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2021 DIGILAW 531 (HP)

Ved Prakash v. Kamla Devi

2021-08-06

TARLOK SINGH CHAUHAN

body2021
JUDGMENT : Tarlok Singh Chauhan, J. 1. The Plaintiffs are the appellants, who after having lost before both the Courts below, have filed the instant Regular Second Appeal. (Parties hereinafter shall be referred to as the 'Plaintiffs' and 'defendants'). 2. The plaintiffs instituted a suit for declaration, injunction and in alternative for possession against the defendants before the learned Trial Court on the ground that the sale deeds dated 07.07.1995 and 28.12.1995 in favour of defendant No. 1, Smt. Kamla Devi are wrong, null and void and the defendant Nos. 1 and 2 be restrained from encroaching upon the land comprised in Khewat/Khatauni No. 179/272 Khasra No. 926 and 927 measuring 345.95 sq. meters, situated in Muhal Tarna, Mandi town, Tehsil Sadar, District Mandi, H.P. (hereinafter referred to as the 'suit land'). 3. The case of the plaintiffs as pleaded before the lower court is that Amar Chand had previously instituted Civil Suit No. 14 of 1990 for declaration against Girja Nand, Dhananjai and Smt. Titli Devi to the effect that the suit land was jointly owned and possessed by the parties. Said Civil Suit No. 14 of 1990 was dismissed on 13.12.1991 and it was held that Girja Nand had become owner of the suit land by way of adverse possession. After decision of the aforesaid Civil Suit No. 14/1990, Girja Nand moved an application for correction of entries in the revenue record in accordance with the said judgment and decree but in the meantime, Girja Nand died on 12.02.1994, the plaintiffs and proforma defendants are legal heirs of late Girja Nand and they have inherited the suit land of Girja Nand and thus they are owners in possession of the same. The plaintiffs met defendant No. 2 on 19.04.1996 at Sarkaghat when defendant No. 2 told the plaintiff No. 1 that the defendant No. 1 had purchased share of Dhananjai of the suit land and the defendant No. 2 asked the plaintiff No. 1 to get the suit land partitioned. But the plaintiff No. 1 told defendant No. 2 that Dhananjai had no title in the suit land as per aforesaid judgment and decree dated 13.12.1991, therefore, the sale deeds executed by Dhananjai in favour of defendant No. 1 are illegal, null and void. Thereafter the plaintiff No. 1 obtained copies of sale deed. During the intervening night of 11-12 May, 1996, the defendant Nos. Thereafter the plaintiff No. 1 obtained copies of sale deed. During the intervening night of 11-12 May, 1996, the defendant Nos. 1 and 2 behind the back of the plaintiffs constructed wooden khokha on a vacant portion of the suit land. Thereafter the plaintiff No. 1 came from Sarkaghat and he asked the labourers of the defendants to stop construction work on the suit land but they did not stop the same. Hence, the plaintiffs had to institute the suit against the defendants. 4. The defendant Nos. 1 and 2 contested the suit. They asserted in their written statement that the entries in the revenue record showing the defendant No. 1 to be owner in possession of the suit land are correct. Said judgment and decree dated 13.12.1991 were obtained by Girja Nand by suppressing the true facts and as such the same is not executable being time barred. The defendant no. 1 is bonafide purchaser of the suit land for a consideration. The defendant No. 1 is in physical possession of the suit land after purchasing the same from co-owner Dhananjai. The defendant No. 1 had constructed a pacca RCC House of four rooms, prior to the institution of the suit to the knowledge of the plaintiffs. The contesting defendants also assailed the suit on preliminary objections such as estoppel, limitation and valuation of the suit. In nutshell the contesting defendants refuted the case of the plaintiffs and they sought dismissal of the same. 5. The plaintiffs filed replication whereby they again reiterated and reasserted their own case and refuted the case of the defendants as pleaded in the written statement. 6. The learned Trial Court on the basis of the pleadings of the parties had framed the following issues:- 1. Whether the plaintiffs and proforma defendants are absolute owners in possession of the suit land as alleged? OPP 2. Whether the plaintiffs and proforma defendants are only the LRs of deceased Girja Nand as alleged? OPP 3. Whether the plaintiffs and proforma defendants are on the basis of land? OPP 4. Whether the sale deed dated 07.07.1995 and 28.12.1995 in favour of defendant No. 1 are illegal and void as alleged? OPP 5. Whether the plaintiffs are entitled to the relief of injunction as alleged? OPP 6. Whether the plaintiffs are entitled to the relief of possession in alternative, as alleged? OPP 6A. OPP 4. Whether the sale deed dated 07.07.1995 and 28.12.1995 in favour of defendant No. 1 are illegal and void as alleged? OPP 5. Whether the plaintiffs are entitled to the relief of injunction as alleged? OPP 6. Whether the plaintiffs are entitled to the relief of possession in alternative, as alleged? OPP 6A. Whether the defendants have raised construction without permission of M. C, Mandi and Town and Country Planning Department, if so its effect, as claimed? OPP 7. Whether the act and conduct of the plaintiffs are bar to the present suit as alleged? OPD 8. Whether the decree dated 13.12.1991 is time barred? OPD 9. Whether the suit has not been properly valued for the purpose of court and jurisdiction, as alleged? OPD 10. Whether the defendant No. 1 is bonafide purchaser of the suit land for consideration, if so its effect? OPD 11. Relief." 7. The learned trial Court after recording evidence and evaluating the same, dismissed the suit of the plaintiffs vide judgment and decree dated 16.10.2004. 8. Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiffs filed an appeal before the learned first Appellate Court, which came to be dismissed vide judgment and decree dated 21.07.2008. 9. Feeling aggrieved and dis-satisfied with the impugned judgments and decrees passed by both the learned Courts below, the plaintiffs preferred the Regular Second Appeals, which came to be admitted on 26.11.2008, on the following substantial questions of law:- "1. Whether both the Courts below have ignored material and important documentary evidence Ex. PA and Ex. PB judgment and decree in Civil Suit No. 14 of 1990 by misconstruing the expression "decree" and also on the ground that the effect of such findings was not got incorporated by the predecessor-in-interest of the plaintiffs-appellants in the revenue record within the specified period? 2. Whether both the Courts below have gravely erred in law in upholding the validity of the Sale Deeds Ex. PC and Ex. PD, when the seller Shri Dhananjai was bound by the findings recorded in Ex. PA had no subsisting title on the date of sale to the land sold? Have not both the Courts below acted in erroneous and perverse manner in ignoring the effect of Ex. PX and Ex. PX-1 and Ext. D-1 which operated as an estoppel against Shri Dhananjai to assert his title to the property sold? PA had no subsisting title on the date of sale to the land sold? Have not both the Courts below acted in erroneous and perverse manner in ignoring the effect of Ex. PX and Ex. PX-1 and Ext. D-1 which operated as an estoppel against Shri Dhananjai to assert his title to the property sold? 3. Whether both the Courts below have committed grave error of law and jurisdiction in failing to appreciate correctly the provisions of Evidence Act by failing to draw adverse inference against the defendant, in not producing best evidence i.e. defendant No. 1 Smt. Kamla Devi, as well as Shri Dhananjai through whom both the defendants were deriving title? 4. Whether the findings of both the Courts below are patently illegal, erroneous and perverse in holding the defendants to be bonafide purchaser for consideration, in absence of proper pleadings and proof thereof and by misconstruing relevant provisions of Transfer of Property Act? 10. It needs to be noted that when the arguments were heard on 19.08.2019 and 20.08.2019 and thereafter the matter was fixed for 26.08.2019 for further arguments, the defendants/respondents have filed an application under Order 41, Rule 27 read with Section 151 of the CPC being CMP No. 8257 of 2019 for leading additional evidence. CMP No. 8257 of 2019 11. By medium of this application, the applicants/respondents/defendants have sought to place on record copies of the pleadings in the previous suit alongwith the copies of revenue record. The application is contested by the plaintiffs/non-applicants merely on the ground that the documents annexed with the application were already in possession of the applicants/respondents/defendants since the year 1996. 12. As observed above, the documents annexed with the application are pleadings of the previous suit as also the copies of jamabandi, which are the public record and admissible in evidence. The pleadings will enable this Court to decide more effectively the plea of res judicata, as raised by the plaintiff herein, therefore, the application is accordingly allowed. Application stands disposed of. Substantial Question Nos. 1 to 4 13. Since all the questions are intrinsically interlinked and inter connected, therefore, they are taken up together for consideration and are being answered by common reasoning. 14. As a matter may be res judicata between a plaintiff and a defendant, so it may be res judicata as between co-plaintiffs or between co-defendants. Substantial Question Nos. 1 to 4 13. Since all the questions are intrinsically interlinked and inter connected, therefore, they are taken up together for consideration and are being answered by common reasoning. 14. As a matter may be res judicata between a plaintiff and a defendant, so it may be res judicata as between co-plaintiffs or between co-defendants. If in a suit by A against B and C, there is a matter directly and substantially in issue between B and C, and an adjudication upon that matter is necessary to the determination of the suit, the adjudication may operate as res judicata in a subsequent suit between B and C in which either of them is plaintiff and the other defendant. 15. In other words, 'if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the court will try and decide the case, and the co-defendants will be bound; but if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains'. These are the limits within which the doctrine of res judicata should be applied as between co-defendants. 16. For application of doctrine of res judicata between co- defendants, four conditions must be satisfied namely: (i) There must be a conflict of interest between the defendants concerned; (ii) it must be necessary to decide the conflict in order to give the relief which the plaintiff claims; (iii) the question between the defendant must have been finally decided; (iv) the co-defendants were the necessary or property party in the former suit. 17. Where the above four conditions do not exist, the decree does not operate as res judicata. It must, therefore, be that all the persons who have right, title and interest are made parties to the suit and that they should have knowledge that the right, title and interest would be in adjudication and the finding or the decree there in would operate as res judicata to their right, title and interest in the subject matter of the former suit. Even in their absence, a decree could be passed and it may be used as an evidence of the plaintiff's title either accepted or negatived therein. Even in their absence, a decree could be passed and it may be used as an evidence of the plaintiff's title either accepted or negatived therein. The doctrine of res judicata would apply even through the party against whom it is sought to be enforced was not eo-nomine made a party nor entered appearance, nor did he contest the question. 18. However, the doctrine of res judicata between co- defendants must be applied with great care and caution. The reason is that fraud is the extrinsic collateral act which vitiates solemn proceedings of courts of justice. Therefore, in applying the doctrine of res judicata between co-defendants or co-plaintiff care must, of necessity be taken by the court to see that there must in fact be a conflict of interest between the co-defendants or the co-plaintiffs concerned and it is necessary to decide the conflict as in order to give relief which the plaintiff in the suit claimed and the question must have been directly and substantially in issue and was finally decide therein. 19. If those conditions are present then the doctrine of res judicata would apply to the co-defendant even if he did not appear in the earlier suit and contest the question but subject to the qualification that in such a case it must be proved that he had or must be deemed to have had noticed that the relevant question was in issue and would have to be decided. (Ref.:-Chandu Lal v. Khalilur Rahaman, AIR 1950 PC 17 ). 20. Bearing in mind the aforesaid exposition of law, I now proceed to consider the effect of the earlier judgment and decree Ex. PA and Ex. PB that was passed in Civil Suit No. 14 of 1990. (Ref.:-Chandu Lal v. Khalilur Rahaman, AIR 1950 PC 17 ). 20. Bearing in mind the aforesaid exposition of law, I now proceed to consider the effect of the earlier judgment and decree Ex. PA and Ex. PB that was passed in Civil Suit No. 14 of 1990. Amar Chand Plaintiff therein had filed a suit for declaration to the effect that the plaintiff and proforma defendant are also the joint co- sharers in the suit property alongwith the defendants and Mutation No. 53 dated 06.04.1971, irrespective of inheritance of Molak Ram, which ought to have been attested in favour of the parties in equal shares, have wrongly and illegally been sanctioned and subsequent entries incorporated in the revenue record in favour of the defendants in equal shares and on its basis the entries of the revenue record are wrong, incorrect, illegal, void, ab initio and be struck down and cancelled and said mutation be ordered to be attested in favour of parties in equal share and consequential relief, the joint possession of the plaintiff and proforma-defendant of the suit property be confirmed and decree be passed with cost in favour of the plaintiff and proforma defendants. 21. It would be noticed that S/Shri Girja Nand and Dhananjai, both sons of Molak Ram had been reflected as defendants and whereas Smt. Titli Devi wife of Uma Dutt alia Uma Nand son of Molak Ram had been shown as proforma defendant. 22. In the body of the plaint, it was averred that the Molak Ram having four sons, namely, S/Shri Amar Chand, Girja Nand, Dhanajai and Uma Dutt and on his death his property had been mutated in favour of aforesaid legal heirs and mutation of the property had been effected vide Mutation No. 53, dated 06.04.1971, which ought to have been entered in favour of the parties in equal shares but it has been attested wrongly, illegally and by misrepresentation and concealment of true facts in favour of defendant Nos. 1 and 2 in equal shares. 23. It is not in dispute that it is only Girja Nand, defendant No. 1, who had contested the suit by filing written statement. It was averred that the property which was owned and possessed by Molak Ram was rightly succeeded by his LRs. 1 and 2 in equal shares. 23. It is not in dispute that it is only Girja Nand, defendant No. 1, who had contested the suit by filing written statement. It was averred that the property which was owned and possessed by Molak Ram was rightly succeeded by his LRs. But it was denied that mutation related to the properties had been entered and got attested wrongly and illegally by mis-representation and concealment of facts by the defendants "rather the said mutation and subsequent entries thereto were fully in the knowledge of the other interested parties but the suit property was in possession of the replying defendants". It was further contended that the replying defendant i.e Girja Nand was in possession of the suit property from the very beginning and considered himself to be its owner as his father and all other family members had left it in his favour. The replying defendant had successfully constructed house upon the said land. None of the plaintiff and other defendants objected to that, though defendant No. 2 was residing and managing the affairs of replying defendant of the suit property in his absence. It was denied that the plaintiff and other defendants are in joint possession with defendant No. 1 Girija Nand. It was also averred that in case the plaintiff and other defendants found to be co-owners with the replying defendant, they have been ousted and their rights have been disclaimed by the replying defendants, who are in continuous, open and peaceful possession to the knowledge of other alleged co-sharers since 1976-77. 24. Having set out the pleadings in the previous suit, it would now be necessary to refer to Issue No. 8 framed therein, which reads as under:- "8. Whether the defendants have become owners of the suit property by virtue of adverse possession? OPD" 25. While answering this issue, it was held as under:- "The evidence shows that the plaintiff being out of possession of the suit property had demanded his share from defendant No. 1, who refused to give him share. It means that animus is positive to the exclusion of the plaintiff. The possession of defendant No. 1 is open, continuous, uninterrupted and hostile to the plaintiff and accordingly, the issue no. 8 was decided in favour of defendant No. 1 Girija Nand". 26. It means that animus is positive to the exclusion of the plaintiff. The possession of defendant No. 1 is open, continuous, uninterrupted and hostile to the plaintiff and accordingly, the issue no. 8 was decided in favour of defendant No. 1 Girija Nand". 26. It would be noticed that in the previous litigation, the plaintiff Amar Chand and proforma defendant Smt. Titli Devi were on the same side whereas Girija Nand and Dhananjai were supposed to be on the opposing side. No doubt the written statement filed only on behalf of defendant No. 1 Girija Nand but the nature of the defence taken therein by Girija Nand shows that he did try to set up title in himself to the exclusion of defendant No. 2 Dhananjai, but then it was not necessary to decide the conflict between the defendants so as to give relief which the plaintiff had claimed. 27. That apart, the specific findings of the learned courts below, as reproduced above, would go to show that the findings of adverse possession have been recorded in favour of defendant No. 1 to the exclusion of the plaintiff alone and not defendant No. 2 Dhananjai. 28. Therefore, the learned Courts below have rightly concluded that the findings in the previous suit operate as res judicata between the co-defendants. In such circumstances, it cannot be said that the learned Courts below have ignored the documentary evidence Ext. PA and Ex. PB. 29. Now, the further moot question is whether the respondents are bona fide purchaser on the basis of the sale deed Ext. PC and Ext. PD. 30. As already observed above, the judgment and decree Ext. PA and Ex. PB do not operate as res judicata against Dhananjai and, therefore, Dhananjai being one of the co-sharers well within his right to sell property Ext. PC and Ext. PD. 31. As regards the effect of the application Ex. PX moved by Dhananjai for setting aside the ex parte decree and the same had been dismissed vide Ext. PX-1 for want of prosecution, would not operate as estoppel so as to defeat his lawful claim. 32. Learned counsel for the appellants has miserably failed to prove that how the same would operate as estoppel against Dhananjai to his title of the suit property sold. 33. PX-1 for want of prosecution, would not operate as estoppel so as to defeat his lawful claim. 32. Learned counsel for the appellants has miserably failed to prove that how the same would operate as estoppel against Dhananjai to his title of the suit property sold. 33. As regards drawing of adverse inference against the defendants for not producing respondent No. 1 Kamla Devi as alleged, Dhananjai through whom both the defendants derived the title, I really do not find any merit in such contention. 34. As observed above, the revenue record had consistently reflected the names of Girija Nand and Dhananjai as owners of suit land in dispute. Therefore, in the peculiar facts and circumstances of the case, it was not necessary for the defendant to examine either Kamla Devi or for that matter Dhananjai through whom both the defendants derived title. Learned Trial Court have elaborately considered the pleadings as also the evidence led by the parties and the law on the subject, including the provisions of the Transfer of Property Act, therefore, no fault can be found with the findings so recorded by the learned Courts below. 35. As regards the plea of bonafide purchaser, as already observed above, revenue record consistently reflected the names of Girja Nand and Dhananjai to be owners and the appellants have miserably failed to convince this Court as to what further inquiries the respondents were required to undertake before purchasing the property, which could even remotely indicate that it was Girija Nand alone who was the owner of the land. 36. Taking the case of the appellants at their best that there was a dispute between the defendants Girja Nand and Dhananjai, however, it would be noticed that such dispute inter se them had not at all been decided by the learned Courts below and only the dispute between the plaintiff and defendant No. 1 had been adjudicated, therefore, such findings obviously cannot operate as res judicata with the co defendants with subsequent litigation. 37. The judgments rendered by the learned Courts below are neither contrary to the evidence available on record nor perverse. 37. The judgments rendered by the learned Courts below are neither contrary to the evidence available on record nor perverse. It is settled law that a judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court's entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse. Substantial questions of law are answered accordingly. 38. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, so also pending applications, if any. Parties are left to bear their own costs.