appears that the learned appellate Court, has perpetrated gross miscarriage of justice. 6. Since the learned counsel appearing for the plaintiff, has contended (a) that when the plaintiff besides claiming rendition, of, a decree of permanent prohibitory injunction also claimed rendition, of, a decree of mandatory injunction, (i) hence dehors conclusivity being acquired by the aforesaid order (ii) AND, dehors no leave being permissibly nowat affordable vis--vis the plaintiff, for, incorporating certain amendments, holding concurrence with Ex.PW-1/B, (b) yet the learned trial Judge was enjoined, to, in consonance with Ex.PW-1/B hence render a decree for mandatory injunction imperatively when relief thereof was claimed in the plaint. The aforesaid plea is tenable, especially when despite the plaintiff, through, ground No. 3 constituted in the apt grounds of appeal, hence casting a trite onslaught, before, the learned appellate Court vis--vis the verdict recorded by the learned trial Court, (a) whereupon he espouses qua non-rendition of a decree of mandatory injunction besides non-striking of an apposite issue thereon rather vitiating the apposite verdict, (b) whereas the learned Appellate Court, rather proceeded to overlook the afore-stated ground, reared before it, by the plaintiff, and, also inaptly proceeded to make uncalled for advisory(s) vis--vis the plaintiff, (c) thereupon this Court is constrained to allow the appeal, and, to after setting aside the inapt advisory(s) meted to the plaintiff, hence, make an order of remand, vis-vis the learned first Appellate Court AND (d) also this Court is further constrained to direct the first Appellate Court, to, either affirm or disaffirm the apposite ground(s) , comprised, in ground No.3, of the apt grounds of appeal, and (e) to, if deemed necessary, it shall in accordance with law, frame an apposite issue thereon (f) thereafter if deemed fit shall make an apposite order in accordance with law vis--vis remand of the apposite Civil Suit, qua the learned trial Court, (g) also the learned first Appellate Court is directed, to, permit the defendants to move an appropriate application before it, for, enabling them to propagate an apposite plea of theirs, acquiring title by prescription vis--vis the suit land, (h) in addition, the learned trial Court is directed to, hence, in accordance with law, pass appropriate orders thereon. The tenacity of ground Number 3, constituted in the grounds, of, the apposite Civil appeal, and, the application afore-stated filed, before, the learned appellate Court, by the defendants shall be cumulatively decided, whereafter, an appropriate order(s) , in accordance with law, if deemed fit, shall be made of remand of the suit vis--vis the learned trial Court. 7. The tenacity of ground Number 3, constituted in the grounds, of, the apposite Civil appeal, and, the application afore-stated filed, before, the learned appellate Court, by the defendants shall be cumulatively decided, whereafter, an appropriate order(s) , in accordance with law, if deemed fit, shall be made of remand of the suit vis--vis the learned trial Court. 7. Before parting, this Court is consistently noticing, that (i) the Revenue Officers concerned are irrevering mandate(s) , of, Civil Courts, (ii) despite, pendency of matters before Civil Courts, holding commonality vis--vis lis'' wherewith they stand engaged, (iii) imperatively when Civil Courts alone hold the apt jurisdiction, to, render pronouncement(s) qua validity of entitlement of any genre, more especially, when they exercise powers, of Civil Courts, under special legislations, and, make apt binding pronouncements vis--vis entitlements, of, any genre (iv) whereupon Revenue Court(s) rather being bound to revere verdict(s) pronounced by Civil Court(s) , when, they hence exercise powers of Civil Court, under special legislations, (v) whereas contrarily Revenue Officer(s) being seized with lis'', holding commonality vis--vis lis'' whereon verdict(s) are pronounced by Civil Court(s) are inaptly irrevering verdicts of Civil Court, hence are unsettling the salient expostulation of law, of, verdicts of Civil Courts being binding upon them, conflicting verdicts whereof, rendered by the Revenue Officer(s) , are perse hence per incuriam, and, are irreverable. Consequently, hence, the Revenue Officer(s) also breach the principles of res judicata, and of estoppel besides untenably render verdicts in conflict, with, the verdicts recorded by the Civil Courts. For ensuring compliances, by all the Revenue Officer(s) vis--vis the principles of (i) res sub judice (ii) Principle of estoppel, and, of res judicata embodied in Section 11 of C.P.C (iv) AND for ensuring compliances by them vis--vis the verdicts pronounced, by the Civil Courts, more so when they exercise powers under special legislations. Thereupon, the Registry is directed to forthwith transmit a copy of this order vis-vis, (a) the Financial Commissioner (Appeals) ; (b) all Divisional Commissioners, and (c) all the SDMs, within the State of Himachal Pradesh. Any infraction thereof by the aforesaid Officer(s) , shall entail theirs being visited with proceedings for contempt. The aforesaid officers are also directed to, on receiving a copy of the extant verdict, make apposite communication(s) vis--vis the Registry, of, this Court. 8. The parties are directed to appear before the learned appellate Court, on, 7.5.2018. Records be send down. Any infraction thereof by the aforesaid Officer(s) , shall entail theirs being visited with proceedings for contempt. The aforesaid officers are also directed to, on receiving a copy of the extant verdict, make apposite communication(s) vis--vis the Registry, of, this Court. 8. The parties are directed to appear before the learned appellate Court, on, 7.5.2018. Records be send down. Pending applications be disposed of accordingly.