Himachal Pradesh High Court
Shiv Dayal (Since Deceased) Through His ... vs State Of H.P. & Others on 22 December, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 413 of 2002 along with RSA No. 414 of 2002.
.
Reserved on : 13.12.2017.
Decided on: 22nd December, 2017.
1. RSA No. 413 of 2002 Shiv Dayal (since deceased) through his legal heirs r .....Appellant/plaintiff.
Versus State of H.P. & others .....Respondents/Defendants.
2. RSA No. 414 of 2002 Shiv Dayal (since deceased) through his legal heirs .....Appellant/plaintiff.
Versus State of H.P. & others .....Respondents/Defendants.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.1
Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 26/12/2017 23:02:18 :::HCHP
...2...
For the Appellant(s): Mr. Ashwani K. Sharma, Senior .
Advocate with Mr. Jeevan Kumar, Advocate.
For the Respondents: Mr. R.S. Thakur, Addl. A.G. Sureshwar Thakur, Judge.
Both the aforementioned appeals are being disposed off, by a common judgment, given theirs arising from a common verdict, as also, common question of law and facts being involved therein.
2. The plaintiff's suit for rendition of a declaratory decree besides for rendition of a decree for permanent prohibitory injunction, with, also espousal therein, for relief of compensation, was partly decreed, by the learned trial Court, only upto the extent of the plaintiff being permitted to hold possession of the house raised upon the suit khasra number. The plaintiff being aggrieved by refusal(s) vis-a-vis him, of, a decree for declaration and for permanent prohibitory injunction, whereas, the defendant being aggrieved by a decree ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP ...3...
.
pronouncing, of, the plaintiff retaining possession, of, the house constructed by him, upon, a portion of the suit khasra number, thereupon, both appealed before the learned First Appellate Court, both civil appeals whereof, were decided by a common verdict pronounced thereupon, by the learned First Appellate Court, whereby, the defendants' appeal was allowed AND the plaintiff's appeal was dismissed in its entirety. The plaintiff being aggrieved therefrom, has instituted the instant appeals before this Court, whereby, he concerts to beget its reversal.
2. Briefly stated the facts of the case are that the plaintiff has filed a suit for declaration and permanent injunction and in the alternative for compensation as against the defendants. It is averred by the plaintiff that the suit land is comprised in khasra No.193, measuring 4- 2-2 bighas, situated in Mauja Bunga, is owned and possessed by the plaintiff. The plaintiff acquired the suit ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP ...4...
.
land on 28.10.1976 by way of exchange and in lieu of this land comprised in Khasra No.407/1 measuring 4-2-2 bighas situated in mauja Majhwal was surrendered by him to the State of H.P. and he also paid further sum of Rs.1209.62 to defendant No.1 It is averred that exchange was a lawful transaction and the plaintiff was duly put in actual and physical possession of the suit land. It is averred that revision petition was filed before the Financial Commissioner against the said exchange, who set aside the order of exchange. The plaintiff filed a petition/appeal before the Hon'ble High Court but he was unsuccessful. Thereafter a suit for permanent prohibitory injunction was filed by the plaintiff in the Court of the Senior Sub Judge, Mandi, which was dismissed on 24.9.1987. The appeal was dismissed by the learned Additional District Judge, Mandi on 17.1.1990 and the second appeal was also dismissed by the Hon'ble High Court on 5.3.1991. However, it was pleaded that in the ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP ...5...
.
judgment of the Hon'ble High Court the defendants were required to spare the land on which the plaintiff has constructed his residential house. It was observed that after exchange the plaintiff spent huge amount, raised an apple orchard consisting of 150 apple plants and spent a suit.
r to sum of Rs.1,60,000/- as detailed in the plaint. Hence the
3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objection qua maintainability, cause of action, res judicata, valuation and for non issuance of notice under Section 80 of the CPC. On merits, it was pleaded that on cancellation of exchange defendant has become owner of the suit land and the plaintiff is in illegal possession of the suit land. It was pleaded that the plaintiff is not entitled to the possession and is also not entitled to any compensation and he had no cause of action to file the suit which is liable to be dismissed.
::: Downloaded on - 26/12/2017 23:02:18 :::HCHP...6...
.
4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the present suit is barred by the principle of res judicate as alleged?OPD.
2. Whether the plaintiff is entitled to hold the possession and enjoy the suit land till payment of compensation?OPP.
3. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction?OPD.
4. Whether the suit is bad for want of notice?
OPD.
5. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction?OPD.
6. Whether the plaintiff has no cause of action?OPD.
6-A. Whether the suit is barred by principle of res judicata as alleged? OPD.
7. Relief.
5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court partly decreed the suit of the plaintiff/appellant herein. In ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP ...7...
.
appeals, preferred therefrom by the plaintiff/appellant herein as also by the defendants/respondent herein, before the learned First Appellate Court, the latter Court dismissed the appeal preferred by the plaintiff/appellant herein, whereas, it allowed the appeal preferred therebefore, by the defendants/respondents herein AND hence reversed the apposite findings recorded by the learned trial Court.
6. Now the plaintiff/appellant herein, has instituted both the instant Regular Second Appeals before this Court, wherein he assails the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeals came up for admission, on 17.09.2002, this Court, admitted the appeal instituted by the plaintiff/appellant, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:-
::: Downloaded on - 26/12/2017 23:02:18 :::HCHP...8...
1. Whether the present suit filed by the plaintiff is barred by the principle of .
resjudicata, when pleas set up in this suit were not subject matter in dispute in any previous litigation between the parties and nature of the present suit is totally different tot he earlier civil suit filed by the plaintiff?
2. Whether the present suit can be held to be barred for want of notice under Section 80 of the CPC, when order dated 30.06.1992 passed by learned trial Court, on the application moved by the appellant/plaintiff under Section 80 (2) CPC, had granted permission to the plaintiff to institute the suit without service of notice upon the defendants/respondents?
Substantial questions of Law No.1 and 2:
7. In respect of the extant lis engaging the parties at contest, previously also upon an earlier lis, previous lis whereof, was amongst, analogous parties therein, vis-a-
vis herein besides appertained, to, analogous suit khasra number inter se both, (i) a verdict emanated, from, the learned Senior Sub Judge, Mandi, verdict whereof is borne in Ex.P-1, whereby, the plaintiff's suit, for, rendition of a decree for permanent prohibitory injunction hence was dismissed. The aforesaid verdict, pronounced, by the learned Senior Sub Judge, Mandi, upon a lis engaging, ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP ...9...
.
parties holding analogity vis-a-vis the litigating parties herein, besides holding analogity vis-a-vis suit khasra numbers herein, has also acquired conclusivity, (ii) given this Court, upon, RSA No. 274 of 1990, pronouncing a verdict, comprised in Ex. P-2, whereby, this Court rendition of r a to affirmed the verdict of dismissal, of the plaintiff's suit, for decree, for permanent prohibitory injunction.
8. The learned counsel appearing, for the plaintiff has contended that the bar of estoppel, emanating, from the previously recorded binding judicial verdict, pronounced by the Civil Courts concerned, being not attracted vis-a-vis the extant suit, for the reason(s) of (a), of, the earlier suit being, for rendition of a decree, for, permanent prohibitory injunction, (b) whereas, in the extant suit, the plaintiff claiming rendition of a declaratory decree of title vis-a-vis the suit khasra number. However, the aforesaid plea is not amenable for ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP ...10...
.
acceptance by this Court, for the reason, (i) that the plaintiff was enjoined by the mandate, of, Order 2, Rule 2 of the CPC, to, in the earlier suit incorporate, all, the causes of action, as, arose in contemporaneity thereto;
(ii) rather than his omitting to do so; (iii) omission(s) whereof of the plaintiff, to, in the earlier suit, claim a declaratory decree of title vis-a-vis the suit khasra numbers, despite, its being claimable thereat, obviously, estops him to rear, it, in the extant suit. Consequently, the previously recorded clinching binding verdicts pronounced by Courts of law, upon, a lis, wherein, the parties hereat, hold analogity, besides with suit khasra numbers, in both suits, being analogous, rather hence, estop the plaintiff, to, re-espouse pleas in respect thereto, merely, by his incorporating in the extant suit, a, relief qua rendition of a declaratory decree.
::: Downloaded on - 26/12/2017 23:02:18 :::HCHP...11...
.
9. The learned counsel appearing, for, the plaintiff has contended that the refusal, on, the part of the learned First Appellate Court, to, award compensation vis-
a-vis the plaintiff, is, in conflict with the mandate, borne, in Ex.P-2, exhibit whereof is a decision recorded by this Court, in RSA No. 274 of 1990, wherein, there exists the hereinafter extracted observations:-
"In the result, this appeal fails and it is dismissed. There is no order as to costs as the appeal is disposed of finally at the admission stage.
Before parting with the case, this Court would like to observe that it will be in the interest of equity if the possession of Sh. Shiv Dayal over the portion of the suit land on which he has constructed his house, admittedly after the grant of exchange, is regularised"
The aforesaid observations, occurring, in the concluding portion, of, the verdict pronounced by this Court, in RSA No. 274 of 1990, was, construed by the learned First Appellate Court, (i) to be passing observations also it pronounced, that, in the learned trial Court, in consonance therewith, making pronouncement, upon, the ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP ...12...
.
defendants, its traveling beyond domain thereof, (ii) whereas, it was enjoined merely, to, pronounce upon the defendants, to, in consonance therewith, rather consider the claim, of, the plaintiff for regularising his possession, of, the house constructed by him, upon, a portion of the suit land.
learned
r to
The aforesaid mandate recorded by the First Appellate Court, upon, making a interpretation, of the aforesaid extracted relevant portion, of, the verdict pronounced, in, RSA No. 274 of 1990, appears to be apt, (iii) given an incisive reading thereof, disclosing, of, it visibly occurring in the concluding portion, of, its verdict, (iv) significantly, after this Court, dismissing, the plaintiff's second appeal, its, merely rendering, only in the interest of equity, hence passing observations, (v) hence, when this Court, while exercising jurisdiction, upon, RSA No.274 of 1990, was not exercising writ jurisdiction, in exercise whereof, alone any orders anvilled upon equity would carry binding ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP ...13...
.
effect upon the defendants, (vi) thereupon, rendition, of, passing observations, in the interest of equity, by this Court in RSA No.274 of 1990, cannot, be construed to be holding, any binding effect, upon, the defendants, for, theirs inconsonance therewith, regularizing, the possession of the plaintiff, in respect of his house existing, upon, a portion of r the suit khasra number.
Consequently, it is held that the interpretation thereto afforded by the learned first Appellate Court, is not amenable for interference, rather it is deemed fit, that the aforesaid observations, be considered by the defendants.
10. The learned counsel appearing, for, the plaintiff has contended that he has erected, a, sound evidentiary pedestal, for compensation being assessed vis-a-vis him, evidence whereof is comprised in Ex.PW3/A, whereas, in the learned first Appellate Court, declining, relief of compensation vis-a-vis him, it has committed error of ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP ...14...
.
mis-appraising, its evidentiary worth. The aforesaid submission addressed before this Court, by the learned counsel, appearing for the plaintiff, is unacceptable to this Court, as (i) the expenditures of money made by the plaintiff for improving besides developing the suit land, has evidently occurred, as aptly construed by the learned First Appellate Court, subsequent, to, the cancellation of the exchange deed qua the suit land, (ii) cancellation whereof occurred in the year 1979, significantly, when expenses were incurred vis-a-vis improvements upon the suit khasra numbers, as aptly pronounced by the learned First Appellate Court, subsequent to 1979, (iii) thereupon, it also aptly concluded by the learned First Appellate Court, the expenses incurred by the plaintiff, for improving besides developing the suit land, occurring subsequent to 1979, whereas, the relevant exchange was cancelled earlier thereto, hence, all the aforesaid expenses incurred for improvements, of the suit land by ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP ...15...
.
the plaintiff, being at his own risk AND his being not entitled for reimbursement thereof.
11. Since, it is borne out, from, an order recorded by the learned trial Court on 3.6.1992, whereby, the learned trial Judge, granted, the apposite permission, to the plaintiff to institute the civil suit, without, serving the mandatory notice under Section 80 of the CPC, upon, the defendants, it cannot be said that the suit of the plaintiff is bad for want of notice under Section 80 CPC being served upon the defendants.
12. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Accordingly, substantial question No.1 is answered in favour of the respondents/defendants and against the appellant, ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP ...16...
.
whereas, substantial question of law No.2 is answered in favour of the appellant and against the respondents.
13. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the impugned judgment(s) and decree(s) rendered by the learned District Judge, Mandi in Civil Appeal No. 88 of 1999 and Civil Appeal No.122 of 1999 are maintained and affirmed. However, the defendants are directed to, consider the case of the plaintiff, only in the interest of equity, for regularization of his possession, of, a portion of the suit land, whereon, he has constructed his house.
All pending applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) 22 nd December, 2017. Judge.
(jai) ::: Downloaded on - 26/12/2017 23:02:18 :::HCHP