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2018 DIGILAW 681 (HP)

Rupa @ Balia v. Suri Mansha Rama

2018-04-18

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J —The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff''s suit for rendition, of, a decree for declaration, as well as for, rendition of a decree for permanent prohibitory injunction qua the suit khasra number(s) , was, hence decreed. 2. Briefly stated the facts of the case are that the plaintiff claims himself to be in joint possession of the suit land earlier as tenant since the land is stated to be with the plaintiff and defendant under tenancy on payment of gall batai to the owners. It has been averred that during settlement operation in the village the entries coming in the record of the rights, in the name of the plaintiff, reflecting the plaintiff to be tenant were moved illegally and the defendant was earlier shown as co-owner in possession of the suit land, but thereafter only the defendant has been shown to be owner. The defendant taking the undue advantage of the entries made in the possessory column of jamabandi preferred an application before the Settlement Collector, Dharamshala, claiming that he was the sole tenant over the suit land and that for the plaintiff was not impleaded as party. The Collector passed order as per the prayer made by the defendant which order is illegal, collusive and liable to be set aside. It has also been averred that he plaintiff was in possession as co-owner and in the month of September, 1994, the defendant threatened to cultivate the land to the exclusion of the plaintiff on which the revenue record was checked and it was found that the name of the plaintiff had been deleted from the entries in the record of rights. It has also been averred that an application was earlier moved by the plaintiff before the Land Reforms Officer for correction of entries in the revenue record, who vide order dated 6.1.1991, advised the plaintiff to get remedy in some competent Court. Thereby after disposal of this application of 6.1.1998 the plaintiff had cause of action to file the suit in the civil court. 3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections inter alia maintainability, locus standi, limitation, valuation jurisdiction as well as non joinder of necessary parties. Thereby after disposal of this application of 6.1.1998 the plaintiff had cause of action to file the suit in the civil court. 3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections inter alia maintainability, locus standi, limitation, valuation jurisdiction as well as non joinder of necessary parties. It has been pleaded that the defendant has become owner of the entire land and the proprietary rights has been conferred in his favour. He has also averred that the entires are coming in possession of defendant which were in the know of the plaintiff. Hence the suit ought to have been filed within time. The suit is time barred. It has also been averred that the suit is not maintainable and be dismissed. 4. The plaintiff filed replication to the written statement of the defendant(s) , wherein, he denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is joint possession of the suit land, as coowner?OPP. 2. Whether the revenue entries showing the defendant to be in possession of the suit land are wrong, illegal, contrary to the spot position and result of collusion and mis-representation, as alleged?OPP. 3. Whether the mutation No.150 sanctioned on January 5, 1978 and order dated June 5, 1986 passed by the Settlement Collector, Kangra at Dharamshala in Case No. 24/86/90 have no binding effect on the plaintiff''s right, title and interest in the suit land?OPP. 4. Whether the order dated Jan.7, 1998 passed by LRO-cum-A.C. 1st Grade/Tehsildar, Dharamsala in the case No.13/1997 (titled as Mansa Ram vs Rupa) is wrong and liable to be declared as such?OPP. 5. Whether the plaintiff is entitled to the relief of permanent injunction as he prayed for?OPP. 6. Whether the plaintiff has no cause of action, as alleged?OPP. 7. Whether the plaintiff has no locus standi to sue?OPD. 8. Whether the suit is not maintainable, as alleged?OPD. 9. Whether the suit is barred by time? 10. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?OPD. 11. Whether this Court has no jurisdiction to entertain the suit?OPD. 12. Whether the suit is bad on account of non joinder of necessary parties? OPD. 13. Relief. 6. 9. Whether the suit is barred by time? 10. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?OPD. 11. Whether this Court has no jurisdiction to entertain the suit?OPD. 12. Whether the suit is bad on account of non joinder of necessary parties? OPD. 13. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the defendant/appellant herein before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 7. Now the defendant/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 01.08.2006, admitted the appeal instituted by the defendant/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether the two Courts below have committed illegality in holding that Ex.DW2/A is not proved to be the statement(admission) of respondentplaintiff Mansha Ram and not using the said statement as a piece of substantive evidence? Substantial question of Law No.1 8. The learned trial Court decreed, the plaintiff''s suit for declaration besides for permanent prohibitory injunction. In the apposite civil suit, the plaintiff, espoused, relief for setting aside the order recorded on 6.1.1998, rendered, in Case No. 13/1997, titled as Mansha Ram vs. Rupa besides claimed rendition of a declaratory decree qua conferment of proprietary rights vis-a-vis the defendants, made under mutation No. 150, sanctioned on 5.1.1978, being quashed, and, set aside and his being declared as co-owner in possession, along with the defendant, in equal share vis-a-vis the suit suit khasra number(s) . 9. As aforestated, under concurrent verdicts pronounced by the learned Courts below, the plaintiff''s suit was decreed. 9. As aforestated, under concurrent verdicts pronounced by the learned Courts below, the plaintiff''s suit was decreed. Since, the substantial question of law aforesaid is alone, required to be adjudicated upon, (i) thereupon, the conclusive binding effect, if any, of admission of the plaintiff, borne in Ex.DW2/A, and, concomitant effect of its comprising, a substantive piece of evidence, is also required to be dwelt into besides adjudicated upon (a) given both the learned Courts below dispelling its vigour, on anvil of (a) DW-2, who tendered and enabled its exhibition, rather during the course of his testification, occurring in his cross-examination, making an echoing of the presence of plaintiff one Mansha Ram being not elicited, under summons, (b) and his being unaware of the identity of Mansha Ram; (c) Mansha Ram remaining unidentified by any personal familiar with his identity. In aftermath, the learned courts below, hence, denuded the probative vigour, of the purported statement of one Mansha Ram, borne in Ex.DW2/A, wherein, he makes an admission of his, not, cultivating the suit land, rather the suit land being cultivated by the defendant, and, in sequel whereto, through an order, borne in Ex.P-6, the apposite corrections, were mandated to be incorporated in the relevant column of the jamabandi apposite to the suit land. Of course, if, the aforesaid admission, borne in Ex. DW2/A is proven to be validly made, and, it being also proven to carry the signatures of the plaintiff, one Mansha Ram, thereupon, it would comprise potent evidence, of his admitting, one Rupa rather cultivating the suit land also thereupon orders, borne in Ex.P-6, would acquire an aura of authenticity. Before proceedings to accept the aforesaid grounds meted by both the learned Courts below, for discountenancing, the statement of one Mansha Ram occurring in Ex.DW2/A, it is imperative to bear in mind, (i) that the best documentary evidence for tearing apart, the probative vigour of Ex.DW2/A, and, also for aptly enabling, Courts of law, to construe of the communications borne thereunder, hence, suffering from any malady of fictitiousness, rather was obviously comprised in the report of the handwriting expert concerned. However, the learned counsel appearing for the plaintiff, while, subjecting DW-2 to cross-examination has, apart from his putting affirmative suggestions to him (a) qua one Mansha Ram remaining not summoned, (b) DW-2 being unaware of the identity of one Mansha Ram, and, (c) no person familiar with the identity of Mansha Ram, proceeding to identify him, during, the course of recording of his statement before the Collector concerned, affirmative suggestions whereof, sequeled apposite affirmative answers, being rendered thereon by DW-2, (d) rather omitted to put the best befitting suggestion vis-a-vis DW-2, of it, not carrying the authentic signature(s) , of one, Mansha Ram nor meted any apposite suggestion qua the purported signatures of one Mansha Ram borne in Ex.DW2/A being fictitious. Furthermore, omission of the aforesaid apposite suggestions being put to DW-2, by the plaintiff''s counsel, while, holding him to cross-examination, garners an inference of the plaintiff acquiescing, of his purported signatures borne in Ex.DW2/A, rather belonging to him. Even if, assumingly, the aforesaid inference of the plaintiff hence, making, the apposite acquiescences, being not erectable, even for want of the aforesaid apt suggestion(s) being put either to the defendant or to DW2, by the counsel for the plaintiff, while holding each to cross-examination, (e) yet the counsel for the plaintiff, did not also make any concerted endeavour for belying, the occurrence of signatures, of, plaintiff Mansha Ram on Ex.DW2/A, whereas, the apposite efforts, in the aforesaid regard, were, comprised in his instituting an application cast, under the provisions of Section 45 of the Indian Evidence Act, before the learned trial Court or before the learned first Appellate Court, with leave being sought therein, for sending for comparison vis-a-vis the Handwriting Expert concerned, the disputed signatures of the plaintiff occurring on Ex.DW2/A or on original thereof vis-a-vis his admitted handwritings or signatures, (f) for hence enabling the expert concerned, to render his apposite opinion qua inter se similarities or variances occurring inter se the disputed signatures, and, the admitted specimen handwritings, of one Mansha Ram. Corollary of the aforesaid omission, is of the aforesaid inference erected by this Court, arising from, omission(s) of the counsel for the plaintiff, omitting to put the apt suggestion to DW-2, nor to the defendant, while holding them to cross-examination, especially, the one appertaining to the signatures of the plaintiffs, not occurring, on Ex.DW2/A, rather reiteratedly, hence garnering immense strength, imminently vis-a-vis hence, the plaintiff acquiescing, to his authentic signatures, occurring on Ex.DW2/A, more so, when without demur, its exhibition was permitted by the plaintiffs'' counsel. 10. Be that as it may, the further effect of the aforesaid omission, is of hence the grounds meted, by the learned courts below, for dispelling the vigour, of Ex.DW2/A obviously, hence capsizing, (i) thereupon, it is to be invincibly concluded that hence, Ex.DW2/A comprises, the scribed admission of the plaintiff vis-a-vis, the recitals borne therein, also it comprise a formidable piece of substantive evidence vis-a-vis the facts disclosed therein, whereupon, hence, the order rendered in Ex.P-6 acquires an aura of authenticity. Whereupon, it is to be concluded of the plaintiff being estopped to claim a declaratory decree as staked in the suit, and, the concurrent judgment(s) and decrees pronounced vis-a-vis the plaintiff rather warranting their reversal. 11. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being not 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 excluded germane and apposite material from consideration. Accordingly, the substantial question of law is answered in favour of the appellant(s) /defendant(s) , and, against the respondent(s) /plaintiff(s) . 12. In view of the above discussion, the present Regular Second Appeal is allowed. In sequel, the judgements and decrees rendered by both the learned Courts below are set aside, and, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.