Himachal Pradesh High Court
Baldev Singh And Others vs Of on 22 March, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 198 of 2006 a/w RSA No. 199 of 2006.
Reserved on: 08.03.2017 .
Decided on: 22.03.2017.
1. RSA No. 198 of 2006 Baldev Singh and others ....Appellants.
Versus of Ranjit Singh and others ... Respondents.
2. RSA No. 199 of 2006 Baldev Singh and others ....Appellants.
rt Versus
Ranjit Singh and others ... Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No. For the appellants in both : Mr. Ramakant Sharma, Sr. Advocate appeals with Mr. Basant Thakur, Advocate.
For respondents No. 1 to : Mr. Rajnish K. Lal, Advocate vice 3, 5 and 6 in both appeals. Mr. Sanjeev Sood, Advocate.
Ajay Mohan Goel, Judge As both these appeals arise out of adjudication made in two appeals by learned First Appellate Court arising from the common judgment and decree passed by the Court of learned Civil 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 2Judge (Jr. Divn.) Barsar, District Hamirpur, in Civil Suit No. 253/2000, dated 08.12.2003, hence both these appeals are being decided together by a common judgment.
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2. By way of these appeals, the appellants/plaintiffs have challenged the judgment and decree passed by the Court of learned District Judge, Hamirpur, in Civil Appeal No. 08 of 2004 and Civil Appeal No. 02 of 2004, dated 24.01.2006, vide which, learned of Appellate Court dismissed the appeal filed by the present appellants/plaintiffs against the judgment and decree passed by the rt Court of learned Civil Judge (Jr. Divn.) Barsar, District Hamirpur in Civil Suit No. 253/2000 dated 08.12.2003 and allowed the appeal so filed by the respondents/defendants against the judgment and decree passed by the learned trial Court in Civil Suit No. 253/2000 dated 08.12.2003.
3. Brief facts necessary for the adjudication of this case are that appellants/plaintiffs (hereinafter referred to as 'plaintiffs') filed a suit praying for decree of possession qua suit land comprised in Khata No. 65, Khatauni No. 108, Khasra Nos. 187, 200, 202, 203, 204, 205, 206 and 207, measuring 6 Kanals 13 Marlas, situated in village Dalchera, Mouza Dhatwal, Tehsil Barsar, District Hamirpur (H.P.) as well as for the declaration that they and proforma defendants were owners as co-sharers to the extent of 2 Kanalas 17 Marlas of land ::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 3 which was 255/360 share out of land comprised in Khata No. 68, Khatauni No. III, Khasra Nos. 210, 211, 212, 216, measuring 4 Kanals 17 Marlas, situated in village Dalchera, Mouza Dhatwal, Tehsil .
Barsar, District Hamirpur (H.P.) and that entries reflecting defendants No. 1 to 6 as non-occupancy tenants in the revenue records were wrong and illegal. Plaintiffs also prayed for a consequential relief of possession by way of partition of the suit land. According to the of plaintiffs, their predecessor in interest i.e. Mohru alias Mohra, Saugadar, Sudama, Gulzari and Wazira, who were brothers, owned rt landed property at village Hambewal, Tehsil Anandpur Sahib, District Ropar, (Punjab) and also in village Dalchera, Mouza Dhatwal, Tehsil Barsar, District Hamirpur (H.P.) and in a family partition, Shri Saugadar, predecessor-in-interest of the defendants had started looking after land which came in the share of plaintiffs and proforma defendants. As per plaintiffs, suit land was ancestral originating from one Shri Uttam Singh and the property in fact was being looked after by the defendants and their predecessor-in-interest as member of joint family. It was further the case of the plaintiffs that before consolidation, land comprised in Khata No. 65 was assigned to them whereas land comprised in Khata No. 68 came to the share of other co-owners including the defendants. As per plaintiffs, they requested the defendants to hand over the possession of the land comprised in ::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 4 Khata No. 65 and to divide the land comprised in Khata No. 68 but this was not done by the defendants and it was in these circumstances that the suit was filed.
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4. By way of the written statement, defendants contested the claim of the plaintiffs and denied any relationship within 3-5 degrees with the plaintiffs. According to the defendants, plaintiffs had settled in village Ambewal, Tehsil Anandpur Sahib, District Ropar (Punjab) of since last three generations and had never visited the suit land nor participated in mesne profit/payments of land revenue etc. of the rt same. It was further the case of the defendants that earlier the suit land was in possession of father of the defendants and after his death, defendants were coming in possession of the same. Their possession over the same was as owners of the same on payment of land revenue and the same was thus always adverse to the plaintiffs. According to the defendants, since they were in possession over the suit land, the said possession of theirs was always open, peaceful and hostile to the knowledge of the plaintiffs and there was a complete ouster of the plaintiffs from the suit land and in fact some of the suit land was exclusively owned by the defendants and as such, plaintiffs had no right, title or interest over the suit land.
5. On the basis of pleadings of the parties, learned trial Court framed the following issues:-
::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 5"1.Whether the plaintiffs are entitled to a decree for possession of thesuit land as alleged? OPP.
2.Whether the revenue entries are wrong and illegal as alleged? OPP.
3.Whether the plaintiffs are entitled to a decree for possession .
by way of partition as claimed?OPD
4.Whether the suit is not maintainable in the present form?OPD
5. Whether the suit is time barred?OPD
6. Whether the plaintiffs are estopped from filing the suit by their act and conduct?OPD of
7. Whether the suit is bad for non-joinder of the necessary parties?OPD
8. Whether the defendants have become the owners of the suit rtland by way of adverse possession as alleged. If so, its effect?OPD
9. Whether this Court has no jurisdiction to hear and decide the present suit? OPD
10. Whether there was a family settlement as alleged. If so, its effect? OPP
11. Whether the suit land is ancestral as alleged. If so, its effect?OPP
12. Whether the plaintiffs are entitled to the declaration prayed for?OPP
13. Whether the plaintiff have a cause of action?OPP
14. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
15. Relief."
6. On the basis of evidence led by the parties both ocular as well as documentary in support of their respective cases, the issues so framed were answered by the learned trial Court in the following manner:-
::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 6 "Issue No.1 : Yes.
Issue No. 2 : Yes.
Issue No. 3 :No.
Issue No. 4 :No.
Issue No. 5 :No.
Issue No. 6 :No.
Issue No. 7 :No.
.
Issue No. 8 :No.
Issue No. 9 :No.
Issue No. 10 :No.
Issue No. 11 :Partly Yes ( No effect).
Issue No. 12 :Yes.
Issue No. 13 :Yes.
Issue No. 14 :Yes.
Relief :The Suit of the plaintiff is partly
decreed as per operative part of the
of
Judgment."
7. Learned trial Court vide its judgment and decree dated 08.12.2003 partly decreed the suit of the plaintiffs for possession of rt land comprised in Khata No. 65, Khatauni No. 108, Khasra Nos. 187, 200, 202, 203, 204, 205, 206 and 207, area measuring 6-13 Kanals and the entries in revenue record showing the defendants as non-
occupancy tenants over the suit land were declared as wrong and illegal. Same and except the said relief, no other relief so prayed for by the plaintiffs was granted in their favour.
8. Against the judgment and decree so passed by the learned trial Court, two appeals were preferred before the learned Appellate Court. Appeal No. 8 of 2004 was filed by the plaintiffs feeling aggrieved by the fact of their suit not being decreed in totality, whereas Appeal No. 2 of 2004 was filed by the defendants feeling aggrieved by the partial decreetal of the suit in favour of the plaintiffs by the learned trial Court.
::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 79. Learned Appellate Court by way of judgment and decree dated 24.01.2006 allowed Appeal No. 2 of 2004 filed by the defendants and set aside the judgment and decree passed in favour of .
the plaintiffs by learned trial Court. Learned Appellate Court declared defendants No. 1 to 6 to be owners in possession of the suit land described in Khata/Khatauni No. 65/108, Khasra Nos. 187, 200 and 202 to 207, measuring 6-13 Kanals of Revenue Estate, Dhalchera by of adverse possession. Learned Appellate Court further dismissed the suit filed by the plaintiffs qua said portion of the land. It was held by rt the learned Appellate Court that land described in Khata/ Khatauni No. 68/111, Kita 4, measuring 4 Kanals, recorded in jamabandi for the year 1994-95 was liable to be partitioned by the Court of competent jurisdiction as per share of the parties.
10. Feeling aggrieved by the judgment and decree so passed by the learned Appellate Court, the plaintiffs filed the present appeals.
11. Mr. Ramakant Sharma, learned senior counsel appearing for the appellants has argued that the judgment passed by the learned Appellate Court is not sustainable in the eyes of law because learned Appellate Court while dismissing the appeal filed by the present appellants and while allowing the appeal filed by the respondents/ defendants has erred in not appreciating that the said Court was not adjudicating a Civil Suit as the Court of first instance but it was ::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 8 adjudicating upon the appeals so filed before it by the aggrieved parties and in this background, it was incumbent upon learned Appellate Court to have had taken into consideration the reasoning .
given by the learned trial Court while arriving at its findings and after having distinguished the reasons so given by the learned trial Court, learned Appellate Court ought to have had adjudicated upon the appeals. According to Mr. Sharma this has not been done by learned of Appellate Court. Mr. Sharma further argued that the contentions raised by the present appellants in their appeals filed before learned rt Appellate Court neither find mention in the judgment passed by the learned Appellate Court nor there is any adjudication on the grounds of appeals which were raised by them before learned Appellate Court.
On this count alone, Mr. Sharma, learned senior counsel appearing for the petitioner has argued that the judgment passed by learned Appellate Court was liable to be set aside and the case was liable to be remanded back to learned Appellate Court for adjudication afresh by taking into consideration the grounds of appeal on the basis of which the judgment and decree passed by the learned trial Court was assailed. Similarly, Mr. Sharma, also argued that no reasoning was given by learned Appellate Court as to why the appeal filed by the plaintiffs was being dismissed and no reasoning was coming forth in ::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 9 the judgment as to why partial decree passed by learned trial Court was being set aside.
12. Mr. Rajnish K. Lal learned counsel appearing for the .
respondents, on the other hand, argued that there was no infirmity with the judgment passed by the learned Appellate Court and learned Appellate Court has taken into consideration all the aspects of the matter including the contentions raised by the respective parties and of only thereafter learned Appellate Court dismissed the appeal filed by the present appellants and accepted the appeal filed by the respondents.
rt
13. Appeal No. 198 of 2006 was admitted on 26.04.2010 on the following substantial question of law:
"Whether the findings of the Court below are a result of complete misreading, misinterpretation of the evidence and material on record and against the settled position of law?"
14. Appeal No. 199 of 2006 was admitted on 27.06.2011 on the following substantial questions of law:
1. Whether the learned lower appellate Court is right in not considering the consistent revenue entries showing the appellants/plaintiffs to be owners in possession of the land in dispute in Exhibit P1 to P28.
2. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as misappreciation of the statement of PW1 Dhian Singh.::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 10
3. Whether the learned lower Appellate Court is right in not considering the provisions of Article 65 of the Limitation Act.
4. Whether the learned lower appellate Court is right in not considering the law laid down by the Apex Court on the .
permissibility of plea taken by the defendants as in the present case the defendants had taken the plea of non- occupancy tenants as well as in the alternative of adverse possession when both pleas are self-contradictory and are not permissible in law."
15. I have heard the learned counsel for the parties and also of gone through the records of the case as well as the judgments passed by both the learned Courts below.
rt
16. While setting aside the judgment and decree passed by the learned trial Court, what has been observed by the learned Appellate Court in para 19 of the judgment is as under.
"The learned Civil Judge had not rightly appreciated the oral and documentary evidence placed on record and had erroneously answered Issues No. 1, 12 and 13 in favour of the plaintiffs. The defendants No. 1 to 6 had been owners in possession of the land described in Khata/Khatauni No. 65/108, Kita 8, measuring 6 Kanals 13 Marlas of Revenue Estate, Dalchera by adverse possession, point No. 1 is answered against the plaintiffs. Point No. 2 is partly answered in favour of the defendants No. 1 to 6 and partly against them."
17. A perusal of the judgment passed by the learned trial Court demonstrates that it had given elaborate reasons in para 5 of the judgment while partially decreeing the suit filed by the plaintiffs.
::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 11However, in the judgment so passed by the learned Appellate Court neither there is any whisper of the reasonings which were given by the learned trial Court nor there is any discussion on the same nor any .
findings have been returned by learned Appellate Court as to why the findings returned by learned trial Court were not based on correct appreciation of oral as well as documentary evidence. All that has been observed in para 19 of the judgment passed by the learned of Appellate Court that learned Civil Judge has not rightly appreciated the oral as well as documentary evidence placed on record and rt erroneously answered Issue Nos. 1, 12 and 13 in favour of the plaintiffs. On what basis, this conclusion has been arrived at by the learned Appellate Court is not borne out from the judgment. In my considered view, the conclusion so arrived at by the learned Appellate Court vide which it has set aside the findings returned by the learned trial Court without assigning any reasons as to why the findings so returned by the learned trial Court were being set aside is not sustainable. On the basis of what evidence on record learned Appellate Court has drawn the conclusion that the finding returned by learned trial Court is erroneous is not borne out from the judgment.
The findings which have to be returned by the learned Appellate Court cannot be passed on presumptions, conjectures and surmises.
The same have to be borne out from the material adduced on record ::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 12 by the parties as well as from the judgment passed by the learned trial Court.
18. It is well settled law that the first Appellate Court is the .
final Court of fact ordinarily and therefore a litigant is entitled to a full, fair and independent consideration of the evidence at the appellate stage and anything less than this is unjust to him. The Appellate Court has jurisdiction to reverse or affirm the findings of of the trial Court and first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein rt open for rehearing both on question of fact and law. It is settled law that while reversing a finding of fact, the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first Appellate Court had discharged the duty expected of it. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues involved in the case alongwith the contentions put forth and pressed by the parties for decision by the Appellate Court.
19. In view of the above salutary principles, I am of the considered view that the learned Appellate Court has failed to ::: Downloaded on - 15/04/2017 22:03:10 :::HCHP 13 discharge the obligation placed on it as first Appellate Court by deciding the appeal on presumptions rather than returning its findings by coming close quarters with the reasoning assigned by .
the learned trial Court and thereafter assigning its own reasons for arriving at a different finding.
In view of the discussion held above, the appeals are allowed and judgment and decree dated 24.01.2006 passed by the of Court of learned District Judge, Hamirpur, in Civil Appeal No. 08 of 2004 and Civil Appeal No. 02 of 2004 are set aside. The case is rt remanded back to learned Appellate Court with a direction to decide the appeal afresh on merits. Parties through their counsel are directed to put in appearance before learned Appellate Court on 25.4.2017.
Keeping in view the fact that case pertains to the year 2000, this Court hopes and trusts that learned appellate Court shall adjudicate upon the appeal as expeditiously as possible and preferably within a period of six months. No order as to costs.
Miscellaneous application(s), if any, also stands disposed of. Registry is directed to return back the records of the case to learned appellate Court forthwith.
(Ajay Mohan Goel) Judge Marach 22, 2017.
(narender) ::: Downloaded on - 15/04/2017 22:03:10 :::HCHP