Himachal Pradesh High Court
Smt. Nirmala vs Hari Singh on 15 September, 2000
Equivalent citations: AIR2001HP1
Author: Kuldip Chand Sood
Bench: Kuldip Chand Sood
JUDGMENT Kuldip Chand Sood, J.
1. This second appeal, under Section 100 of the Code of Civil Procedure, arises out of the judgment and decree of the learned Additional District Judge (I) Shimla dated September 18, 1993.
2. In order to appreciate the controversy, the facts. In brief, may be notice :
One Sh. Jawala Dass was owner in possession of the landed property, including suit property, comprised in khasra numbers 82 and 83 along with two houses situate thereon, situate in mauza Seehpur of Tehsil and District Shimla. Jawala Dass died on February 28, 1972. He was succeeded by his widow Hem Dagsi, son Devi Saran and daughter Ram Kali. Devi Saran also died Immediately thereafter and was succeeded by his widow Reshmu Devi. Hem Dassi (widow of Jawala Dass) gifted her l/3rd share in the properties left by Jawala Dass, including the suit property, to defendant Nirmala. Thus. Nirmala, Ram Kali and Reshmu became owners in 'possession of the property of Jawala Dass including the suit property to the extent of l/3rd share each. In the year 1974, Reshmu Devi and Ram Kali gifted their respective shares in the property left by Jawala Dass, (including the suit property) in favour of Hari Sinha Plaintiff. The plaintiff and defendant, thus, became joint owners in possession of the suit property. The plaintiff became owner to the extent of 2/3rd share and the defendant in respect of other l/3rd share.
3. In the year 1985, plaintiff filed a suit for injunction seeking a restrain on the defendant from demolishing the two houses located on khasra numbers 82 and 83 (suit property). The defendant in an application under Order 39 rules 1 and 2, C.P.C. was restrained from demolishing these two houses during the pendency of the suit. The suit was, however, dismissed in default in August 6, 1985. Hari Singh plaintiff moved an application for restoration of the suit which was allowed. However in the integrum, it is alleged, defendant demolished the houses and in its place raised two new houses. In these circumstances, the plaintiff withdrew the suit for injunction and filed the present suit.
4. The plaintiff, by the present suit, claims possession of his 2/3rd share in the property, including houses, by was of partition and for rendition of accounts in respect of the benefits derived by the defendant from the houses on the suit property.
5. Defendant resists the suit. Allegations are controverted. Maintainability of the suit is disputed. It is pleaded that the civil Courts have no jurisdiction to direct the partition of the suit property in view of the provisions of Section 171 of the H.P. Land Revenue Act. Plea of gift by Ram Kali and Reshmu of their respective shares in the property of Jawala Dass, including the suit property in favour of the plaintiff, is not disputed. It is also admitted that Hem Dassi gifted her 1/3rd share to the defendant. According to the defendant, Devi Saran during his life time executed an agreement relinquishing his rights over the suit property comprised in Khasra number 82 and the houses situate over it. Reshmu and Ramkali, pleads defendant, had no right, title or interest left in the suit property and, therefore, no valid gift was executed by Reshmu and Ramkali of their respective shares in favour of the plaintiff as they were not owners of the said property. According to the defendant, the material of the house was merely debris without any market value.
6. On the pleadings of the parties, following issues were settled by the learned trial Court:
1. Whether the plaintiff is co-sharer in the suit property to the extent of 2/3rd share as alleged ?. OPP.
2. If Issue No. 1 is proved in affirmative, whether the plaintiff is entitled to partition of the suit property? OPP.
3. Whether the plaintiff is entitled to rendition of accounts as alleged? OPP.
4. Whether the plaintiff is entitled to the relief of permanent injunction as prayed ? OPP.
5. Whether the suit as laid is neither compelent nor maintainable as alleged?OPD.
6. Whether the suit is barred under the provisions of Section 171 of H.P. Land Revenue Act? OPD.
7. Whether the suit is time-barred ? OPD.
8. Whether the plaintiff is estopped from filing the present suit by his acts, deeds, conduct and acquiescence as alleged ? OPD.
9. Whether the suit has not been properly valued for the purposes of jurisdiction and court fee, if so, what is the correct valuation of suit property ? OPD.
10. Whether the plaintiff has got no cause of action to file this suit? OPD.
11. Whether the suit is liable to be dismissed as the grounds mentioned in preliminary objection No. 9 ? OPD.
12. Relief.
7. Learned trial Court found the plaintiff to be owner of the suit property to the extent of 2/3rd share except the new houses constructed by the defendant and accordingly, passed a preliminary decree for partition. The trial Court valued the demolished structure of the old house at rupees 15,000/- and direct that it shall be taken into consideration at the time of partition. The claim for rendition of accounts was dismissed. The defendant was restrained from changing the nature of the suit property or alienating it in any manner till the completion of the partition.
8. Dis-satisfied, defendant Nirmala filed an appeal before the learned Additional District Judge, Shimla who by her impugned judgment, dismissed the appeal. Learned Additional District Judge up held the findings of the trial Court that the plaintiff is the owner of the suit property to the extent of 1/3rd share and entitled to partition of the suit property except the new houses constructed by the defendant-appellant on khasra number 82. Aggrieved, this appeal by the defendant Nirmala.
9. This appeal was admitted on the following substantial questions of law:
1. Whether the present suit was hit by the provisions of Order 23 of the Code of Civil Procedure.
2. Whether the suit of the plaintiff-respondent is barred by Order 2 Rule 2 of the Code of Civil Procedure.
3. Whether the presumption under the Himachal Pradesh Land Revenue Act regarding the entries of the land extend qua the ownership of the structures standing thereupon.
4. Whether the judgment and decree passed by both the Courts below is vitiated on account of misreading and misconstruing Exhibit DW1/A, DW2/A and DW4/A.
5. When a parcel of land is assessed to land revenue and does not fall within the definition of site of village, could a suit for partition be maintained in the Civil Court, is not the jurisdiction of the Civil Court barred in such situation.
10. I have heard Shri Bhupender Gupta, learned senior counsel for the appellant and Shri G.D. Verma, learned Senior Counsel for the respondent and gone through the entire record.
Questions Nos. 1 and 2.
11. The case of the defendant is that plaintiff had filed a suit in respect of the suit property at an earlier occasion which was withdrawn and, therefore, the present suit is not maintainable in view of the provisions of Order 23 and Order 2 Rule 2 of the Code of Civil Procedure. This question was considered by both the learned trial Court and the learned First Appellate Court. The contention of the defendant-appellant was repelled. Learned Additional District Judge on this aspect of the case observed thus :
" 16..... I may point out that this fact had to be proved by the defendant by producing copies of the plaint and written statement of the earlier suit which has not been done. So it cannot be ascertained from the record that the identical relief has been disallowed to the plaintiff in a previously instituted suit. Hence this appeal deserves dismissal. This point is decided against the appellant."
12. Learned trial Court on this plea of the defendant-appellant found that though plaintiff had filed an earlier suit seeking to restrain the defendant from raising any construction over the suit property but the same was withdrawn as, in the meanwhile, the defendant completed the construction and his suit became infructuous. Learned trial Judge further noticed that defendant has not led any evidence except from tendering copy of the order of the withdraw Exhibit DX from which it cannot be gathered that injunction earlier sought was the same or not. Nevertheless, learned trial Judge sent for the file and perused the plaint. On the perusal of the plaint, he found that the previous suit was only for restraining the defendant from raising construction of the house, whereas, the present suit is for restraining the defendant from changing the nature of the suit property and, therefore, the injunction so sought is different from the earlier injunction.
13. Order 23 Rule 1 may be reproduced for convenience :
"Withdrawal of suit or abandonment of part of claim-- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to Sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is repre-
sented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied, -
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim wilh liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff
(a) abandons any suit or part of claim under Sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub-rule (1) or to withdraw, under Sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs .
14. It may be seen, under Sub-rule [4], when plaintiff withdraws from the suit without permission to file fresh suit for the same subject matter as contemplated under Sub-rule (3) then such plaintiff is precluded from filing any fresh suit in respect of the same subject matter. The term "subject matter" means the plaintiffs cause of action for his suit. In other words, a suit on a different cause of action is not barred under this rule even though the suit may be in respect of the same property. It is settled law that when cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter.
15. Now, in this case, defendant-appellant has not placed any material before the Court to show that the cause of action and relief claimed in the earlier suit were identical. Therefore, in the absence of any material on record, the plea of the defendant that this suit is barred cannot be accepted. This apart, learned trial Judge took pains to look into the earlier plaint and found that the cause of action and relief claimed, in the earlier suit were different to the present plaint. The conclusion arrived at by the learned First Appellate Court and the trial Court cannot be said to be erroneous.
16. Similarly, next contention of the learned Senior Counsel for the appellant that suit is not maintainable in view of the provisions of Order 2 Rule 2, Code of Civil Procedure, is fallacious. Rule 2 of Order 2 of the Code reads :
"2, Suit to include the whole claim.-- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim--Where a plaintiff omits to sue in respect of. or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs-- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs: but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.-- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
17. This rule is based on the principle that defendant should not be vexed twice for one and the same cause (See : AIR 1931 PC 229. Naba Kumar Hazara v. Radhashyam Mahish AIR 1984 AP 169, Poosarla Venkata Ralnamma Power of Attorney holder Sri. V. Someswara Rao v. Smt. Sivakoti Sundara Ratnamma, AIR 1964 Raj 114 Ramjilal v. Board of Revenue.
18. The rule, it is apparent, does not preclude second suit based on distinct and separate cause of action. To make this rule applicable, the defendant must satisfy three conditions:
(a) The previous and second suit must arise out of the same cause of action;
(b) Both the suits must be between the same parties and
(c) The earlier suit must have been decided on merits.
19. In the present case as discussed earlier, there is no evidence to show that cause of action for the previous suit was the same. This apart, the previous suit admittedly was not decided on merits as the same was withdrawn by the plaintiff-respondent. Therefore, the argument of Shri Bhupender Gupta learned counsel for the appellant that the present suit Is not maintainable has no merit. The questions are answered accordingly.
Questions Nos. 3 and 4,
20. Both the questions are inter-linked and may be taken up together. The stress of Mr. Bhupender Gupta learned Senior Counsel for the appellant is that the structures located on khasra number 82. subject matter of suit property, was not subject of gift which was made in favour of the plaintiff by Ram Kali and Reshmu. Mr. Gupta submits that the conclusion arrived at by the Courts below is the result of misreading of documents Ext. DW1/A. DW2/A and DW4/A. (sic) an affidavit of Ram Kali dated May 1. 1985. In this affidavit. Ram Kali declares that their two houses were located on Khasra Number 82 and Smt. Hem Dassi gave possession of the houses over it to Smt. Nlrmala, appellant herein. Nirmala demolished these, houses as no one had any right on these houses. She further declares that she and Smt. Reshmu executed gift deed of their respective shares in favour of Hari Singh plaintiff on misrepresentation. It was agreed that Hari Singh would maintain them but he did not maintain either Reshmu or her. She goes on to declare that no part of the house was transferred to Hari Singh. plaintiff -respondent, by her or Reshmu and he never was in possession of any portion of the house. In para 5 of the affidavit, it is declared that after she and Reshmu gifted their shares to I Hari Singh, the property was partitioned and Hari Singh and Nirmala were put in separate possession of khasra numbers of their respective shares. Khasra number 82 is in exclusive possession of Nirmala.
This affidavit has no evidentiary value. Firstly, the affidavit is not an evidence within the meaning of Sees. 1 and 3 of the Evidence Act and, secondly, the affidavit cannot destroy or take away the rights on the suit property which were gifted to the plaintiff Hari Singh. Combined reading of Section 1 and definition of expression' evidence' under Section 3 makes it clear that affidavit is not an evidence. Section 1 and 3 reads :
"1. Short title, extent and commencement,-- This Act may be called the Indian Evidence Act, 1872. It extends to whole of India (except the State of Jammu and Kashmir) and applies to all judicial proceedings in or before any Court, including Courts-martial, other than Courts-martial convened under the Army Act. the Naval Discipline Act or the Indian Navy (Discipline) Act, 1934 or the Air Force Act but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator;
And it shall come into force on the first day of September, 1872".
"3. Interpretation clause :-- In this Act, the following words and 'expressions are used in the following senses, unless a contrary intention appears from the context:
"Evidence" - Evidence means and in-cludes-
(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence".
21. It may be seen that affidavits are not included in Section 3 of the Evidence Act. An affidavit cannot be used as evidence unless law specifically permits certain matters to be proved by affidavit. The reason is that the deponent of an affidavit is not subject to cross-examination for the declarations made in such affidavit.
22. Secondly, as observed by the learned First appellate Court, the gift made by Reshmu and Ramkali of their respective shares in the suit property in favour of the plaintiff cannot be modified by an affidavit of subsequent date of the donor. Interestingly, copy of the affidavit Ext. DW1/A refers to partition of the entire property of deceased Jawala Dass between Nirmala and Hari Singh. It declares that both Nirmala and Hari Singh were put in separate khasra numbers and khasra number 82 fell into the share of Nirmala. This is not even the case of the defendant appellant. Smt. Ram Kali was alive at the time when suit was tried and defendant could have produced her to prove his case. This affidavit has no meaning and cannot be looked into.
DW2/A.
23. This document in fact is a gift deed Ext. DW2/B and not DW2/A as mentioned in question No. 6,. This copy of gift deed (Ext. DW2/B) is dated September 18, 1972. By this gift deed. Smt. Hem Dassi gifted her l/3rd share in the properties left by her husband, as mutated in her name on September 6, 1972, in favour of the defendant Nirmala. It is recited in this deed that she has also giffed the two storeyed house and one room in the new house, injavour of, the defendant. This document is of no assistance to the defendant-appellant. Apparently, Hem Dassi could not have gifted anything more than her title. She became owner of the properties left by her husband Jawala Dass to the extent of l/3rd share including the suit property and houses located thereon. Thus, Hem Dassi could only have gifted 1 / 3rd share in the houses over the suit land and not the entire house even if she was in possession of two houses. Her possession would be deemed to be also on behalf of other joint owners. The document cannot be said to have been misread or misinterpreted by the learned trial Court and the first Appellate Court.
24. Ext. DW4/A purports to be an agreement executed between Devi Saran and defendant on October 29. 1972. According to this agreement, Devi Saran relinquished his rights over khasra number 82 in favour of the defendant-appellant. Learned First Appellate Court found this document to be of doubtful character for the reason that it was not relied upon by the defendant at the time of earlier suit. According to the learned First Appellate Court, had this document been in possession of Smt. Nirmala, it would have been relied in the earlier suit which was regarding the house situated on khasra number 82. The document has also been rejected on the ground that in this document there is a recital that some other land has been given in exchange by Smt. Nirmala to Devi Saran in lieu of khasra number 82. There is no detail of such land in the docu-
ment nor defendant has led any evidence to show that as to what land was left by Nirmala to Devi Saran. In any event, this document Is contrary to the affidavit Ext. DW1 /A relied upon by the defendant wherein it is stated that khasra number 82 fell into the share of the defendant after partition whereby plaintiff Hari Singh and defendant-appellant Nirmala were put in possession of separate khasra numbers. The Courts below have rightly rejected this document. Question No. 7
25. The last submission of learned Senior Counsel for the appellant is that as the land is assessed to the land revenue, therefore, civil Courts have no (sic) in khasra numbers 82 and 83 for the year 1985-86 (Ext. PA) shows this land is not assessed to land revenue. In the circumstances, the provisions of H.P. Land Revenue Act cannot be invoked by the defendant-appellant.
26. In this case, no substantial question of law arises.
27. Under Section 100 of the Code of Civil Procedure, the findings of fact can be interfered with only if:
(a) When material or relevant evidence is not considered which if considered would have led to an opposite conclusion;
(b) Where a finding has been recorded by the First Appellate Court by placing reliance on inadmissible evidence which if omitted, an opposite conclusion was possible.
28. In this case, as discussed above, the entire evidence has been considered by both the trial Court and the First Appellate Court. It can also not be said that the Courts below have placed reliance on any inadmissible evidence which if omitted, would result in up-setting the conclusion arrived at by the Courts. The concurrent findings recorded by the courts below Is the result of proper appreciation of evidence.
29. Explaining the scope of Section 100 of the Code, Apex Court in Kondiba Dagdu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 : (AIR 1999 SC 2213) observed in para 5, (at page 2214-2215 of AIR) :
"5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses ac-
cepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible. one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
30. No other point is urged before me.
31. In result, appeal fails and is dismissed with costs.