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2020 DIGILAW 320 (HP)

Ashok Kumar v. Ramesh Chand

2020-06-08

VIVEK SINGH THAKUR

body2020
JUDGMENT Vivek Singh Thakur, J. - This appeal has been preferred against impugned judgment and decree dated 15.2.2006 passed by learned Additional District Judge, Una in Civil Appeal No. 54 of 2002 titled as Ashok Kumar and others vs. Ramesh Chand and another, whereby judgment and decree dated 7.5.2002 for possession of suit land passed in favour of plaintiffs and against the defendants by learned Senior Sub Judge, Una in case No. 153/92 titled Ramesh Chand and another vs. Dalip Kumar and others has been affirmed. 2. Appellants herein are successors-in-interest of original defendants Dalip Kumar and Ishar Dass, who were sons of Lachhman and they shall be referred hereinafter as defendants. 3. Plaintiffs, who are respondents herein, are successors-in-interest of Parmodh Singh son of Dalipa and they shall be referred hereinafter as plaintiffs. 4. I have heard learned counsel for the parties in length and have also scrutinized the record minutely. 5. On 20.9.2006, this appeal has been admitted on following substantial question of law:- Whether the judgments of the two Courts below are vitiated on account of their having not taken into account the finding in the earlier round of litigation that even though an order of ejectment had been passed against the appellants by the Assistant Collector 2nd Grade, under the Punjab Security and Land Tenures Act, the same had not been implemented in the sense that the appellants had not been physically evicted from the land in question? 6. Civil Suit, subject matter of present lis, has been filed with respect to Khasra Nos. 4600, 5019, 5279 and 5296, situated in village Rorawaliwal, Tehsil and District Una. After consolidation operation, separate Khewats were prepared in the name of plaintiffs and other owners and present Khasra numbers were carved out from old Khasra Nos. 4302 min, 4502 min, 4741, 4742 min and 4739/1 as entered in Misssal Hakiyat Istemal for the year 1977-78. 7. It is undisputed that predecessors-in-interest of plaintiffs were owners of Khasra Nos. 4288, 4302, 4502, 4722, 4739 and 4741 as recorded in jamabandi for the year 1955-56 and Lachhman predecessor-in-interest of defendants was recorded as a tenant therein. 8. On record there is reference of three rounds of litigation with respect to suit land or portion thereof. 9. 7. It is undisputed that predecessors-in-interest of plaintiffs were owners of Khasra Nos. 4288, 4302, 4502, 4722, 4739 and 4741 as recorded in jamabandi for the year 1955-56 and Lachhman predecessor-in-interest of defendants was recorded as a tenant therein. 8. On record there is reference of three rounds of litigation with respect to suit land or portion thereof. 9. In the first round of litigation, Parmodh Singh, along with other co-owners, predecessor-in-interest of plaintiffs, had instituted an application No. 7-14A(ii) under Section 14-A of Punjab Security and Land Tenures Act before the Assistant Collector 2nd Grade, Una with respect to Khasra Nos. 4288, 4302, 4502, 4722, 4739 and 4741 as per jamabandi for the year 1955-56 wherein vide order dated 9.7.1963 (Ext.P19) respondent Lachhman Singh, predecessor-in-interest of defendants, was ordered to be ejected. Appeal No. 6/63 titled Lachhman vs. Basanta and others, preferred by predecessor-in-interest of defendants, was dismissed by Assistant Collector 1st Grade exercising the power of a Collector vide order dated 30.12.1963 (Ext.P-20). Thereafter, vide roznamcha/daily diary repat of Patwari of the area, dated 28th October, 1964, (Ext.PW1/A), in sequel to Execution application, possession of land was handed over to its owners i.e. predecessors-in-interest of plaintiffs in presence of Numberdar, Member Panchayat, Police, Chowkidar and others. Execution of warrant of possession, was produced before Assistant Collector 2nd Grade, who vide order 10.11.1964 (Ext.P-6) had placed it on the case file after recording its execution. Thereafter, vide order dated 18.2.1965 Ext.P7, Assistant Collector 2nd Grade had closed the Execution Proceedings after completion of file and accordingly, as per jamabandi for the year 1965-66 Ext.P-9 suit land was recorded in possession of its owners i.e. predecessors-ininterest of plaintiffs. 10. In the second round of litigation, Civil Suit No. 239/68 was preferred by Lachhman, predecessor-in-interest of defendants. The said suit was filed for perpetual injunction restraining the defendants (predecessor-in-interest of plaintiffs) from forcibly dispossessing Lachhman from Khasra Nos. 4740, 4271, 4288, 4302, 4502, 4722, 4739, 4741, and 6485/4261, claiming ownership in possession thereon. The said suit was dismissed by learned Sub Judge 1st Class, Una vide judgment dated 29.4.1971 Ext.P-3. In this suit, issue No. 4 was as under:- "Whether the plaintiff was ejected from suit land pursuant to order of the Revenue Court, as alleged? ...OPD" 11. 4740, 4271, 4288, 4302, 4502, 4722, 4739, 4741, and 6485/4261, claiming ownership in possession thereon. The said suit was dismissed by learned Sub Judge 1st Class, Una vide judgment dated 29.4.1971 Ext.P-3. In this suit, issue No. 4 was as under:- "Whether the plaintiff was ejected from suit land pursuant to order of the Revenue Court, as alleged? ...OPD" 11. In findings returned to this issue, learned Sub Judge had held that plaintiff therein (Lachhman) himself, in cross examination, had admitted the factum of passing a decree of ejectment against him and thus, for his admission, the issue was decided against Lachhman, predecessor-ininterest of defendants. 12. The appeal preferred by Lachhman was also dismissed by learned District Judge, Una vide judgment dated 23.4.1973 (Ext.P-12). In this judgment, learned District Judge had referred judgment and decree dated 16.5.1966 (Annexures D1 and D2 in that litigation) passed by Punjab and Haryana High Court in RSA No. 693/58 and on the basis of that, he had held that with regard to seven Khasra Nos. 4271, 4288, 4302, 4502, 4722, 4739, and 4741, the point in issue with respect to ownership in possession stood finally settled and therefore, those findings of Punjab and Haryana High Court would operate as resjudicata with respect to these seven Khasra numbers. All these Khasra numbers were subject matter of first round of litigation. Learned District Judge, in this judgment, had held that judgment of Punjab and Haryana High Court would not operate as resjudicata with respect to Khasra Nos. 4740 and 6485/4261. Learned District Judge had also reversed the findings of learned Sub Judge on issue No.4 for want of availability of data on record to substantiate the plea of predecessor-in-interest of plaintiffs. However, claim of Lachhman Singh predecessor-in-interest of defendants qua ownership on suit land like learned Sub Judge, was also rejected by learned District Judge. 13. An appeal RSA No. 47 of 1973 was preferred against judgment dated 23.4.1973 passed by learned District Judge, Una. In this appeal, this High Court vide judgment dated 2.4.1985, Ext.P-4 had modified the judgment and decree passed by learned District Judge to the extent that a decree for perpetual injunction was passed restraining the defendants (predecessor-in-interest of plaintiffs herein) from forcibly dispossessing the plaintiffs (predecessor-in-interest of defendants herein) from suit land except by due course of law. 14. In this appeal, this High Court vide judgment dated 2.4.1985, Ext.P-4 had modified the judgment and decree passed by learned District Judge to the extent that a decree for perpetual injunction was passed restraining the defendants (predecessor-in-interest of plaintiffs herein) from forcibly dispossessing the plaintiffs (predecessor-in-interest of defendants herein) from suit land except by due course of law. 14. The outcome of aforesaid litigation is that claim of predecessor-in-interest of defendants for having acquired ownership on suit land was rejected, but, their possession was protected and predecessor-in-interest of plaintiffs was restrained from dispossessing predecessor-in-interest of defendants from suit land except by due course of law. 15. Third round of litigation is not strictly between predecessor-in-interest of plaintiffs and predecessor-in-interest of defendants, but between one Bhagwan Dass (vendee), who purchased land i.e. a portion of suit land from Basanta one of the ancestors of plaintiffs, and Lachhman, predecessor-ininterest of defendants. The said Bhagwan Dass had filed a Civil Suit No. 486 of 1973 with respect to a portion of suit land measuring 14 Canals 8 Marlas comprised in Khasra Nos. 4271 and 4288 and this portion of land was subject matter of first and second rounds of litigation. This suit was filed for possession on the basis of title. This suit was decreed vide judgment dated 16.6.1977 Ext.P-17. The appeal preferred against this judgment was dismissed by learned District Judge vide judgment dated 15.11.1979 and thereafter, Regular Second Appeal No. 170 of 1979 was also dismissed by this High Court vide judgment dated 27.11.1990 (Ext.P-16). 16. The protection granted by this High Court in favour of predecessor-in-interest of defendants in RSA No. 47 of 1973 was also taken into consideration at the time of decision of RSA No. 170 of 1979. In that appeal, after taking into consideration, the first round of litigation, this High Court had observed as under:- "....Basanta, the original owner, sought eviction of Lachhman Singh, predecessor of defendants under the provisions of the Punjab Security of Land Tenures Act by filing a petition before the Assistant Collector Second Grade, Una, on December 14, 1962. An order of ejectment dated July 9, 1963 Ex.P/5 (Ext.P19 herein) was passed against Lachhman Singh. This order was challenged in appeal before the Assistant Collector First Grade, Garhshankar, exercising the powers of Collector, who on December 30, 1963,, dismissed the appeal vide his order Ext.P/6 (Ext.P-20 herein). An order of ejectment dated July 9, 1963 Ex.P/5 (Ext.P19 herein) was passed against Lachhman Singh. This order was challenged in appeal before the Assistant Collector First Grade, Garhshankar, exercising the powers of Collector, who on December 30, 1963,, dismissed the appeal vide his order Ext.P/6 (Ext.P-20 herein). Ext.P/8 the Copy of the report made on the warrant of ejectment, shows that on October 28,1964, Lachhman Singh was actually dispossessed and Basanta was put in possession of the property. Ext.P/9 (Ext.PW1/A herein) which is the copy of Roznamcha Waqiati Patwari records the factum of actual dispossession of Lachhman Singh. ExtP/7 (now Ext.P6) is the copy of order dated November 10, 1964, passed by Tehsildar, Una, dismissing the execution petition filed by Basanta as fully satisfied. Ext.P/10 is copy of entry in Khasra Girdawari shows a change in the column of cultivation since Rabi 1964 on the basis of actual dispossession of Lachhman Singh in pursuance of an order of ejectment. This documentary evidence coupled with statement of plaintiff as PW1 leaves no manner of doubt that Lachhman Singh was actually ejected from the land comprised in Khasra Nos. 4288, 4302, 4502, 4722/4739 and 4741 situate in village Rorawaliwal. Ext.P/11 is the copy of another order passed on July 9, 1963 by Assistant Collector Second Grade, Una in a case instituted by Basanta against one Ganiuan son of Chandu, who happens to be the brother of Lachhman Singh, ordering his ejectment from land comprised in Khasra Nos. 4271 and 4502 situate in the same village." 17. Thus, it is evident that in third round of litigation also, claim of predecessor-in-interest of defendants was rejected by Courts and it is informed that said finding was also affirmed by the Apex Court vide judgment dated 9.7.1991. 18. The protection available to predecessor-in-interest of defendants and consequently to defendants by virtue of judgment of this Court passed in RSA No. 47 of 1973 was that they shall not be dispossessed from suit land except by due course of law. Therefore, findings returned by Courts below in impugned judgments against the defendants and passing a decree for possession of suit land in favour of plaintiffs and against the defendants is in consonance with earlier rounds of litigation and judgments pronounced by different Courts therein, which have attained finality. 19. Therefore, findings returned by Courts below in impugned judgments against the defendants and passing a decree for possession of suit land in favour of plaintiffs and against the defendants is in consonance with earlier rounds of litigation and judgments pronounced by different Courts therein, which have attained finality. 19. Though, there is material on record to establish that order of ejectment passed by Assistant Collector 2nd Grade under Punjab Security and Land Tenures Act against the predecessor-in-interest of defendants had been implemented, but even if it is considered that it was not implemented, then also now defendants have not been dispossessed forcibly by plaintiffs, but plaintiffs have adopted the course available to them under law to dispossess them. Therefore, findings on substantial question of law framed herein are returned against the appellants i.e. defendants and judgments and decrees passed by Courts below are upheld. 20. Appeal is dismissed. All pending miscellaneous application(s), if any, also stand disposed of accordingly. Registry is directed to prepare the decree sheet accordingly.