Himachal Pradesh High Court
Yash Pal & Ors vs Meena Ram (Since Deceased) Through His ... on 6 December, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 330 of 2005 .
Reserved on: 02.12.2019 Date of decision: 06.12.2019.
Yash Pal & Ors. ...Appellants.
Versus
Meena Ram (since deceased) through his LRs ...Respondents
Coram r
Whether approved for reporting?1
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Yes.
For the Appellants: Mr. K. S. Kanwar, Advocate.
For the Respondents: Mr. Rajesh Verma, Advocate, for respondents No. 1(a) and 1(b).
Tarlok Singh Chauhan, Judge Defendants are the appellants, who aggrieved by the judgments and decrees passed by both the learned Courts below, have filed the instant Regular Second Appeal.
Parties hereinafter shall be referred to as the 'Plaintiff' and 'Defendant'.
2. The plaintiff filed a suit for declaration and permanent prohibitory injunction against Shri Santan Singh predecessor-in-interest of the appellants qua land comprising Khata No. 13/11, Khatauni No. 78, Khasra Nos. 138, 142, 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 2 494/141, 144, 145, 147, 149, 150 to 154, measuring 44-11 bighas situate in village Chortia Banogta, pargana Sain, Tehsil .
Nahan, as gair maurusi tenant.
3. The case of the plaintiff was that he was recorded as gair maurusi tenant of the suit land under State of Himachal Pradesh in the year 1966-67 and thereafter conferred proprietary rights of the suit land vide mutation No. 66, dated 28.09.1968 under the H.P. Big Land Estate Abolition and Land Reforms Act, 1953 on payment of Rs. 620.09 paise as compensation and thus had become owner of the suit land and since then had been in cultivatory possession of the same as owner. It was averred that the father of the defendant was politically influential person, who in connivance with revenue staff manipulated oral sale of 3/4th share of the suit land from the plaintiff in his favour on the same day when the proprietary rights were conferred upon the plaintiff vide mutation No. 66, dated 28.09.1968. The subordinate revenue staff attested mutation No. 67 on 28.09.1968 showing sale of 3/4th share of the suit land in favour of Jaswant Singh father of the defendant. According to the plaintiff, he never sold 3/4th share out of the suit land to the Jaswant Singh nor possession was delivered to him. It was further averred that neither Jaswant Singh nor the defendant ever remained in possession of the suit land. It was due to the illegal, fraudulent ::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 3 and wrong attestation of mutation No. 67 and reflection of the same in the subsequent revenue entries, casts a cloud on the .
right, title and interest of the plaintiff. Hence, the suit for declaration and injunction.
4. The defendant contested the suit by filing written statement wherein he took preliminary objection of maintainability and locus standi of the plaintiff in respect of 3/4th share of the suit land, not disclosing the particulars of alleged fraud as was required under Order 6 Rule 4 CPC, non-joinder of necessary parties, concealment of material facts, estoppel on account of act, conduct and acquiescence of the plaintiff, limitation, cause of action, valuation and jurisdiction etc. were raised.
5. On merits, the defendant denied the allegations of the plaintiff. It was admitted by the defendant that the plaintiff was a tenant over the suit land under the State of Himachal Pradesh and proprietary rights were conferred upon him by the Compensation Officer, Renuka Ji and patta was issued in his favour vide order dated 01.04.1967. It was further averred that the plaintiff raised a loan from the father of the defendant and he sold 3/4th share out of the suit land to Jaswant Singh for a sale consideration of Rs.930.00, for which mutation No. 67 was attested in favour of the father of the defendant. That during the ::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 4 life time, father of the defendant remained in possession of 3/4th share of suit land and after his death the defendant was in .
cultivatory possession. Thereafter, the revenue entries showing the ownership and possession of the father of the defendant were correct. It was denied that any fraud had been played on the plaintiff.
6. The plaintiff filed replication in which he denied the
7.
r to stand taken by the defendant and reiterated his stand taken in the plaint.
The learned Trial Court on 05.09.2001 framed the following issues:-
"1. Whether the plaintiff is owner in possession of suit land and the mutation No. 67 dated 28.09.1968 attested in favour of the defendant is fraudulent, illegal and inoperative, as alleged? If so, its effect? OPP
2. Whether the suit in the present form is not maintainable, as alleged?
3. Whether the plea of fraud without disclosing the particulars of fraud, as required under Order 6 Rule 4 CPC is not tenable, as alleged?OPD
4. Whether the suit is bad on account of non-joinder of necessary parties, as alleged?OPD
5. Whether the plaintiff has concealed the material facts from the Court, if so its effect?OPD
6. Whether the plaintiff is estopped by his act, deed, conduct, commission and omission to file the present suit, as alleged?OPD
7. Whether the suit is hopelessly time barred, as alleged? OPD ::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 5
8. Whether no enforceable cause of action accrued to the plaintiff to file the present suit, as alleged?OPD .
9. Whether the suit of the plaintiff is under valued as alleged?OPD
10. Whether the suit is false and frivolous and liable to be dismissed, as alleged?OPD
11. Whether the suit has not been framed in accordance with the instructions of the Hon'ble High Court, as alleged?OPD
12. Relief.
8. After recording evidence and evaluating the same, the learned trial Court decreed the suit of the plaintiff and the appeal filed against the said judgment and decree also came to be dismissed, constraining the defendant to file the instant appeal.
9. On 06.07.2005, the appeal came to be admitted on the following substantial questions of law:-
1. Whether the Courts below have misconstrued, misinterpreted and misapplied Ex. P3 Mutation No. 66 dated 28.09.1968 and Ex.P-4 (Ex. D2) Mutation No. 67 dated 28.09.1968 in holding that the plaintiff did not sell by way of oral sale 3/4th share out of the suit land in favour of Jaswant Singh?
2. Whether the courts below have drawn impermissible inference regarding ignorance of plaintiff of oral sale from material on record, more particularly, Mutation Ex.D-10 dated 12.04.1982 for sale of land by the plaintiff in favour of Het Ram, Ex.D6/A rapat Rojnamcha, Ex.D12, warrant of possession delivering possession of 33-1 Bighas of land to Santan Singh and Ex.D14 statement of plaintiff admitting ::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 6 delivery of possession to Santan Singh of 33-1 Bighas of land and have thus erred in decreeing the suit?
.
3. Whether plea of fraud taken by the plaintiff regarding the oral sale of 3/4th share of the suit land in favour of Jaswant Singh is in accordance with order 6 Rule 4, CPC?
4. Whether the Courts below have erred in holding that suit is within time even though suit has filed after about 33 years of attestation of oral sale mutation No. 67 Ex.P4 (Ex.D2) on 28.09.1968?
10. The parties are ad idem and even otherwise it is more than settled that the rights of the parties can be adjudicated only in case the lis is instituted in time.
Question No. 411. Therefore, in the given circumstances, Question No. 4 is taken up first because in case the same is answered in favour of the appellants, then this Court need not to answer the other questions as the suit then would be liable to be dismissed being time barred.
12. It would be noticed that learned Trial Court had framed a specific issue qua limitation that is Issue No. 7, which is once again reproduced herein as under:-
7. Whether the suit is hopelessly time barred, as alleged?
OPD
13. The learned Trial court answered the said issue by according reasons, which are contained in para 35 of the judgment which reads as under:-
::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 7"35. It is alleged by the defendant that the suit of the plaintiff is hopelessly time barred. No doubt, the mutation .
to the extent of 3/4th share in the suit land was attested in favour of Shri Jaswant Singh, father of defendant on 28.09.1968 and, thereafter, subsequent revenue entries qua the suit land to the extent of 3/4th share are shown in favour of defendant from the time of his father deceased Jaswant Singh, but it is throughout case of the plaintiff that he remained owner in possession of suit land and his possession was only disturbed when the defendant started interference in his possession over the suit land in the month of April, 2001 and, thereafter, he obtained copy of revenue record and came to know that the suit land to the extent of 3/4th share has been shown in the ownership and possession of defendant from the time of his father. As such, thereafter, he filed this suit for declaration against the defendant. Moreover, this mutation order No. 67, dated 28.09.1968 appears illegal on the face of it, because it was attested in favour of Jaswant Singh father of defendant on the same date on 28.09.1968, when the proprietary rights of suit land were conferred upon the plaintiff when he made compensation of the same. Therefore, this illegal order can be challenged at any time when it came to the knowledge of party aggrieved. In these circumstances, I am of the opinion that the suit of the plaintiff is not barred by law of limitation. I, accordingly, decide this issue against the defendant.
14. Record further reveals that the issue of limitation was again raised before the learned first Appellate Court, however, the same was rejected by according the following reasons:-
::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 8"23. The cumulative effect of the entire evidence, as referred to above, has been that the plaintiff never sold .
his 3/4th share of the suit land in favour of the father of the defendant Jaswant Singh and that the plaintiff is owner in possession of the suit land and the learned Trial Court rightly held that the mutation No. 67 Ext.P4 sanctioned on 28.09.1968 in favour of Sh. Jaswant Singh father of the defendant on the basis of the oral sale is illegal, null and void and the subsequent revenue entries made on the basis of this illegal mutation order, being illegal are not binding on the plaintiff. Further the learned Trial Court also rightly came to the conclusion that the suit of the plaintiff is within limitation as the defendant started interference in the possession of the plaintiff over the suit land in the month of April, 2001 and after obtaining the copy of revenue record, he came to know that the suit land to the extent of 3/4th share has been shown in the ownership and possession of the defendant and immediately he has filed the present suit. Therefore, it cannot be said that the suit of the plaintiff is time barred in view of the overwhelming evidence on record as discussed above. In other words, the impugned judgment and decree are perfectly sustainable. The point under discussion is accordingly held in the negative."
15. To say the least, the findings recorded by both the learned Courts below are against the settled proposition of law that even a void order or decision cannot be said to be non-
existent in all cases and in all situations. Ordinarily, such an order will, in fact, be effective inter se parties until it is successfully avoided or challenged in the higher forum.
::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 916. A Bench of Hon'ble three Judges of the Hon'ble Supreme Court in State of Punjab and others vs. Gurdev .
Singh, 1991 (4) SCC 1, held that even an action which is ultra vires against the principles of natural justice and void remains operative unless and until it is declared to be so by the Court. It is only consequent upon such declaration that it automatically collapses and there is no need for Court to quash it. However, in case the same is not challenged within the stipulated time, then the suit filed after the period of limitation would be liable to be dismissed on the ground of bar of limitation.
17. It shall be apposite to refer to the relevant observations as contained in paras 7 to 10 of the judgment, which reads as under:-
7. In the instant cases, the respondents, were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so ::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 10 and it collapses automatically. It need not be set aside.
The aggrieved party can simply seek adeclaration that it is .
void and not binding upon him. A declaration merely declared the existing state of affairs and does not 'quash' so as to produce a new state of affairs.
8. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, 1956 AC 736 at p. 769 Lord Radcliffe observed:
"An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
9. Apropos to this principle, Prof. Wade states:"the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for their also the order can effectively be resisted in law only by obtaining the decision of the Court (See: Administrative Law 6 th Ed. p.
352). Prof. Wade sums up these principles:
"The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiffs lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the'void'order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another." (Ibid p. 352)
10. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach ::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 11 the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must .
approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.
18. Similar reiteration of law can be found in the following judgments:-
1. Punjab National Bank vs. Rajinder Singh, 1999 SCC (L&S) 664
2. Sultan Sadik vs. Sanjay Raj Subba and others (2004) 2 SCC 377
3. Pune Municipal Corpn. vs. State of Maharashtra and others (2007) 5 SCC 211
4. Madan Kishore vs. Maj. Sudhir Sewal and others (2008) 8 SCC 744
5. Krishna Devi Malchand Kamthia and others vs. Bombay Environmental Action Group and others (2011) 3 SCC 363.
6. Board of Trustees of Port of Kandla vs. Hargovind Jasraj and another (2013) 3 SCC 182
19. In Sultan Sadik's case supra, the Hon'ble Supreme Court observed that once an order is declared non est by the court only then the judgment of nullity would operate erga omnes i.e. for and against every one concerned. Such a declaration is permissible if the Court comes to the conclusion that the order suffers from patent and latent invalidity.
20. Thus, from the above, it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the Court for seeking such ::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 12 declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the Court in a given .
circumstances, the Court may still refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose for for one person, it may not be so for another purpose or another person.
21. The legal position is best explained by the Hon'ble Supreme Court in Krishnadevi Malchand Kamathi and other vs. Bombay Environment Action Group and others (2011) 3 SCC 363, wherein it was held as under:-
"It is settled legal proposition that even if an order is void, it requires to be so declared by a competent Forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void.
In the State of Kerala v. M. K. Kunhikannan Nambiar Menjeri Manikoth Naduvil (1996) 1 SCC 4365, Tayabhai M. Bagasarwalla vs. Hind Rubber Industries Pvt. Ltd. (1997) 3 SCC 443, M. Meenakshi vs. Metadin Agarwal (2006) 7 SCC 470 and Sneh Gupta vs. Devi Sarup (2009) 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate Forum."
22. Reverting back to the facts, it is not in dispute that vide mutation No. 67 (Ext. P4), 3/4th share out of the suit land was mutated in favour of Jaswant Singh by way of sale in the ::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 13 revenue record. No doubt, the mutation in itself does not confer title but then it would be noticed that the plaintiff was fully aware .
of the revenue entries and his title being under cloud because after attestation of the Mutation No. 67 on 28.09.1968, there are consistent revenue entries in form of jamabandis in favour of Jaswant Singh or Santan Singh to which presumption of truth is attached.
23. Not only this, the plaintiff himself had sold land to Het Ram on the basis of mutation Ext.D10, which was entered and sanctioned on 12.04.1982. This mutation also reveals that plaintiff was the owner only to the extent of 11-1 bighas as against the total area of 44-11 bighas of land out of which he had sold 5 bighas. This sale deed could not have been executed in absence of any revenue record.
24. However, even if sale deed is ignored for a moment even then, it would be noticed that son of the plaintiff had taken loan from Punjab National Bank, Parera, in which transaction, the plaintiff had stood guarantor and copy of jamabandi of the holding of the plaintiff was attached alongwith the loan paper and at that time the total holding of the plaintiff after selling five bighas was about six bighas.
25. Lastly and more importantly, it would be noticed that the predecessor-in-interest of the defendant had initiated ::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 14 partition proceedings against the plaintiff, in which the mode of partition was prepared way back on 28.05.1992. Once partition .
proceedings had been initiated then obviously the plaintiff was fully aware of the fact that predecessor-in-interest of the defendant is a co-owner/co-sharer of the suit land, that is why he is seeking partition, yet he kept mum and it is only after 33 years, after the attestation of mutation No. 67 of the sale of 3/4th share in the suit land on 28.09.1968, that the plaintiff approached the Civil Court by filing the instant suit, which as stated above was hopelessly time barred.
26. At this stage, learned counsel for the plaintiff would argue that since he was in possession of the entire land, therefore, there was no need for him to have assailed mutation proceedings till and so long no active threat to his title.
27. Strong reliance is placed on the judgment rendered by this Court in RSA No. 261 of 1996, in case title as Shiam Singh and others vs. Chaman Lal and others, wherein it was observed as under:-
13. Coming to substantial question of law No.4, Section 46 of the H.P. Land Revenue Act shows that if any person considers himself aggrieved as to any right of which he is in possession by an entry in a record-of-rights or in a periodical record, he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1963.::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 15
14. It is well settled that for a suit for declaration, referred to in Section 46, limitation begins to run not .
from the date of the entry affecting the right of the person concerned, but from the date when he feels aggrieved by the entry and it is the satisfaction of such person as to when does he feel aggrieved. Defendant cannot be heard to say that he (the plaintiff) felt aggrieved by the entry at some earlier point of time or when the entry was actually made.
15. Learned counsel for the appellants submitted that the plaintiffs-respondents were out of possession of the suit land and, hence, their suit was not covered by the provision of Section 46 of H.P. Land Revenue Act.
Submission is misconceived. Section 46 does not speak of physical possession of the subject matter or the land with respect to the entry of which a person is aggrieved, but the right of the plaintiff. The person should be in possession of the right and not the land, with respect to the entry of which he is aggrieved. Predecessors-in- interest of the plaintiffs, namely Prem Singh, Kushal Singh and Nand Lal were the real brothers. They were recorded as joint tenants, though Nand Lal was being recorded in exclusive possession as Hissedaar (one of the co-sharers/co-tenants).
16.It is well settled proposition of law that possession of a co-sharer is the possession of all. A co-sharer in exclusive possession holds the property for himself on his own behalf and also on behalf of the co-sharers not in physical possession. Such a co-sharer is an agent of other co- sharers, who are out of possession, in regard to their shares in the joint property. In view of this legal position, plaintiffs are to be presumed to be co-sharers with the defendants. This is especially so when the defendants-
::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 16appellants have not taken the plea of ouster of the plaintiffs-respondents. Question is answered accordingly.
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28. I have gone through the judgment and find that the same is not applicable to the facts of the present case. In Shiam Singh's case (supra) the parties were admittedly co-sharers and it is well settled that possession of one co-sharer is possession of all co-sharers. It was in this background that this Court held that limitation would not begin to run from the date of entry effecting the right of the person concerned, but from the date when he feels aggrieved by an entry.
29. Whereas in the instant case, it is not merely a paper entry that is in question. Firstly, the plaintiff was fully aware of the fact that for the last 33 years, he is owner only to the extent of about 11 bighas whereas 3/4th share of the suit land had been duly mutated in favour of the defendant. These facts came to his notice at the time when he sold a part of the suit land measuring about 5 bighas to Het Ram and thereafter when the plaintiff stood guarantor in the loan availed by his son from the Punjab National Bank of the remaining six bighas land.
30. In addition thereto, once partition proceedings had been initiated and ultimately culminated into a mode of partition in the year 1992, it was evidently clear to the plaintiff that his title had already come under a serious cloud and threat. Once there is a cloud casts upon the title and legal character of the ::: Downloaded on - 06/12/2019 20:30:44 :::HCHP 17 plaintiff then he was required to approach the Court to dispel the same that too within the prescribed period.
.
The question of law is accordingly answered in favour of the defendants/appellants.
31. Since, Question No. 4 has been answered in favour of the appellants/defendants, this Court need not answer other questions of law that have otherwise rendered academic in view
32.
r to of the non-maintainability of the suit being hopelessly time barred.
Accordingly, the appeal is allowed and the judgments and decrees passed by the both the learned Courts below are set aside. Pending application(s), if any also stands disposed of.
6th December, 2019 (Tarlok Singh Chauhan)
(sanjeev) Judge
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