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2020 DIGILAW 93 (HP)

Karam Singh v. Bohra Ram

2020-01-07

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - Instant Regular Second Appeal filed under S.100 CPC lays challenge to judgment and decree dated 25.7.2009 passed by learned Additional District Judge, Ghumarwin, District Bilaspur, Himachal Pradesh (camp at Bilaspur), in Civil Appeal No. 60-13 of 2006, affirming judgment and decree dated 28.2.2006 passed by learned Civil Judge (Senior Division), Ghumarwin, District Bilaspur, Himachal Pradesh in Case No. 95/1 of 2004/96, titled Bhotha (deceased) through legal representatives and others vs. Bohra Ram and others, whereby suit having been filed by the appellants-plaintiffs (hereinafter, 'plaintiffs') for injunction came to be dismissed. 2. Precisely the facts of the case as emerge from the record are that the plaintiffs filed a suit for permanent prohibitory injunction against the predecessor-in-interest of the respondents/defendants (hereinafter, 'defendants') late Bohra and Anant Ram restraining him from causing any interference in the land measuring 9-16 Bigha comprised of Khasra No. 96, Khewat Khatauni No. 90/166 situate in Village Ghumarwin, Pargana Tiun, District Bilaspur, (hereinafter, 'suit land'). Plaintiffs averred in the plaint that the suit land has been recorded in the joint ownership of the plaintiffs and defendants but entries in the name of late Bohra Ram showing him to be owner-in-possession are wrong, as per Jamabandi for the years 1990-91. Plaintiffs alleged that their predecessors-ininterest filed an application under Ss. 11 and 14 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter, 'Act'), 1953, for the conferment of proprietary rights before Compensation Officer, Ghumarwin, in which defendant No.2 and his brothers compromised the matter with the predecessors-in-interest of the plaintiffs, whereby predecessors-in-interest of the plaintiffs agreed to leave possession of land measuring 2 Bigha 10 Biswa comprised of Khasra Nos. 96/1 and 96/2 On the basis of aforesaid settlement, Tatima was prepared and statements were recorded. Plaintiffs averred that in view of aforesaid compromise, application was decided by Compensation Officer and proprietary rights of plaintiffs were admitted by defendant No.2 and his brothers. Predecessors-in-interest of the plaintiffs were kept tenant in possession of 65/96 share recorded in the ownership of Smt Sartaju, who was a widow. Plaintiffs claimed in the plaint that since their predecessors-in-interest being poor and illiterate could not engage any lawyer, defendant No. 2 taking undue advantage of their poverty and ignorance, got statements in the order recorded against the compromise. Plaintiffs claimed in the plaint that since their predecessors-in-interest being poor and illiterate could not engage any lawyer, defendant No. 2 taking undue advantage of their poverty and ignorance, got statements in the order recorded against the compromise. Plaintiffs also alleged that the Compensation Officer signed the order without going through the statements of compromise and passed an illegal order on 6.5.1966, which is without jurisdiction. 3. Plaintiffs averred that the Compensation Officer ordered to enter Smt. Sartaju as owner qua 65/196 share whereas, plaintiffs had only left specific portion of Khasra Nos. 96/1 and 96/2 measuring 2 Bigha 10 Biswa to defendant No.2 etc. and no land was left to Smt. Sartaju. Plaintiffs averred that their predecessors-in-interest believed the impugned order passed by Compensation Officer but in fact, the same was passed against the compromise. Plaintiffs alleged that they were not aware of wrong and illegal order and they being tenants-inpossession have acquired proprietary rights under the Act and are the owners of the suit land. In the aforesaid background, plaintiffs prayed for permanent prohibitory injunction restraining defendants from interfering in their possession, in the alternative, plaintiffs claimed that if plaintiffs are not considered to be owners of suit land, they have become owners by way of adverse possession. 4. Defendant No.1 contested the suit by filing written statement, taking preliminary objections regarding maintainability, cause of action, estoppel, jurisdiction and limitation and on merits, it is admitted that the parties are joint owner-in-possession of the suit land. It is averred that revenue entries in his name are correct. Factum with regard to filing of application before Compensation Officer and subsequent compromise and passing of order has been admitted. It is stated by defendant No.1 that no appeal etc. was filed against the order of Compensation Officer. It is stated in the written statement that Sartaju was receiving Lagaan before passing of order and after passing of order dated 6.5.1966, she was declared owner-in-possession of 1/2 share and was put in possession thereof. 5. On the basis of aforesaid leadings adduced on record by respective parties, following issues came to be framed by learned trial Court: "1. Whether the plaintiffs are owners in possession of suit land as non-occupancy tenants? OPP 2. Whether the plaintiffs are entitled to a decree for permanent prohibitory injunction as prayed? OPP 3. Whether the plaintiffs in alternative are entitled to a decree for possession? Whether the plaintiffs are owners in possession of suit land as non-occupancy tenants? OPP 2. Whether the plaintiffs are entitled to a decree for permanent prohibitory injunction as prayed? OPP 3. Whether the plaintiffs in alternative are entitled to a decree for possession? OPP 4. Whether this Court has jurisdiction to hear and decide the suit? OPP 5. Whether the plaintiffs are estopped to file the present suit by their own act and conduct? OPD 6. Whether the suit is not within time? OPD 7. Whether the order dated 6-5-1966 of the Compensation Officer is against the compromise entered into between the plaintiffs and defendant No. 2 and as such illegal, null and void and beyond jurisdiction? OPD 8. Whether no compromise was entered into the plaintiffs and Smt. Sartaju? OPP 9. Whether the plaintiffs are owners in possession of the land measuring 7-7 Bighas comprised in Khasra No. 96/3 as per above compromise? OPP 10. Whether the plaintiffs failed to deposit the compensation amount and entered into compromise with Smt. Sartaju and thereby surrendered 1/2 share in favour of Smt. Sartaju? OPD 10-A Whether the plaintiffs have become owner of the suit land by way of adverse possession as alleged? OPP 11. Relief." 6. Learned trial Court, subsequently vide judgment and decree dated 28.2.2006, dismissed the suit of the plaintiffs, whereafter, plaintiffs filed an appeal under S.96 CPC in the court of learned Additional District Judge, Ghumarwin, camp at Bilaspur, District Bilaspur, Himachal Pradesh, which also came to be dismissed vide judgment and decree dated 25.7.2009. In the aforesaid background, plaintiffs have approached this Court in the instant proceedings, praying therein to decree their suit after setting aside judgments and decrees passed by both the learned Courts below. 7. Aforesaid appeal having been filed by the plaintiffs was admitted by this Court on 19.7.2010 on following substantial questions of law: "1. Whether the courts below have committed an error in appreciating the evidence on record, thereby committed material prejudice to the appellants? 2. Whether the first appellate Court has committed an error in holding that the suit was barred by limitation?" 8. Since both the substantial questions of law are interconnected, same are being taken up together for adjudication to avoid repetition of discussion of evidence. 9. Careful perusal of the documentary evidence i.e. Ext. 2. Whether the first appellate Court has committed an error in holding that the suit was barred by limitation?" 8. Since both the substantial questions of law are interconnected, same are being taken up together for adjudication to avoid repetition of discussion of evidence. 9. Careful perusal of the documentary evidence i.e. Ext. P6, copy of Jamabandi for the years 1965-66 available on record reveals that Shri Anant Ram i.e. defendant No.2 and his brothers namely Nika Ram, Nand Lal, Mahant Ram and Jeet Ram are owners qua 2/3rd share in the suit land, whereas, remaining 1/3rd share was owned by Smt. Sartaju i.e. predecessor-in-interest of defendant No.1. It is also not in dispute that aforesaid land was under tenancy of Bhotha and Makodu i.e. predecessors-in-interest of the appellants/original plaintiffs. It is also not in dispute that predecessors-in-interest of the plaintiffs being tenants over the suit land, filed an application for conferment of proprietary rights under Ss. 11 and 14 of the Act before the Compensation Officer, wherein parties entered into a compromise. On the basis of same, order dated 6.5.1966, Ext. P-1 came to be passed. Exts. PW-7/A and PW-7/B are the statements given by the plaintiffs namely Bhotha and Makodu and Ext. PW-7/C is the statement made by predecessor-in-interest of defendants namely Anant Ram and his brothers. Careful perusal of aforesaid statements undisputedly reveals that the plaintiffs left their claim over specific piece of land measuring 2 Bigha 10 Biswa, i.e. Khasra No. 96/2, shown in Tatima Ext. P-2. Claim of the plaintiffs is that in view of aforesaid compromise and statements given by them, predecessors-in-interest of the plaintiffs admittedly ought to have got the proprietary rights in the remaining land i.e. 7-6 Bigha but if statements of the parties recorded on 6.5.1966 are read in their entirety, same clearly reveal that it was agreed inter se parties that the tenants i.e. plaintiffs will get proprietary rights only in 4-11 Bigha of land, as such, Compensation Officer passed order Ext. P-1, whereby the plaintiffs were given proprietary rights qua 4-11 Bigha of land, whereas, they did not claim proprietary rights qua 65/196 share of Smt. Sartaju and 40/196 share of Shri Anant Ram or predecessor-in-interest of defendant No.2 and his brothers. 10. P-1, whereby the plaintiffs were given proprietary rights qua 4-11 Bigha of land, whereas, they did not claim proprietary rights qua 65/196 share of Smt. Sartaju and 40/196 share of Shri Anant Ram or predecessor-in-interest of defendant No.2 and his brothers. 10. Order dated 6.5.1966 passed by Compensation Officer reads as under: XXX xxx xxx As per aforesaid order, Bhotha and Makodu were made owner of 4-11 Bigha of land on payment of Rs.138.72 as compensation. So far 65/196 share of Sartaju is concerned same was kept as it was with the stipulation that same shall be self-cultivated (Khud Kasht) and as such, when said share of Sartaju was self-cultivated, it cannot be said that after order dated 6.5.1966 also, Bhotha and Makodu remained as tenants of said land. Said order when read in conjunction with the statements of Bhotha and Makodu, leads to only one inescapable conclusion that Bhotha and Makodu were made owners of 4-11 Bigha of land only as has been stated by them in their statements recorded on 6.5.1966 before Compensation Officer, wherein they have stated in the concluding lines that, xxx xxx XXX, thus, the contention of the plaintiffs that Compensation Officer while passing order dated 6.5.1966 has misread the statements of the parties, does not hold its ground in the face of record available before this Court. 11. Mr. K.D. Sood, learned Senior Advocate appearing for the plaintiffs, while making this Court peruse order dated 6.5.1966 Ext. P-1, made a serious attempt to persuade this Court to agree with his contention that since the order passed by Compensation Officer, apparently is wrong and illegal, same is not binding on the plaintiffs/their successors as far as share of Smt. Sartaju is concerned. While making this Court peruse statements given by the plaintiffs and predecessor-in-interest of the defendants parties, Exts. PW-7/A, PW-7/B and PW-7/C, recorded before Compensation Officer, Mr. Sood, learned Senior Advocate, vehemently argued that the Compensation Officer vide order dated 6.5.1966 misconstrued the statements given by the predecessor-in-interest of the parties before him because, bare perusal of the same suggests that the plaintiffs, at no point of time, had agreed to waive off their right to claim proprietary rights over share of Smt. Sartaju and Shri Anant Ram. However, so far plea of adverse possession is concerned, Mr. However, so far plea of adverse possession is concerned, Mr. Sood, learned Senior Advocate stated that he intends to give up claim of the plaintiffs on adverse possession. 12. Pw-2 Bhotha while appearing in the witness box claimed that they had filed a case before Compensation Officer and they had compromised the matter with defendant No.2, though they never compromised the matter with Sartaju. This witness stated that they left about 2 1/2 Bigha of land in favour of defendant No.2 but not in favour of Sartaju. This witness claimed that they are still in possession of land of Sartaju. In his cross-examination, this witness admitted that Nika Ram had filed a suit against Anant Ram, in which he was a defendant. This witness also admitted the factum with regard to filing of appeal by NIka Ram and Anant Ram. This witness also admitted that they were not having any money and as such, they left the land to land owners in 1966. This witness stated that rent receipts were issued till the time they were tenants and after passing of order by Compensation Officer, same were stopped as they had become joint owners of the suit land. 13. Pw-1 is Sohan Lal, who has produced the record. Similarly, PW-3 Nikka Ram Tehsil Ahalmad produced the order of correction of revenue entries and receipts Mark, X, Y, Z and A. Similarly, PW-4 is Ram Krishan, who stated that he has seen the plaintiffs cultivating the suit land for the last 40-45 years. In his cross-examination this witness failed to give number of Khasra numbers and measurement thereof. PW-5 Jagar Nath in his cross-examination admitted the joint ownership of the defendants in the suit land. Similarly, PW-6 Karam Singh admitted in his cross-examination Anant Ram and Bohra to be joint owners of the suit land. However, later he denied this fact. PW-7 Hitender Gupta is the son of Tehsildar, Jaise Ram, who was officiating as Compensation Officer at the relevant time. 14. Similarly, PW-6 Karam Singh admitted in his cross-examination Anant Ram and Bohra to be joint owners of the suit land. However, later he denied this fact. PW-7 Hitender Gupta is the son of Tehsildar, Jaise Ram, who was officiating as Compensation Officer at the relevant time. 14. Leaving everything aside, it was incumbent upon the plaintiffs to prove that order dated 6.5.1966 passed by Compensation Officer is wrong and illegal, but in the case at hand, as has been taken note herein above, application for conferment of proprietary rights was moved by the plaintiffs, wherein they agreed to leave 2 Bigha 10 Biswa of land comprising of Khasra No. 96/2, in favour of Anant Ram and others. As far as Anant Ram and his brothers are concerned, the plaintiffs gave up a particular piece of land by preparing Tatima, claiming proprietary rights qua the share of Smt. Sartaju, but there is no such statement of Smt. Sartaju. Statements made by parties to the lis as well as order passed by Compensation Officer, unambiguously reveal that the plaintiffs claimed ownership only qua 4-11 Bigha of land in Khasra No. 96 as such, there is no force in the argument of Mr. Sood, learned Senior Advocate that since Smt. Sartaju did not give any statement, it cannot be said that predecessors-in-interest of the plaintiffs had left their interest in 65/196 share of Smt. Sartaju in the entire suit land. Though, in the case at hand, plaintiffs in the plaint claimed that the proceedings initiated by them before Compensation Officer under Ss. 11 and 14 of the Act were compromised inter se the plaintiffs and predecessorin-interest of the defendants but material available on record clearly reveals that since the plaintiffs failed to deposit the amount of compensation, they entered into compromise. S.11(6) of the Act and Rule 5(2) of the Rules framed thereunder, provide that the ownership certificate is given after deposit of amount of compensation or after first installment in the Government Treasury. S.11(6) of the Act and Rule 5(2) of the Rules framed thereunder, provide that the ownership certificate is given after deposit of amount of compensation or after first installment in the Government Treasury. After deposit of compensation amount, certificate is granted in Form LR-VIII, copy whereof is sent to Tehsildar for making necessary entries in the revenue record, as such, learned Additional District Judge, while affirming findings recorded by learned trial Court, has rightly observed that "it is clear that predecessor-in-interest of the plaintiffs obtained certificate of ownership after depositing compensation and it is only thereafter, change came to be effected in the revenue record". 15. Defendants, in rebuttal, did not lead any evidence, however, they tendered in evidence, document Ext. D-1, i.e. copy of judgment and decree dated 25.6.1984, passed by Sub Judge, First Class, Ghumarwin, in case titled Nika Ram vs. Anant Ram, perusal whereof clearly reveals that predecessorin-interest of the plaintiffs Bhotha and Makodu were party in the aforesaid proceedings. Exts. D-2 is the copy of judgment and decree passed in first appeal in the aforesaid case by Additional District Judge, Bilaspur. Ext. D-3 is the copy of order passed by this Court in the Regular Second Appeal upholding judgment and decree passed by learned trial Court. Ext. D-4 is the copy of order dated 25.10.2004 passed by Assistant Collector 1st Grade, Ghumarwin and Ext. D-5 is the copy of order dated 19.12.2003 passed by LRO Ghumarwin. 16. Though, learned Senior Advocate appearing for the plaintiffs strenuously argued that the Compensation Officer did not correctly pass the order and same is not binding upon the successors of Bhotha and Makodu, but since no specific challenge if any, ever came to be laid qua the competence and jurisdiction of Compensation Officer to decide the issue of conferment of the proprietary rights, plaintiffs cannot be permitted to rake up that issue at this stage that too after inordinate delay of thirty years. Once, Compensation Officer had the jurisdiction to hear and try the matter under the Act, order if any, conferring proprietary rights passed by said officer could only be assailed in accordance with law, by way of filing appeal under the Act ibid, within the time stipulated thereunder. Once, Compensation Officer had the jurisdiction to hear and try the matter under the Act, order if any, conferring proprietary rights passed by said officer could only be assailed in accordance with law, by way of filing appeal under the Act ibid, within the time stipulated thereunder. However, in the case at hand, neither the plaintiffs nor their predecessors-in-interest laid challenge, if any, to the order passed by Compensation Officer, who otherwise was proper authority to determine the question of conferment of proprietary rights and as such, learned Courts below rightly concluded that civil court cannot go into the finding as to whether the plaintiffs were entitled for more land and rights were to be conferred upon them under the Act or not? 17. No doubt, aforesaid order of Compensation Officer could be laid challenge even in civil court but within the limitation as prescribed under Article 100 of the Limitation Act, however, as has been taken note herein above, plaintiffs cannot be permitted to rake up the issue of jurisdiction and competence of Compensation Officer to confer proprietary rights on the basis of compromise arrived inter se parties, that too after inordinate delay of thirty years. 18. Since order of Compensation Officer passed in the case at hand, has been held to be legal and valid, submission having been made by Mr. Sood, learned Senior Advocate that there is no limitation for challenging a null and void order, deserves outright rejection. 19. As per Art.100 of the Limitation Act, order of an officer is to be laid challenge within a period of one year from the date of passing of the same. In this case, reliance is placed upon Ajudh Raj and others vs. Moti, (1991) AIR SC 1600 , which has been otherwise taken note by learned first appellate Court: "5. The principle for deciding the question of limitation in a suit filed after an adverse order under a Special Act is well-settled. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted if no particular Article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted if no particular Article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been the subject matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. On the other hand if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eye of law and it is not necessary to set it aside; and such a suit will be covered by Article 65. In the present case the controversial facts have been decided in favour of the plaintiff-appellant and the findings were not challenged before the High Court. The position, thus, is that the plaintiff was the owner in cultivating possession of the land and the defendant Moti was merely a labourer without any right of a tenant or sub- tenant. The question is as to whether in this background it is necessary to set aside the order passed in favour of the respondent under Section 27(4) of the Act before the suit can be decreed or whether the plaintiff can get a decree ignoring the said order as void, in which case the suit undoubtedly will be governed by Article 65." 20. Moreover, record clearly reveals that the plaintiffs or their predecessor-in-interest had definite knowledge with regard to passing of order by Compensation Officer prior to filing of the suit at hand. Litigation inter se Anant Ram and his brothers i.e. Civil Suit No. 320-I/69 and 15/1-83 with regard to the land in question was very much in the knowledge of the predecessor-in-interest of the plaintiffs, who was otherwise party to those proceedings. Aforesaid suit was dismissed vide judgment and decree dated 25.6.1984, against which appeal was filed, which was partly allowed vide judgment and decree dated 21.3.1990. Parties to the lis also went in revision before High Court. 21. Most importantly, defendant No.1 filed an application for partition of suit land, in which orders, Ext. Aforesaid suit was dismissed vide judgment and decree dated 25.6.1984, against which appeal was filed, which was partly allowed vide judgment and decree dated 21.3.1990. Parties to the lis also went in revision before High Court. 21. Most importantly, defendant No.1 filed an application for partition of suit land, in which orders, Ext. D-4 came to be passed, as such, it cannot be said that the plaintiffs or their predecessors-in-interest had no knowledge with respect to order of Compensation Officer, which otherwise appears to have been passed in the presence of predecessor-in-interest of the plaintiffs. Since there is no illegality in the order passed by Compensation Officer, Smt. Sartaju rightly came to be recorded as co-owner of 65/196 share in the suit land. 22. Substantial questions of law are answered accordingly. 23. Now, it would be appropriate to deal with the specific objection raised by the learned counsel representing the defendants with regard to maintainability and jurisdiction of this Court, while examining concurrent findings returned by both the Courts below. Learned counsel for the defendants, invited the attention of this Court to the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264 , wherein the Hon'ble Supreme Court has held: "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 reappreciation 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) 24. 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) 24. Perusal of the judgment, referred hereinabove, suggests that 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. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Court, while exercising powers under Section 100 CPC, is restrained from re-appreciating the evidence available on record. 25. The Hon'ble Apex Court in Parminder Singh versus Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017, has held as under: "14) In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal. 26. It is quite apparent from aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by learned Courts below, rather same are based upon correct appreciation of evidence as such, deserve to be upheld. 27. Consequently, in view of detailed discussion made herein above, I find no merit in the appeal at hand, which is accordingly dismissed. Judgments and decrees passed by both the learned Courts below are upheld. Pending applications, if any, are disposed of. Interim directions, if any, are vacated.