Himachal Pradesh High Court
___________________________________________________________ vs State Of H.P. Through Collector Shimla ... on 1 October, 2018
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 560 of 2015 Reserved on: 24.09.2018 .
Decided on: 01.10.2018 ___________________________________________________________ Subhash Chander Bhalla through LRs Gaurav Bhalla and ors.
.....Appellants Versus State of H.P. through Collector Shimla and anr.
......Respondents _____________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
For the appellants: Mr. Ajay Kumar Sood, Senior r Advocate with Mr. Arvind Sharma, Advocate.
For the respondents: Mr. Ashwani Sharma and Mr. P.K. Bhatti, Additional Advocate Generals, for respondent No. 1/State.
Mr. Dalip K. Sharma, Advocate, for respondent No. 2.
Mr. Vipin Pandit, Advocate, for two interested persons, namely S/Sh. Varinder Dhawan and Rakesh Malhotra.
Chander Bhusan Barowalia, Judge The present regular second appeal has been maintained by the appellant (since deceased), who was defendant No. 1 before the learned trial Court (hereinafter to be called as "defendant No. 1"), laying challenge to the judgment and decree of reversal, dated 17.10.2015, passed by learned District Judge, Shimla, H.P., in Civil Appeal No. 59- 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 2 S/13 of 2008, whereby the judgment and decree, dated 08.08.2008, passed by learned Civil Judge (Sr. Div.), Court No. .
1, Theog, District Shimla, H.P, in Civil Suit No. 188/1 of 2004, was set aside and suit of the plaintiff, who is respondent No. 1 before this Court (hereinafter to be called as "the plaintiff) was decreed.
2. Brief facts, which are necessary for determination and adjudication of the present appeal, can be summarized as under:-
The plaintiff-State has filed a suit for declaration against the defendants seeking declaration that the judgment and decree dated 31.12.1997, passed by learned Sub-Judge, Theog, in Civil Suit No. 78/1 of 1997, upheld by learned District Judge, Shimla in Civil Appeal No. 104-S/13 of 1998 and thereafter by this Hon'ble High Court in regular second appeal, is illegal, null, void ab initio and not binding upon the plaintiff-State, as the same has been obtained by erasing, tampering and forging the revenue record, as well as the same has been obtained after exercising fraud, cheating, thus the same is result of misrepresentation of facts.
3. As per the plaintiff, in the aforesaid suit defendant No. 1 has sought two reliefs against defendant No. 2, Rajinder Kumar Thapar, i.e. the relief of permanent prohibitory injunction and declaration to the effect that defendant No. 1 ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 3 has become the owner of land bearing Khasra Nos. 407/408, measuring 2 Bighas and 1 Biswa, situated in Village Manewal, .
Tehsil Kotkhai, District Shimla (hereinafter to be called as "the suit land"), on the basis of adverse possession, which is substantiated by him by long entries in the revenue record. The case of the plaintiff is that defendant No. 2 had contested the suit half heartedly and he admitted that 1/3 rd profit of produce of the suit land was to be paid to him by defendant No. 1 in lieu of the expenses incurred by him for improvement of the land. In the said suit, it has also been contended by defendant No. 1 that defendant No. 2 avoided making payment of amount spent on reclaiming the land and due to this reason, he has also refused to pay 1/3 rd of the produce to him.
4. The plaintiff pleaded that the suit filed by defendant No. 1 was collusive in nature, as the same has been filed in collusion with defendant No. 2. To prove this fact, it has been pleaded that in the said suit, defendant No. 2 had not cross-examined the witnesses of the plaintiff and he has also not led any evidence. As per the plaintiff, the suit has been filed by defendant No. 1 with ulterior motives and without any basis. The suit was also stated to be filed by the defendants in collusion with each other.
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5. According to the plaintiff, the defendants in collusion with the revenue officials had forged the revenue .
record by tampering and erasing revenue entries pertaining to the suit land and when this fact was brought to the knowledge of the plaintiff-State, an inquiry was ordered to be conducted by Sub Divisional Officer, Theog, who submitted his report on 27.05.1995. Subsequently, the State of Himachal Pradesh has filed an appeal against the judgment and decree, passed by the learned Sub-Judge in Civil Suit No. 78/1 of 1997, before the learned District Judge, Shimla, which was dismissed on 24.02.2004 with the observation that the plaintiff-State may avail remedy available under law.
6. As per the plaintiff, the defendants in connivance with the revenue officials S/Sh. Bhajan Dass, Kanungo, Beli Ram, Patwari, and K.C. Dutta, the then A.S.O., have erased and tampered the revenue record without following the procedure prescribed in this regard. In the inquiry, it has been found that Sh. Bhajan Dass, while working in the record room, Theog, has erased the word 'Malkan' out of the word 'Makbuja Malkan' in column No. 5 against the suit land, as per the Jamabandi Parat Sarkar for the year 1969-70. Further in column No. 9, the entry 'Bila Lagan Bawaja Tasuwwar Malkiat' was added, for which, he was not competent. Similarly, in column No. 5 of Jamabandi Parat Sarkar for the year 1974-75, ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 5 pertaining to Village Manewal in respect of Khata/Khatauni No. 30/67, Khasra No. 407/408 and in Jamabandi for the year .
1979-80 , Khasra No. 72/68 and Khasra No. 408, in the Jamabandi for the year 1984-85, Khata/Khatauni No. 36/73, Khasra No. 408, in the Jamabandi for the year 1989-90, Khata/Khatauni No. 37/72, Khasra Nos. 407/408, the entry as 'Makbuja Malkan' has been erased and the entries in favour of Subhash Chander Bhalla as 'Sakin Deh', as cultivator, were made. As per the plaintiff, the said entries were made with different handwriting and ink.
7. Further, it was the case of the plaintiff that Beli Ram, Patwari, posted at Patwar Circle Purag, Tehsil Kotkhai had also connived with the defendants and he changed page No. 16 and 17 of the Parat Patwar of the Jamabandi for the year 1969-70 pertaining to the land bearing Khata/Khatauni No. 9/20, 9/21, 10/22/, 11/23 and 12/24 and these entries have been substituted with the new pages. It has been further pleaded that the handwriting and ink of these entries is different and subsequent entries were also got changed/ corrected in favour of defendant No. 1 by the revenue officials. Similarly, the entries in Rapat No. 58 in Rojnamcha Vakayati for the year 1970-71, were also got changed. As per the plaintiff, in Rapat, the entries were earlier made by mentioning, "Rapat No. 58, today in the presence of owner ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 6 and tenants of village Manewal, Girdawari was done and no change found", however from the inspection of the .
Rojnamcha, it has been found that in the above Rapat word 'Nahin' has been changed into 'Zail' after rubbing the previous entries and the change in the cultivation with regard to Khasra No. 408 has been entered. All this has been done by revenue officials to give undue advantage to defendant No. 1 and thereafter Assistant Settlement Officer, Kinnaur and Shimla has issued an agriculturist certificate in his favour and taking advantage of this, defendant No. 1 purchased land. As per the plaintiff, it has given the details of various transactions made by defendant No. 1, as well as his son while purchasing the land in District Solan and when this fact was brought to the notice of Deputy Commissioner, Solan, the certificate issued by K.C. Dutta was sent to Deputy Commission, Shimla, which on verification, found to be fake, thus, proceedings under Section 118 of the H.P. Tenancy and Land Reforms Act, were initiated. A criminal case, bearing F.I.R. No. 106/98, under Sections 420, 467, 468, 471 and 120-B IPC, read with Section 13(2) of the P.C. Act was also registered against the defendants, as well as K.C. Dutta, Patwari and Kanungo concerned.
8. According to the plaintiff, it has also given the details, as to how the entries in Rapat No. 58, dated ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 7 23.10.1970 of Rojnamcha Vakyati for the year 1970-71, Patwar Circle Purag, were forged. It has been pleaded that .
column of remarks in the Jamabandi for the year 1984-85 pertaining to Khasra Nos. 407 and 408, has been mortgaged alongwith the land bearing Khata No. 18/37 with Uco Bank for a sum of Rs. 50,000/- vide Rapat Rojnamcha No. 388 of 1982-83, which as per the plaintiff, clearly shows the factum with regard to forgery. Further, the entries in mutation No. 256, dated 19.12.1988, pertaining to the land comprised in Khata No. 36/73 has been shown as Makbuja Malik, thus, the entries in column of possession in mutation No. 256, dated 13.12.1988 pertaining to the suit land are stated to be forged subsequently. As per the plaintiff, defendant No. 1 has wrongly shown to be the local resident of village Manewal, however in Rojnamcha Vakyati, for the year 1993-94 for Patwar Circle Purag, vide entry No. 254, dated 23.04.1994, he has been shown as resident of House No. 1702, Sector 22-B, Chandigarh.
9. The suit of the plaintiff has been contested by defendant No. 1 by filing separate written statement, wherein preliminary objections qua maintainability, locus standi, cause of action and principle of resjudicata, under Order 2, Rule 2 of CPC were taken. The allegations qua tampering the revenue record have been denied. It has been reasserted that he has ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 8 been coming into open, uninterrupted, hostile and cultivating possession of the suit land, as such, he has rightly been .
declared as owner in possession of the suit land.
10. Defendant No. 2 has also filed written statement, wherein the allegations of fraud and collusion have been denied. He has also denied that he contested the suit half heartedly. It has been further stated in the written statement that a false criminal case has been registered against him.
11. On the pleadings of the parties, the learned trial Court framed the following issues for determination and adjudication of the case:
"1. Whether the judgment and decree dated 31.12.1997 in case No. 78/1 of 1997 is result of collusiveness and fraud, as alleged? OPP
2. Whether the said judgment and de-
cree has been obtained by erasing, tampering and forging the record, as alleged? OPP
3. Whether the suit is not maintainable?
OPD
4. Whether the plaintiff has no locus standi? OPD
5. Relief."
12. After deciding issues No. 1, 2 and 4 in negative and issue No. 3 in affirmative, the suit of the plaintiff was dismissed. Subsequently, the plaintiff maintained an appeal before the learned first Appellate Court, which was allowed and the judgment and decree, passed by the learned ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 9 trial Court has been set aside. Hence the present regular second appeal, which was admitted for hearing on the .
following substantial questions of law:
"1. Whether the findings of learned first Appellate Court are a result of complete misreading of pleadings, evidence and the law as applicable to the facts of the case and particularly documents Ext.
DC-1 to DC-44, as also DX, PW-1/A to PW-1/C and PW-3/A and PW-3/B, Ext. PA to PE, and as such palpably erroneous perverse and illegal and if so to what effect?
2. Whether the learned first Appellate Court while setting aside the judgment of the learned trial Court has traveled beyond the pleadings and evidence of respondent No. 1 and the issues framed in the case, thus erred gravely in setting aside the judgment of the learned trial Court?
3. Whether the learned first Appellate Court acted with material illegality and irregularity in admitting documents Ext. PA to PZ and PZ-1 to PZ-5 as also Ext. PF in the statement of the learned counsel for the respondent without formal proof of the same under the Indian Evidence Act and if so, to what effect?
4. Whether the learned first Appellate Court acted with material illegality and irregularity in not affording an opportunity to the appellant to lead evi- dence in rebuttal to the aforesaid addi- tional evidence and if so, to what effect?
5. Whether the learned first Appellate Court has erred gravely and acted with material illegality and irregularity by ignoring or misinterpreting the evidence and the provisions of Section 2(2) of the H.P. Tenancy and Land Reforms Act, 1972 and if so, to what effect?"::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 10
13. Leaned Senior Counsel appearing on behalf of the appellants has argued that the Collector, who has maintained .
the suit, has never appeared in the witness box to substantiate/prove the allegations, as made in the plaint with regard to erasing, tampering, forging the revenue record and playing fraud, cheating and misrepresentation of facts. He has further argued that learned first Appellate Court while accepting the appeal has taken into consideration the report of SDM, Ext. PW-1/A and passed the judgment, which is totally wrong and against the facts of the case. He has referred to para-74 of the judgment of learned first Appellate Court and argued that learned first Appellate Court has totally misconstrued the documents and facts. Learned Senior Counsel has further argued that Ext. PA, PB and definition under the H.P. Tenancy and Land Reforms Act are not taken into consideration by learned first Appellate Court and thus, the findings recorded by learned first Appellate Court are perverse.
14. On the other hand, learned Additional Advocate General has argued that the impugned judgment and decree is as per law, as the state has proved on record that earlier decree was obtained by misrepresentation of facts, forgery, fraud and tampering the revenue record. Lastly, it has been argued that as the impugned judgment and decree is passed ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 11 after appreciating the evidence and law correctly, the same needs no interference and the present appeal be dismissed.
.
Learned counsel for respondent No. 2 adopts the arguments of the State. Mr. Vipin Pandit, Advocate, for S/Sh. Varinder Dhawan and Rakesh Malhotra, has argued that the earlier judgments and decrees have been obtained by playing fraud on the Court and tampering with the revenue record, which facts have been duly proved by the State. He has further argued that additional evidence produced before the learned first Appellate Court has rightly been taken into consideration and decree of reversal, passed by the learned first Appellate Court is as per law.
15. In rebuttal, learned Senior Counsel appearing on behalf of the appellants has argued that the decree, which was challenged on the grounds taken in the plaint, was though assailed on various grounds, however none of the ground has been proved, neither the person who has to prove the averments, i.e. the Collector, has appeared in the witness box. He has further argued that the judgment passed by the learned first Appellate Court is after referring the material which was not part of the record, as such, the same is complete misreading of the evidence and non-application of mind.
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16. Learned senior counsel in support of his arguments has placed reliance upon the following judicial .
pronouncements:-
(1) AIR 1989 (SC) 2097.
(2) AIR 2001 (SC) 2171.
(3) (2010) SCC 491.
17. A Division Bench of Hon'ble Supreme Court in Krishna Ram Mahale vs. Shobha Venkat Rao, AIR 1989 (SC) 2097, have held as under:
"9. This proposition was also accepted by a Division Bench of this Court in Ram Rattan v. State of Uttar Pradesh (1977) 2 SCR 232:
(AIR) 1977 SC 619). The Division Bench comprising of three learned judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the tres-
passer has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking re-
course to the remedies under the law. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a trespasser at all, as she had entered into the possession of the restaurant business and the premises where it was conduced as a licensee and in due course of law. Thus, defendant No. 3 was not entitled to dispossess the plaintiff un- lawfully and behind her back as has been done by him in the present case. It was pointed out by Mr. Tarkunder that some of the observations referred to above were in connection with a suit filed under Section 6 of the Specific Relief Act, 1963 or analogous provisions in the earlier Specific Relief Act, 1877. To our mind, this makes no difference ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 13 in this case as the suit has been filed only a few weeks of the plaintiff being unlawfully deprived of possession of the said business and the premises and much before the .
period of six months expired. In view of the aforesaid conclusions arrived at by us, we do not propose to consider the question whether the agreement between the plain-
tiff and defendant No. 3 amounted to a li-
cence or a sub-lease."
18. A three Judges Bench of Hon'ble Supreme Court in Madhukar vs. Sangram, AIR 2001 (SC) 2171, have held as under:
"6. In Santosh Hazari v. Purushottam Tiwari (Dead) by L.Rs. (2001) 2 JT (SC) 407:
(2001 AIR SCW 723) this Court opined (para 15 of AIR):
The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court.
While reversing a finding of fact the Appellate Court must come into close quar- ters 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."
19. A Division Bench of Hon'ble Supreme Court in LIC of India vs. Ram Pal Singh Bisen, (2010) SCC 491, have held as under:
"23. No doubt, it is true that failure to prove the defence does not amount to an ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 14 admission, nor does it reverse or discharge the burden of proof of the plaintiff but still the duty cast on the defendants has to be discharged by adducing oral evidence, .
which the appellants have miserably failed to do.
24. The appellants, even though a defaulting party, committed breach and failed to carry out a legislative imposition, then had still to convince this Court as to what was the just cause for doing the same. Thus, looking to the matter from any angle, it is fully established that the appellants had miserably failed to prove and establish their defence in the case.
(25) We are of the firm opinion that mere admission of a document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law."
20. The judgments, as cited by the learned Senior Counsel appearing on behalf of the appellants (supra), including entire pleadings, evidence and the judgments, earlier passed in favour of the appellant were gone into minutely.
21. At the very outset, it is worthwhile to note here that earlier the suit of the appellant was decreed and appeal of the State against the said suit was dismissed by learned first Appellate Court. Thereafter the State has preferred regular second appeal before this Court, which was also dismissed. On the other hand, the criminal proceedings initiated by the State has resulted into acquittal of the accused persons and the acquittal has attained finality. Now ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 15 this Court like to consider the evidence which has come on record before the learned trial Court. The Kanungo, DC Office .
Shimla, who was examined as PW-1, has produced on record inquiry report, conducted by Sh. Rajiv Sharma, the then SDM Theog, pertaining to forgering of revenue record in village Manewal, Patwar Circle Purag, Tehsil Kotkhai, District Shimla. He has also brought the record of inquiry report of ADM Shimla against Bhajan Dass, Kanungo, under Rule 14 of CCS and CCA Rules. He has produced on record the forwarding letters alongwith report, which are Ext. PW-1/A and Ext. PW-1/B and dismissal order of Beli Ram, Patwari, Ext. PW-1/C and of Bhajan Dass, Kanungo, Ext. PW-1/D. He has also recognized the signatures of Sh. Rajiv Sharma, under circle in the inquiry report. In cross-examination, this witness was unable to say anything with regard to the fact whether the defendants were associated in the inquiries or not, however he admitted that there was one criminal case also qua the same subject matter, in which all the accused persons has been acquitted by the Court.
22. PW-3, Clerk, Record Room Solan, has brought the summoned record and stated that DC Solan has dropped the proceedings under Section 118 of H.P. Tenancy and Land Reforms Act against defendant No. 1. PW-4, Jr. Assistant, Record Room Thoeg has stated that certified copies of ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 16 judgment passed in Civil Suit No. 78/1 of 1997, decided on 31.12.1997 is Ext. PW-4/A. PW-5, Surender Verma, Patwari, .
Patwar Circle Panog, has stated that record of Manewal chak, including Jamabandies for the year 1963-64, 1969-70, 1979- 80, 1984-85 and 1989-90, Khasra girdawari 1976-77, 1970-71, 1980-81, 1986-87, 1989-90, Roznamcha 1969-70, 1970-71, 1972-73, 1973-74, 1974-75, 1975-76, 1971-72, 1989-90, 1990-91, 1993-94 were taken into possession in case FIR No. 106/98 and he has not issued anything on the basis of this record, as record was lying in the Police custody. He has further stated that certified copy mark PW-5/A was issued by him. He prepared Ext. PW-1/B (containing 18 pages) and handed over the same to Inquiry Officer during inquiry proceedings. This witness was deferred and on 18.02.2008 has been examined again and stated that he has given Nakal Rapat Roznamcha, Ext. PW-1/B to SDM Theog from his record in an inquiry, however he feigned ignorance against whom inquiry was conducted. He admitted that Ext. PW-1/B (page 1 to 3), Khasra Girdawari, Ext. PW-1/B (pages 6 to 8) and Khasra Girdawari for the year 1979-80 (pages 9 to 23), were given by him from his record as photocopies. He has also admitted that Jamabandies Exts. PA to PE were issued during his tenure. In his cross-examination, he admitted that Girdawari is being conducted and entered in the revenue record twice a year, as ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 17 per the factual position on the spot and after 1994, he entered the Girdawari entries in the revenue record, according to .
which, defendant No. 1 is shown to be in possession of the suit land. He has not make any inquiry pertaining to Khasra Nos. 407 and 408. Ext. PW-1/B, pages 1 to 23, were given to SDM Theog at Theog, as photocopies. He feigned ignorance whether during inquiry, SDM Theog has recorded the statements of any local person, Patwari, Kanungo or not. He has stated that in his presence, the statements of any person were not recorded. He has admitted that in the year 1997, as per the direction of DC, entry of defendant No. 1 was deleted from Khasra Nos. 407 and 408. He has further stated that regarding mutation No. 276, dated 18.06.1997, no notice was issued to defendant No. 1. He has stated that in Khasra Nos. 407 and 408, there is no right of the Government. Exts. PA to PE were not prepared by him. He has further stated that when Jamabandi was prepared, the same was written by Patwari, compared by Kanungo and attested by the Assistant Collector Second Grade.
23. PW-6, Ram Krishan Patwari, stated that he has brought the summoned record pertaining to year 2001-02, which is latest record and as per this record, Khasra No. 407 (539) and Khasra No. 408 min, new Khasra No. 539 is shown as Bagicha-Bakhal-Aval-Faldar and owner of this land is ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 18 Rajender Kumar. He has not given any documents to the Police pertaining to this case and is there is no documents attached .
in this case prepared by him. Copy of Misal Haqiyat is Ext. PW- 6/A. Copy of mutation No. 276 is Ext. DA. He has admitted that prior to this mutation, name of Subhash Chander Bhalla was deleted from the column of possession. He feigned ignorance whether in F.C. appeal No. 64-2 of 2004, dated 12.07.2005, mutation No. 276 has been set aside. The settlement proceedings, Ext. PW-6/A, were completed in the year 2001-02 and in remarks column some words were erased. Self stated that these words were erased during settlement operation.
24. PW-7, Hans Raj, has stated that Ext. PW-1/B (pages 1 to 23), pertains to Patwar Circle Purag and the same is correct as per the record. In cross-examination, this witness has stated that today he has not brought any record pertaining to this case. He admitted that as per Ext. DX-1, Assistant Collector has also been impleaded as party. He has also admitted that in the Rapat Rojnamcha, the ink impression on every page is uneven. He has admitted that in the revenue record pertaining to Khasra Nos. 407 and 408, name of defendant No. 1 has been shown in the column of cultivation.
25. PW-2 and PW-8 are formal witnesses.
26. To rebut the aforesaid evidence, defendants have examined four witnesses. DW-1, Subhash Chander Bhalla, has ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 19 stated that he filed a civil suit against Rajender Kumar Thapar in April, 1997, which was decided in the month of December, .
1997, the copy of said order is Ext. PW-4/A. As per him, he filed the suit against Rejender Kumar Thapar/defendant No. 2, as he was trying to dispossess him from the land. He has stated that the land in Khasra Nos. 407 and 408, has been given to him by defendant No. 2 in the year 1966-67 for cultivation and at that time, this land was barren and it was agreed between him and defendant No. 2 that he will cultivate the land and will give 1/3rd share of profit to defendant No. 2 and 2/3rd share of profit shall be taken by him. It has been further agreed between the parties, that they will bear development charges on the suit land in equal proportion, however defendant No. 2 never paid development charges and, therefore, he has also not paid 1/3rd share of profit to defendant No. 2. As per this witness, for the first 12-13 years, he used his land for floriculture and thereafter he planted apple orchard on the same. He further stated that he also used to cultivate land in village Shahon near Garog. As per this witness, he obtained the land for cultivation from one Trilok Chand and later on Trilok Chand had executed GPA in his favour and his possession is duly recorded in the Jamabandies, as well as in the Girdawaries pertaining to the suit land. He alleged that mutation No. 276 was sanctioned without issuing ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 20 any notice to him. He proved the copy of mutation, Ext. DX. As per this witness, the said decision was challenged before F.C. .
Shimla and thereafter the matter was remanded back to the A.C. 2nd Grade. He stated that in criminal case, he has been acquitted vide judgment, Ext. DX. As per this witness, the Government has no concern whatsoever with the suit land. In cross-examination, this witness has admitted that Ext. DC-1 is his handwriting and the reports of handwriting expert are Ext. DW-1/B to Ext. DW-1/D. He has stated that the inquiry report, Ext. PW-1/B was prepared by the SDM in his absence. He denied that till today defendant No. 2 is owner of the suit land. Self stated that the land is in his possession and he is cultivating it and there is apple orchard over the same.
27. DW-2, Rati Ram, Sr. Assistant, Electricity Sub Division Kotkhai has stated that in Gram Panchayat Garog, an electricity meter has been installed in the name of defendant No. 1, which was installed on 04.07.1983.
28. DW-3, Bhag Mal, has stated that he is residing at village Manewal since the time of his birth. He sold the land to defendant No. 2 in the year 1970 and has handed over the possession of same prior to 1970. The agreement took place prior 5-6 years from the year 1970 and since then defendant No. 1 is in possession of the land. As per this witness, when he sold the land, the same was barren and Khasra No. of the ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 21 same was 408. The land was made cultivable by defendant No. 1. Earlier defendant No. 1 used the land for floriculture .
and thereafter he planted apple orchard on the same. He further stated that he has never seen defendant No. 2 in possession of Khasra Nos. 407 and 408. As per this witness, nowadays there is apple orchard on the suit land and over some portion, there is road. Towards the above side of land of defendant No. 1, there is land of defendant No. 2 and land of one Rajender Singh. Village Shahon is at a distance of 9-10 Kms from the Village Manewal. In cross-examination, this witness has admitted that defendant No. 1 belongs to Chandigarh. Self stated that he used to come from village Shahon. He has further admitted that defendant No. 1 cultivates the land through labourers.
29. DW-4, Rajender Singh, has stated that he is residing at village Manewal since his birth. He know defendant No. 1, as land of defendant No. 1 is adjoining to his land and Khasra Nos. of the said land are 407 and 408. There is a common boundary wall of his land and land of defendant No.
1. He has further stated that from the very beginning, he has seen defendant No. 1 in possession of the land and has never seen defendant No. 2 cultivating the land, bearing Khasra Nos. 407 and 408. He has stated that now, there is an apple orchard over the aforesaid Khasra Nos. and over some portion, ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 22 there is road. The Orchard of defendant No. 2 is above the land of defendant No. 1. The orchard of apple is 25 to 27 years .
old. He has admitted that defendant No. 1 cultivates the land through labourers.
30. The case of the plaintiff is that the judgment and decree, dated 31.12.1997, passed by the then learned Sub- Judge, Theog in civil suit No. 78/1 of 1997 and upheld by the learned District Judge, Shimla in Civil Appeal No. 104-S/13 of 1998 is illegal, null, void ab initio and not binding on the State of H.P., as the same has been obtained by erasing, tampering, committing forgery in the revenue records and also by playing cheating and misrepresentation in connivance with the revenue officials. Therefore, the impugned judgment and decree be declared illegal, null and void. This Court has also gone through the averments, as has come in the defence that after registration of the criminal case against some officials of Revenue Department, in which they were ultimately acquitted, the present suit has been filed. There is speciment handwriting of defendant No. 1, Ext. DC-1, which was sent to Government Examiner of question documents. As per the report of Question Document Examiner, he has nowhere stated that the documents, i.e. Exts. PA to PE, which are Jamabandies, were tampered, nor he has stated that Khasra Girdawari and other revenue documents, which are on record ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 23 were tampered. Further, the plaintiff has failed to prove its case under Sections 420, 467, 468, 471, 120-B of IPC and .
under Section 13 sub-clause 2 of the Public Corruption Act, before the learned Special Judge (Forest), shimla and the said order of acquittal has never been challenged by the State in the higher Court.
31. The second allegation of the plaintiff is that defendant No. 1, in connivance with the revenue officials, i.e. field Kanungo, Bhajan Dass, Patwari Baile Ram and one ASO K.C. Dutta, has tampered the revenue documents, i.e. Jamabandi Parat Sarkar for the years 1969-70 to 1989-90 and also tampered Khasra Girdawari and Rapat by incorporating his name as 'Kashtkar' and in column No. 9 of the Jamabandi for the year 1969-70. It is admitted fact that record room was under the direct supervision of SDM, Theog and if record was in Tehsil headquarter, then it was in the direct supervision and control of Tehsildar and if the record was in Patwar Circle, it was definitely in the custody of Patwari. However, the allegations of the plaintiff is that record for the years 1969 to 1990 was tampered, which shows that defendant No. 1 had direct access to the record continuously for 21 years. But, when defendant No. 1 was not custodian of the Revenue Department and the record was in the custody of the Revenue Department, as to how he can tamper, erase or forge the ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 24 revenue documents continuously for 21 years. Furthermore, handwriting of defendant No. 1 was sent to Examiner of .
Question Documents in the criminal case, who in his report has opined that handwriting of defendant No. 1 does not tally with the tampered record, as alleged by the plaintiff.
32. As far as oral evidence are concerned, DW-3, Bhag Mal has admitted that he sold land to defendant No. 2 in the year 1970 and he has handed over the possession of the same prior to 1970 and prior to 5-6 years since 1970, he has seen defendant No. 1 in possession of the land. Similarly, DW-4, whose land is adjacent to the land of defendant No. 1 has stated that defendant No. 1 was cultivating his land through labourers and earlier the land was being used for floriculture purpose, but now, there is an apple orchard on the same and apple plants are 25 to 27 yeas old. It appears from mutation No. 190, Ext. PW-1/B (page-4) and mutation No. 204, Ext. PW- 1/B (page-5) that defendant No. 2 purchased the land and vide these mutations, he become owner of the land bearing Khasra Nos. 407 and 408. However, the Jamabandi, Ext. PE clearly shows defendant No. 1 in possession of the land, bearing Khasra No. 408. Similarly, in Jamabandies, Exts. PA to PD, for the years 1974-75 to 1989-90, defendant No. 1 is recorded in possession of the suit land, bearing Khasra Nos. 407 and 408. Even witnesses of the plaintiff, such as PW-5, who took the ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 25 charge of Patwari after Beli Ram Patwari, has admitted in his cross-examination that he prepared Girdawari after 1994, in .
which, defendant No. 1 is recorded in possession of the land. PW-6, Ram Krishan, has also admitted in his cross-examination that settlement operation has been completed in the year 2001-02 and copy of Misal Haqiyat is Ext. PW-6/A. As per this witness, in remarks some words were erased, however he has self stated that those might be erased by the Settlement Authorities. He has further admitted that since 1969-70 continuously defendant No. 1 is in possession of the land. As per PW-5, even after 1994, possession of defendant No. 1 is recorded over the suit land.
33. Now coming to the inquiry conducted by Sh. Rajiv Sharma, SDM Theog. As per the statement of PW-5, SDM Theog has asked him to furnish photostat copies of the revenue record and in his statement, he could not state anything whether Kanungo, Patwari or any other independent witness were summoned during the inquiry proceedings or not, which shows that SDM Theog, has given his inquiry report, on the basis of photostat copies of the documents, which under the law, is not permissible. Coming to the next allegation of the plaintiff that judgments and decrees, passed by learned Sub-Judge, Theog in Civil Suit No. 78-1 of 1997 and upheld by learned District Judge, Shimla in Civil Appeal No. ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 26 104-S/13, is illegal, null and void, as the same have been obtained by way of fraud, cheating and misrepresentations of .
facts. This Court finds that the said decree has been passed by the learned Sub-Judge, Theog, on the basis of statements of the witnesses and Jamabandies on record and if the other party in that case has failed to furnish their evidence or if the evidence of the plaintiff has not been properly cross- examined, it does not mean that the said decrees are collusive and even if the provisions of Section 118 of H.P. Tenancy and Land Reforms Act are violated, the State was having remedy to proceed in the Revenue Court. Merely not cross-examining the witnesses of the plaintiff properly and not furnishing the evidence, does not mean that decrees are collusive in nature.
34. From the above evidence, it is crystal clear that there is no tampering or any other mischief in the revenue record. The only thing that some criminal case has been instituted against the officials of the Revenue Department, in which they were ultimately acquitted, cannot be a ground to say that there was any tampering in the revenue record, without any proof in civil case. It has specifically come in the evidence that defendant No.1 was tilling the land and he thereafter raised an orchard on the land of defendant No. 2, who was not keeping good health from the very beginning. This aspect is fortified by the revenue entries and oral ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 27 evidence, which are long, continuous and started in the 60's and continued for more than 21 years, before legal action .
started. In these circumstances, it cannot be said that the suit, so maintained by defendant No. 1, against defendant No. 2, has wrongly been decreed. The learned counsel for respondent No. 2, though in the present appeal has vehemently argued that the decree was obtained by fraud, however he has never assailed the decree passed by the learned Civil Judge, Theog, which has attained finality and only the State has challenged that decree, that too after many years, when right to challenge the same for present respondent No. 2 has become time barred.
35. Definitely, present respondent No. 2 is interested in the land, which defendant No. 1 has taken over on the basis of revenue entries appearing in his favour and thereafter defendant No. 1 was having right in his favour and there is nothing wrong in getting that right ascertained from the Court. Simply by leveling allegations against the party and without proving them, the plaintiff cannot be given a decree, as prayed for. Even the allegations are against the record, as maintained by the State in the usual course of business. When asked in the Court with regard to the finality of the judgment in the criminal case, it has been brought to the notice of the Court that the said judgment has attained finality. Meaning ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 28 thereby, that the allegations leveled by the State in the criminal case have not been accepted by the criminal Court.
.
Though, findings of the criminal Court cannot be said to be binding on the civil Court, however even in the civil case no evidence has been led to prove the allegations, as has been averred in the plaint. It seems that there are many interested persons against defendant No. 1, who for the reasons best known to them or behind defendant No. 1 were harassing him continuously. Even the conduct of such persons is amply clear as they had moved the application in the learned first Appellate Court to become party, however that application was dismissed. They had also moved application before this Court, which was withdrawn. Thereafter again they filed applications before this Court to become party, which were again withdrawn with a prayer that they be heard in the main appeal. In these circumstances, can a person be allowed to undergo the agony of long litigation and making appellant to spent his whole life in that long litigation is nothing but abuse of the process of law, at the hands of those interested persons.
36. Learned first Appellate Court while recording its findings has referred to the documents which were never proved in accordance with law and even the appreciation of those documents, i.e. unproved report of Sh. Rajiv Sharma is ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 29 taken into consideration by ignoring the evidence of DW-3 and DW-4. Learned first Appellate Court while recording its findings .
contrary to the findings of learned trial Court was required to give some reasons on the facts, why those findings are set aside, however learned first Appellate Court in a slip shot manner without even going through the findings as recorded by the learned trial Court and without discussing the evidence, though it was a Court of fact, has given the new findings without appreciating the law, evidence and facts correctly. Learned first Appellate Court even did not care to see the provisions of H.P. Tenancy and Land Reforms Act, 1972, before 1994, wherein It has been made clear that a cultivator of the land is an agriculturist in Himachal Pradesh, thus this Court has no other view, then to hold that the findings recorded by the learned first Appellate Court are totally perverse. The learned first Appellate Court has given complete misreading to documents Exts. DC-1 to DC-44, as also DX, PW-1/A to PW-1/C, PW-3/A, PW-3/B and PA to PE and has not even care to go through many documents nor referred them in the judgment. So, the findings recorded by the learned first Appellate Court are perverse and substantial question of law No. 1 is answered accordingly. At the same point of time, this Court finds that on one day, when arguments were being heard, learned first Appellate Court has taken some documents from the appellant ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 30 and without there being any proof of those documents, without there being any evidence with regard to those .
document, without those documents being per se admissible, make a reference of those documents and formed an unreasoned opinion and set aside the well reasoned judgment of learned trial Court. So, the findings recorded by the learned first Appellate Court which were beyond the pleadings and evidence, as has come on record and as the learned first Appellate Court has acted with material illegality and irregularity in admitting documents, Exts. PA to PZ and PZ-1 to PZ-5, as also Ext. PF in the statement of the learned counsel, as stated hereinabove, substantial questions of law No. 2 to 4 are answered holding that the findings recorded by learned first Appellate Court are perverse.
37. As discussed hereinabove, the learned first Appellate Court has not taken into consideration the original provisions, as contained under the H.P. Tenancy and Land Reforms Act, 1972, which makes a person, who is simply a cultivator, to be an agriculturist, but has taken into consideration the amended provision, which amendment came after decades. The right is claimed on the basis of continuous and uninterrupted entries in favour of defendant No. 1 against defendant No. 2 in the earlier suit. However, defendant No. 2 has not assailed those findings and thereafter ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 31 managed to harass defendant No. 1 by instituting proxy litigation in the one form or the other, which is clear from the .
stand taken by learned counsel for defendant No. 2 in the present appeal and the act of interested persons against the appellant, i.e. entering into the litigation from time to time by moving applications and thereafter delaying the matter by withdrawing those applications in the learned Courts below and even before this Court twice, shows that it is an abuse of the process of Court. At the same point of time, learned first Appellate Court has not properly interpreted the provisions of CPC, including the provision of Order 2, Rule 2 CPC, so findings, as recorded by learned first Appellate Court are totally perverse and substantial question of law No. 5 is answered accordingly.
38. The revenue entries throughout show that the entries for more than 20 years in favour of the defendant No. 1/appellant are Bila Lagan Bawaja Tasuwwar Malkiat. Which means non payment of rent because he claims himself to be owner of the land. This entry is made in the column of rent regarding person in adverse possession. The presumption would be that the person in whose favour such entry is made is the owner. This has been held in 1989(1) PLR 571. Now can presumption attached to the long standing entries, coupled with the fact that defendant No. 1, later on raised an apple ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 32 orchard on the land, or earlier he was cultivating that land can be ignored without any rebuttal to that effect. This Court finds .
that learned first appellate Court in total disregard to the law, as settled till date, i.e. long standing uninterpreted revenue entries, which in the present case has been supported with oral evidence, showing defendant No. 1/appellant as the tiller of the land and later on his raising an apple orchard on the land and without there being any rebuttal on the side of the other party, the findings recorded by learned first Appellate Court are perverse.
39. As far as the findings in the criminal case are concerned, the criminal proceedings are initiated with respect to tampering the revenue record by the revenue officials, but the same has now attained finality and criminal Court has not found favour with the prosecution and acquitted the accused persons. The plaintiff-State has also tried to prove those points in the present case also, but none of the witnesses have supported the version, as made out by the State in the suit, rather the officials who were conversant with the facts, as alleged in the plaint, have not chosen to appear in the Court as witnesses, as a result of which, the plaintiff-State has miserably failed to prove its case and suit was rightly dismissed by learned trial Court, but the findings recorded by learned first Appellate Court are just on the basis of surmises ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 33 and conjectures and without application of mind to the facts and evidence on record. Though, it is alleged that there is a .
different handwriting with word Sakin Deh, but this fact was never proved, nor any evidence to that effect has been proved by the plaintiff-State. As already stated hereinabove, the continuous findings of the Criminal Court, Civil Court upto this Hon'ble High Court earlier, found defendant No. 1/appellant in adverse possession of the land and decree was granted in his favour, but there is no evidence to the contrary led by the plaintiff-State, where the misrepresentation is and how the decree has been obtained by fraud. Simply on the basis of surmises and conjectures, learned first Appellate Court has interfered with the well reasoned judgment of learned trial Court, so the findings recorded by learned first Appellate Court are required to be set aside. Applying the law as laid down by Hon'ble Supreme Court in aforementioned decisions, it is clear that defendant No. 1 was owner in possession of the land, as his possession and continuous tilling of the land for decades to the knowledge of the true owner has culminated into his ownership.
40. This Court has also considered the arguments, as advanced by Mr. Vipin Pandit, Advocate, for S/Sh. Varinder Dhawan and Rakesh Malhotra, that the findings of learned first Appellate Court are required to be affirmed, because of the ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 34 report of SDM. However, it is not understandable why these two applicants are interested in the present proceedings and .
what is the reason that they could manage to place on record the report of the SDM without getting the SDM examined in the Court. It is also not understandable that why and under what circumstance and at whose instance the SDM gave the report at that relevant time. This Court has also failed to understand why the aforesaid applicants are so interested that they are moving applications from time to time in different Courts for getting the decree set aside. The presumption is that they might have some vested interest, including the interest of present respondent No. 2 to get back the land and it might be a proxy litigation of respondent No. 2. As discussed hereinabove, as the Collector has never appeared in any Court to prove his report, the same is totally against the revenue record maintained from decades by different officials at different point of time. The plaintiff has failed to prove any tampering in this case or in criminal trial. So, the arguments of Mr. Vipin Pandit, Advocate, are without any force, because the report of the SDM is nothing but a waste paper, as he has never appeared in the witness box and the same is also against the record and not proved or substantiated in any proceeding against the present appellant till date. ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP 35
41. The net result of the above discussion is that the findings, as recorded by the learned first Appellate Court are .
against the law, perverse and liable to be set aside. So, the present appeal is allowed and the judgment and decree, passed by the learned first Appellate Court is set aside and judgment and decree, passed by the learned trial Court is affirmed. Though, the present is a fit case to impose special costs/exemplary costs, against the third party, but since they have withdrawn their applications, this Court finds it in the interest of justice that the parties be left now to bear their own costs.
42. In view of what has been discussed hereinabove, the appeal, so also pending application(s), if any, stands disposed of.
(Chander Bhusan Barowalia) Judge October 01, 2018 (raman) ::: Downloaded on - 03/10/2018 22:58:18 :::HCHP