Gujarat High Court
Ghanchi Pirbhai Kala (Decd.) Through ... vs Meghamal Sirumal on 28 June, 1988
Equivalent citations: (1989)1GLR183
JUDGMENT A.P. Ravani, J.
1. This litigation has its roots in the partition of the country which took place in the year 1947. The plaintiff, who must have left all his property in Pakistan and migrated to this part of the country, was allotted certain land in January, 1968 in settlement of his claim. Except for brief period he has not enjoyed the possession of the land. He filed the suit for recovery of possession in the year 1973 and succeeded in trial Court in the year 1978. Since then the matter is in appeal. He succeeds in this appeal also. Even so, can any one tell him, with reasonable certainty, as to when shall he get the possession of the land? We do not venture to answer the question. We only hope that all those who feel concerned for the proper management of the system may ponder over the question and may do the needful.
2. The appellants herein are original defendants. The respondent-plaintiff filed a Special Civil Suit in the Court of Civil Judge (S.D.), Rajkot for recovery of possession of agricultural lands bearing Survey Nos. 98, 101, 206, 90/1, 90/2 and 91/1 of village Sanosara admeasuring 58 acres and 34 gunthas. The suit was based on title. It was contended that the defendants had dispossessed the plaintiff and that the defendants were in illegal possession. According to the plaintiff the suit property was declared as evacuee property and the plaintiff had received the same in settlement of his claim under allotment order dated January 5, 1968. Possession of the same was banded over to the plaintiff in January, 1968 by the Circle Inspector, Kuvadava. Sanad Exh. 69 dated December 31, 1969 in respect of the land was issued in favour of the plaintiff by the appropriate authority.
3. The plaintiff contended that earlier he had filed Special Civil Suit No. 496 of 1968 on July 25, 1968 for a permanent injunction against the defendants praying that the defendants be restrained from interfering with his possession. In that suit the defendants filed written statement Exh. 65. The trial Court had granted interim injunction as prayed for (Exh. 43) in favour of the plaintiff. The order passed by the trial Court was challenged in appeal by the defendants and the District Court, Rajkot dismissed appeal as per its order (Exh. 44) dated December 19, 1968. There were proceedings under the provisions of Section 145 of the Criminal Procedure Code also which ultimately ended in order dated January 20, 1972 (Exh. 45) by which the Executive Magistrate held that there was no likelihood of breach of peace and hence discharged the previous order passed under Section 145 (1) of the Criminal Procedure Code. Thereafter the present suit was filed by the plaintiff on May 17, 1973 contending that the plaintiff was put in possession in the year 1968: he continued to be in possession, but after the death of his father some time in the year 1968 the defendants were harassing the plaintiff and some time prior to the filing of the suit, possession of the suit property was taken ever by the defendants illegally and hence the suit for recovery of possession and for perpetual injunction restraining the defendants from interfering with the possession of the plaintiff.
4. Original defendant Pirbhai Kala appeared in the suit and resisted the same by filing written statement Exh. 14. During the pendency of the suit original defendant died and his heirs and legal representatives have been brought on record. They have filed further written statement Exh. 63. They have adopted the written statement filed by the deceased and have raised additional contentions on the basis of advers possession. In essence the defendants contended that the property was not evacuee property and that the defendants were in possession of the suit land and the plaintiff was not entitled to the relief of possession and injunction as prayed for. The defendants also contended that the Civil Court had no jurisdiction to entertain and decide the suit.
5. The trial Court held that the property had been declared as evacuee property and that the defendants had no interest in the property. The trial Court further held that the plaintiff had proved that he was allotted the land by the competent authority exercising powers under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the Administration of Evacuee Property Act, 1950 (hereinafter referred to as 'the Act of 1954' and 'the Act of 1950' respectively). The trial Court also held that it had jurisdiction to hear and decide the suit and that the suit as filed was maintainable and the plaintiff was entitled to the relief of possession and not the relief of perpetual injunction as prayed for. Against this judgment and decree, this appeal is preferred by defendants.
6. The learned Counsel for the appellants submitted that the property was not evacuee property and the Sanad Exh. 69 produced by the plaintiff does not prove the title of the plaintiff over the land. It is submitted by him that the Civil Court will have jurisdiction to decide as to whether the property in question was evacuee property or not. It is interesting to note that in para 11 of the written statement the defendants contended that the trial Court had no jurisdiction to entertain and decide the suit. It is averred that according to the plaintiff the property in question was evacuee property and therefore the plaintiff can resort to the machinery provided under the 1950 Act for recovery of possession, and that the trial Court had no jurisdiction to entertain the suit. Despite this position of pleadings the learned Counsel for the appellants-defendants submitted that the trial Court had jurisdiction to go into the question as to whether the property was evacuee property or not. In his submission. Section 7(1) of the 1950 Act postulates that (1) before declaring any property as evacuee property notice in the prescribed manner should be given to the persons interested in the property; and (2) inquiry into the matter as the circumstances of the case may permit should have been held. As contended by the defendants in the written statement there was no notice to the defendants and no inquiry as provided under the Act was held. It was therefore contended that the property was not evacuee property.
7. The aforesaid submission made by the learned Counsel for the appellants cannot be accepted. Previously there was litigation between these very parties. Special Civil Suit No. 496 of 1968 was filed by the plaintiff for injunction against the defendants praying that the defendants be restrained from interfering with his possession. The suit was filed on July 25, 1968 and a copy of the plaint in that suit is at Exh. 64. Therein the original defendant Pirbhai Kala filed written statement Exh. 65. Both these documents were produced together with the list Exh. 33 and have been admitted by the learned Advocate appearing for the defendants, as per his endorsement dated August 29, 1977. Therefore both the documents have been exhibited in evidence by the trial Court. In written statement (Exh. 65) filed by the original defendant, Pirbhai Kala (father of the present defendants) it is averred that as stated in para 7 of the plaint, the property mentioned therein has been declared as evacuee property. However, purchase of the property in auction sale was disputed and it was contended that the allotment order was provisional and did not confer any right on the plaintiff. In para 6 of the written statement it is stated that as the brothers of the defendant had gone to Karachi, the department, dealing with evacuee property, had declared the suit property as evacuee property. In para 7 of the written statement it is stated that the allotment order dated January 5, 1968 in favour of the plaintiff is provisional and notice for mutation entry in the record of rights has been issued by the Circle Inspector but the entry has still not become final.
8. The present defendants have been joined as heirs and legal representatives of deceased defendant Pirbhai Kala. They have adopted the written statement filed by their deceased father and in addition they have claimed the ownership of the property on the basis of adverse possession for a period of about 20 years.
9. The learned Counsel for the appellants submitted that the trial Court committed an error in taking into consideration the aforesaid admission in the written statement filed by deceased Pirbhai (original defendant) in earlier litigation. In his submission the admission by party in pleading in one suit is not binding on him in another suit. Reliance is placed on the decision of the Bombay High Court in the case of Ramabai Shriniwas Nadgir v. Government of Bombay AIR 1941 Bombay 144. Therein it is held that an 'admission in a pleading can be used only for the purpose of the suit in which the pleading was filed. However, this decision has been commented upon and explained by the Bombay High Court itself in the case of Dattatraya Shripati Moreover, in the case of Basani Singh v. Janki Singh and Ors. , the Supreme Court has clearly disapproved this judgment of the Bombay High Court and has held that Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admissions. Under the Indian Law an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true. Be it noted that no attempt whatsoever has been made either in the evidence or before us to show that the admission made by the defendants in the written statements is not true or that it was made under some mistaken notion and therefore the same should not be taken into consideration. Hence the contention cannot be accepted.
10. We are really surprised that the learned Counsel for the appellant urged this point on the basis of an overruled decision. It is difficult to believe that Senior Counsel of his standing may be unaware of the subsequent decisions on the point. When we asked him. "If we do not agree with the principle laid down in this decision of Bombay High Court, what should be done?", he suggested that the matter would be required to be referred to a larger Bench since the decision relied upon by him was that of a Division Bench of the Bombay High Court prior to the formation of State of Gujarat. However, on our part we had to make some research. Probably the learned Counsel for the other side also did the same thing. Much can be said and perhaps something concrete can also be done to remedy the situation. However, we would rather refrain from making any comment on this point.
11. Faced with the aforesaid difficulty the learned Counsel for the appellants submitted that despite the aforesaid admission it would be open to the appellants to contend that the declaration as to the evacuee property was not in accordance with law inasmuch as the basic requirements before making declaration under Section 7 of the 1950 Act were not complied with. It is submitted by him that issuance of notice to interested persons has been disputed by the defendants in written statement and it is also contended by the defendants that no inquiry was held. We are afraid, this particular part of the contention cannot be raised before the Civil Court and even if raised, the Civil Court will have no jurisdiction to entertain and decide the same.
12. Section 46 of the 1950 Act in terms provides that no Civil or Revenue Court shall have jurisdiction to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property, or to' question the legality of any action taken by the Custodian General or the Custodian under the Act, or in respect of any matter which the Custodian General or the Custodian is empowered by or under the Act to determine. Section 46 is widely worded. Section 7 of the Act provides that the Custodian shall determine and declare as to whether any property is evacuee property or not. Section 28 of the Act provides that every order made by the Custodian General, Custodian, Additional Custodian, Authorised Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceeding. In view of this unambiguous provisions of the 1950 Act it is difficult to hold that the Civil Court will have jurisdiction to decide that the declaration made by an officer exercising powers under the 1950 Act was not legal and valid.
13. Here reference may be made to a decision of the Supreme Court in the case of Custodian, Evacuee Property, Punjab and Ors. v. Jafran Begum . In para 9 of the judgment, after discussing the relevant provisions of the Act, it is inter alia observed:
Section 28 gives finality to orders of the authorities mentioned therein and lays down that such orders shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceeding.... The legislature was not satisfied by merely conferring finality on such orders; it went further and expressly barred the jurisdiction of Civil and Revenue Courts under Section 46 to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property.
Section 46(c) specifically provides that no Civil or Revenue Court shall have jurisdiction to question the legality of any action taken by the Custodian General or the Custodian under the Act. Clause (d) of Section 46 further provides that in respect of any matter which the Custodian is empowered by or under the Act to determine, the same cannot be questioned. The Supreme Court has made the aforesaid observation in relation to the provisions of Section 46(a). But the same applies with equal force with regard to the provisions of Section 46(c) and (d) also. It is further observed by the Supreme Court that the Act is a complete Code in itself in the matter of dealing with evacuee property. In view of the aforesaid settled legal position it was not open to the trial Court to entertain and decide the issue with regard to the legality and validity of the order passed by the authorities exercising powers under the 1950 Act.
14. As regards issue No. 1 in the suit, trial Court held that it had jurisdiction to decide as to whether it was competent to determine the question regarding the nature of the property. In our opinion, in view of the admission made by the defendants, this question did not arise in these proceedings. The legality and validity of the order passed by an authority exercising powers under the 1950 Act cannot be challenged before any Revenue or Civil Court. In fact the defendants had raised this contention in the written statement,' but in view of the admission made by the defendants in the written statement filed in the previous suit (Exh. 65), it is now not open to the defendants to say that the property has not been declared to be an evacuee property or that the same has not been declared in accordance with law or that there is no such declaration.
15. The learned Counsel for the appellants relied upon a decision of the Supreme Court in the case of Dr. Rajendra Prakash Sharma v. Gyan Chandra and Ors. . Therein the question was whether or not the property was ever declared to be evacuee property by the Custodian? In the facts of the case the Supreme Court held that such a question could be done into by the Civil Court because the question was not, at any time decided by the Custodian as to whether the property was an evacuee property or not. After referring to its earlier decision in the case of Jafran Begum (supra), in para 27 of the judgment, the Supreme Court observed:
It is clear that even according to the rule of the above decision Section 46 will not bar the jurisdiction of the Civil Court where the Custodian has never declared the property as evacuee property after taking proceedings under Section 7 of the 1950 Act.
If one reads para 43 of the aforesaid judgment it becomes abundantly clear that notification declaring the property to be evacuee property was not placed on the record of the case. Had there been such a notification the question would have been altogether different. The Supreme Court even granted time to the learned Counsel for the appellant to produce the Gazette notification whereby the suit property was declared and notified as evacuee property by the Custodian under the relevant provisions of the 1950 Act. No such notification was produced despite the time having been granted.
16. In the background of factual position as stated above the Supreme Court held that no proceedings under Section 7, declaring the property in question to be evacuee property, were taken by the Custodian against the person who remained in India atleast till 1963. No notification under Section 7(3) was published in the Official Gazette declaring the property as evacuee property nor were any proceedings initiated under Section 7 to declare the property as evacuee property and were pending on the 7th day of May, 1954. Despite this factual position, the Custodian exercising powers under the 1954 Act had declared the property in question as evacuee property and therefore, the Supreme Court held that when the property has not been declared as evacuee property under the provisions of the 1950 Act, such a question can be agitated before the Civil Court.
17. In this case there is admission of defendants, in the written statement filed in the previous proceedings, that the property has been declared as evacuee property. In fact the decision taken by the initial authority in favour of the plaintiff was challenged by the defendants before the appellate authority. That is clear from the averments made in para 7 of the written statement (Exh. 65). The aforesaid position about the nature of the property being evacuee property has been reiterated in Exh. 63-additional written statement filed by the present defendants. In view of this position of the record reliance placed on the decision of the Supreme Court in the case of Dr. Rajendra Prakash Sharma (supra) is of no help to the appellants-defendants.
18. The learned Counsel for the appellants relied upon the decision of this High Court in the case of Karadia Jetha Kana v. Managing Officer-cum-Collector, Junagadh to show that issuance of notice to interested persons and holding of inquiry are the pre-requisites before declaring property to be evacuee property. There is no dispute with regard to this principle. The question is not what are the requirements or pre-conditions before declaring the property to be evacuee property. The point is whether such a question can be gone into by the Civil Court? In view of the aforesaid discussion the Civil Court cannot go into the question as regards legality and validity of the declaration made under the provisions of the 1950 Act.
19. Even if it is assumed that the appellant-defendants can challenge the legality and validity of the declaration as evacuee property made in favour of the plaintiff, in proceeding before a Civil Court, then even the onus to establish this fact will be on the appellant-defendants. Once the plaintiff produced the Sanad issued by the competent officer, in his favour, the burden shifts upon the defendants. The defendants have not discharged this burden and therefore also the defendants must fail.
20. The learned Counsel for the appellants submitted that even if the plaintiff's case as regards title is accepted no decree for possession could have been passed because the plaintiff has not been able to prove his absolute title. In his submission the defendants were co-owners of the property in question. Hence at the most even if there is a declaration as regards evacuee property that could be qua the interests of persons who have left India and went to Pakistan; such a declaration would not affect the interests of the defendants in the property and therefore at the most there could be a decree for joint possession and decree for recovery of possession in favour of the plaintiff could not have been passed. This is essentially a question of fact. On this point there is no express pleading. No specific issue is raised before the trial Court. In the additional written statement (Exh. 63) filed by the present defendants they have claimed that they alone are the owners of the property and that they have become owners of the property by adverse possession. In above view of the matter, it is now not open to the appellants-defendants to raise this question and say that the decree for possession in favour of the plaintiff could not have been passed by the trial Court.
21.Even assuming for a moment that such contention is permissible to the appellant-defendants then even it would amount to indirectly going behind the order passed by the Custodian under the provisions of the 1950 Act. Sanad Exh. 69 is a document of title issued in favour of the plaintiff under the provisions of 'the 1950 Act' and 'the 1954 Act'. In view of the provisions of Section 27 of 'the 1954 Act' and Section 23 of 'the 1950 Act' this document cannot be called in question in any Civil Court. Sanad Exh. 69 clearly states that the property described in the schedule was acquired by the Central Government under the relevant provisions of 'the 1954 Act' and that the property described in the schedule to the Sanad has been transferred to the plaintiff. In this document there is nothing to indicate that any limited ownership or limited interest has been conferred upon the plaintiff.
22. After the issuance of Sanad in favour of the plaintiff there is mutation of revenue entry in favour of the plaintiff (Exh. 79). This entry also does not indicate that any limited interest or joint interest in the property has been conferred upon the plaintiff. Together with the aforsaid documentary evidence if one reads the evidence of the plaintiff's witness Shri Thakur Madhlani (Exh. 67) and the evidence of the Circle Inspector, Shri Harishbhai (Exh. 75) it becomes abundantly clear that the property has vested in the plaintiff and the possession thereof has been handed over to him by the appropriate Government Officers. Be it noted that mutation entry Exh. 79 has been produced by the plaintiff's witness Mavji Govindji (Exh. 77) and there is no cross whatsoever to this witness. In above view of the plaintiff's evidence it cannot be said that the interest conferred upon the plaintiff is not absolute interest in the property and that the plaintiff has not become absolute owner of the property in question.
23. Simply because the defendants have paid land revenue in respect of the land in question and have produced certain receipts it cannot be said that the defendants have any interest in the property. In this connection reference may be made to the deposition of defendant-Adambhai Pirbhai (Exh. 89). In para 3 of his deposition he has stated that his uncles Nurbhai and Valibhai had share in the land. They went to Pakistan and therefore the land of their share was declared as evacuee property and was auctioned by the Government. This deposition clearly indicates that before Nurbhai and Valibhai went to Pakistan their share was separated either by the Government or by the parties themselves. He has thus in clear terms, admitted that it was the land falling to the share of his uncles which was declared to be evacuee property and was auctioned. In above view of the matter the plea that the decree for possession could not have been passed in favour of the plaintiff cannot be accepted.
24. The learned Counsel for the defendants submitted that the earlier suit (being Special Civil Suit No. 496 of 1968) filed by the plaintiff was dismissed for default and therefore in view of the provisions of Order 9 Rule 9 of Civil Procedure Code the plaintiff is precluded from filing the present suit. On the basis of the provisions of Order 2 Rule 2 of the Civil Procedure Code it is also contended that the plaintiff could not have prayed for relief of possession and injunction in this suit. As regards this contention also the appellants-defendants are faced with the same difficulty. This points is not raised in the pleadings nor the same is urged before the trial Court. Even so, the contention may be examined. The earlier suit was filed for injunction alone praying that the defendants be restrained from interfering with the possession of the plaintiff. It was not a suit for recovery of possession and injunction. The plaintiff sought to restrain the defendants from doing something (i.e. interference with his possession) which the plaintiff thought to be illegal. This activity of the defendants provided the cause of actions to the plaintiff for the earlier suit.
Order 9 Rule 9 of the Civil Procedure Code provides that when the suit is wholly or partly dismissed under Rule 8 (dismissed for default) the plaintiff shall be precluded from bringing in a fresh suit, in respect of the same cause of action. The present suit is not filed on the same cause of action. In this suit the case of the plaintiff is that the plaintiff was in possession and that the possession of the plaintiff has been illegally taken away by the defendants and therefore the possession should be restored. Thus it is evident that cause of action in both the suits is entirely different. Hence the contention raised on the basis of the provisions of Order 9 Rule 9 of C. P. Code has no merits.
25. Relying on the provisions of Order 2 Rule 2 of C.P. Code it is submitted that in the earlier suit the plaintiff ought to have prayed for relief of possession which the plaintiff had failed to pray and therefore the second suit for the relief of possession and injunction was barred. The contention cannot be accepted in view of the fact that in the earlier suit even the trial Court as well as the appellate Court prima facie found that the plaintiff was in possession of the suit property and in fact restrained the defendants from interfering with the possession of the plaintiff. This is evident from the interim orders passed by the trial Court below Exh. 5 (see Exh. 43) and the order passed by the District Court in Miscellaneous Appeal preferred by the defendants (see Exh. 44). Be it noted that the Miscellaneous Appeal was decided by the District Court on June 25, 1969. Thereafter there were proceedings under the provisions of Section 45 of the Criminal Procedure Code before the Sub-Divisional Magistrate who ultimately on January 20, 1972 discharged his earlier order. Thereafter the plaintiff filed the present suit for recovery of possession and injunction on May 17, 1973. Thus there was no question for praying for possession when the earlier suit was filed. Simply because the defendants asserted all through out that they were in possession of the. suit property such assertion on the part of the defendants (which was prima facie held to be not true by two Courts below) would not bar the plaintiff from claiming possession of the suit property in the present suit.
26. The learned Counsel for the appellant submitted that in view of the difficulty in pleadings he may be permitted to amend the written statement and add additional pleadings as regards the interest of the defendants as co-owners of the property in question. We do not think that such a plea can be permitted to be raised in the written statement after such an inordinate delay. If such permission is granted it would work hardship to the plaintiff and it would be not in the interest of justice. On the contrary, we feel that such a prayer is not necessary nor the same is bona fide. Hence the oral prayer to amend the written statement is rejected.
No other contention is raised. There is no substance in the appeal. Hence the appeal fails. In the result the appeal is dismissed with costs.