Himachal Pradesh High Court
Mohinder Singh And Ors vs Gurmeet Singh And Ors on 10 October, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 283/2004 Reserved on: 8 October, 2018 th Date of decision: 10 October, 2018 th .
Mohinder Singh and ors. ...Appellants Versus Gurmeet Singh and ors. ....Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the appellants: Mr. Ajay Sharma, Advocate.
For the respondents: Mr. T.S. Chauhan, Advocate.
Tarlok Singh Chauhan, Judge The appellants are the defendants, who after having lost before both the learned courts below, have filed the instant appeal.
2 The parties shall be referred to as the "plaintiffs"
and "defendants".
3 Briefly stated the facts leading to filing of the present appeal are that the plaintiffs filed a suit for permanent injunction restraining the defendants from 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 11/10/2018 22:57:56 :::HCHP 2 interfering in any manner in the land measuring 22 Kanals 5 Marlas, bearing Khewat No.57 min, Khatauni No.99, Khasra .
Nos. 13/12/2, 13/1, 12/1, 12/3, 18/3, 19 as entered in jamabandi for the year 198788, situated in Village Nangal Kalan, Sub Tehsil Haroli, District Una, H.P. and in the alternative suit for possession. It was averred that Wattan Singh, son of Rulia, father of the plaintiffs, had been in cultivating possession of the suit land as tenantatwill (doem) on payment of rent since long and as such, had become owner by virtue of provisions of H.P. Tenancy and Land Reforms Act and the Rules framed thereunder. During consolidation operation, the suit land stood alloted to Wattan Singh in lieu of land comprised in Khasra Nos. 1151 and 1158. The father of the plaintiffs never abandoned the tenancy over the suit land nor was he ejected therefrom by the owners/landlords at any time and as such had become owner of the suit land on the appointed day i.e. 3.10.1975.
Wattan Singh died on 21.8.1991 and his tenancy rights were thereafter inherited by the plaintiffs and their brother Arjun Singh, and were in possession thereof on payment of rent to the owners. The defendants were total strangers having no ::: Downloaded on - 11/10/2018 22:57:56 :::HCHP 3 right,title or interest over the suit land and still threatening to interfere in the suit land.
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4 The defendants contested the suit by filing written statement taking therein preliminary objection regarding suit being time barred. On merits, it was averred that the plaintiffs were never inducted as tenants over the suit land nor plaintiffs ever came in possession thereof, whereas the defendants had been coming in possession of the suit land as tenantsatwill on payment of rent since long. They never relinquished the possession nor were evicted from the suit land. The change of entry in favour of the father of the plaintiffs is without any notice or basis and the same was not binding on the rights of the defendants. The defendants admitted the allegations regarding consolidation, but averred that they had been in possession of the suit land.
5 On the pleadings of the parties, the learned trial court on 14.5.1996 framed the following issues:
1. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for ? OPP
2. Whether the suit is barred under Section 12 CPC? OPD
3. Whether defendants are tenant at will of the suit land? OPD ::: Downloaded on - 11/10/2018 22:57:56 :::HCHP 4
4. Whether the entries in the name of the plaintiff as tenant at will are wrong and incorrect? OPD
5. Relief.
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6 After recording the evidence and evaluating the same, the learned trial court vide judgment and decree dated 13.8.2001 decreed the suit and the appeal filed against the said judgment and decree came to be dismissed by the 7 r to learned first appellate court vide judgment and decree dated 12.5.2004 leading to the filing of the present appeal.
On 18.3.2005, the instant appeal came to be admitted, however no substantial questions of law were framed and it was eventually on 2.5.2018 that the following substantial questions of law came to be formulated:
1. Whether suit as filed by the plaintiffs is hit by the provisions of Order 23 Rule 1(4) of the C.P.C. and this aspect having been overlooked by both the courts below, impugned judgments and decrees as passed stand vitiated?
2. Whether the suit for injunction filed by plaintiffs was incompetent and not maintainable in view of document, Ext. D3 but this aspect again having been overlooked by both the courts below impugned judgments and decrees stand vitiated?
3. Whether the plaintiffs having utterly failed to bring in evidence qua they having been inducted as non occupancy tenant Deom, and both the courts below ::: Downloaded on - 11/10/2018 22:57:56 :::HCHP 5 having overlooked this aspect of the matter while passing the impugned judgments and decrees vitiated the said judgments and decrees?
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8 I have heard the learned counsel for the parties and have also gone through the material placed on record carefully.
Substantial Question of Law No.1 9 Order 23 Rule 1(4) CPC reads thus:
1. Withdrawal of suit or abandonment of part or claim (4) where the Court is satisfied
(a) that a suit must fail by reason of some formal defect,or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subjectmatter of such suit or such part of the claim.
10 SubRule 4 of Rule 1 expressly states that where the plaintiff abandons a suit or part of claim or withdraws from a suit or part of claim without the leave of the Court, to file fresh suit, he cannot institute a fresh suit in respect of ::: Downloaded on - 11/10/2018 22:57:56 :::HCHP 6 same subject matter, however, this is not the fact situation in appearing the present case as the earlier suit filed was .
withdrawn with leave of the Court to file a fresh suit.
11 It would be noticed that even though the plaintiffs had earlier filed a suit, however, same was withdrawn after obtaining specific permission from the Court to file another suit relating to the same property on the same cause of action and, therefore, I really fail to understand how the provisions of Order 23 Rule 1(4) CPC would apply to the instant case. Accordingly, this substantial question of law is answered against the defendants.
Substantial Question of Law No.2 12 In order to answer this question, it would be first relevant to refer to document, Ext. D3, which is the decision of the Sub Divisional Magistrate, Sub Division Una, dated 31.3.1987, in the proceedings under Section 145 Cr.P.C.
13 It is more than settled the enquiry contemplated under Section 145 Cr.P.C. is of summary nature intended to maintain peace till the respective claim(s) is adjudged by the competent civil court and action under this Section is only preventive and not punitive and, therefore, the decision on ::: Downloaded on - 11/10/2018 22:57:56 :::HCHP 7 such application cannot form the basis of establishing a right.
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14 The findings arrived at in proceedings under Section 145 Cr.P.C. are not binding and cannot be treated as evidence of possession in a civil suit. The civil court is to arrive at its own independent findings on the basis of material on record both oral and documentary.
15Here, it shall be apposite to refer to the judgment of the Hon'ble Supreme Court in Shanti Kumar Panda vs. Shakuntla Devi, (2004) 1 SCC 438, wherein it is categorically held that the decision of the criminal court does not bind the civil court while the decision of the civil court binds the criminal court. The relevant observations read thus: It is wellsettled that a decision by a Criminal Court does not bind the Civil Court while a decision by the Civil Court binds the Criminal Court (See Sarkar on Evidence, Fifteenth Edition, page 845). A decision given under Section 145 of the Code has relevance and is admissible in evidence to show : (i) that there was a dispute relating to a particular property; (ii) that the dispute was between the particular parties;
(iii) that such dispute led to the passing of a preliminary order under Section 145(1) or an attachment under Section 146(1), on the given date, ::: Downloaded on - 11/10/2018 22:57:56 :::HCHP 8 and (iv) that the Magistrate found one of the parties to be in possession or fictional possession of the disputed property on the date of the preliminary .
order. The reasoning recorded by the Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before the competent court and the competent court is not bound by the findings arrived at by the Magistrate even on the question of possession through, as between the parties, the order of the Magistrate would be evidence of possession. The finding recorded by the Magistrate does not bind the Court. The competent court has jurisdiction and would be justified in arriving at a finding inconsistent with the one arrived at by the Executive Magistrate even on the question of possession. Sections 145 and 146 only provide for the order of the Executive Magistrate made under any of the two provisions being superseded by and giving way to the order or decree of a competent court. The effect of the Magistrate's order is that burden is thrown on the unsuccessful party to prove its possession or entitlement to possession before the competent court.
16 Similar reiteration of law can be found in the subsequent judgments of the Hon'ble Supreme Court in Surinder Pal Kaur and another vs. Sat Pal and another, 2015 (13) SCC 25 and K. Nanjappa (D) By Lrs vs R.A. Hameed @ Ameersab (D)By Lrs., 2016(1) SCC 762. (See ::: Downloaded on - 11/10/2018 22:57:56 :::HCHP 9 also: Seth Ramdayal Jat vs Laxmi Prasad, (2009) 11 SCC 545.
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17 Adverting to the facts, the learned courts below are absolutely correct in not placing reliance on document, Ext. D3 insofar as for determining the respective rights and title of the parties is concerned. Accordingly, this substantial question of law is also answered against the defendants.
Substantial Question of law No.3 18 The plaintiffs in order to prove that they had been inducted as nonoccupancy tenants (Doem) examined plaintiff No.1 Gurmeet Singh as PW1, who deposed that his father was in possession of the suit land as tenant and died in the year 1991 and after his death, the plaintiffs had been coming in possession. He further stated that the defendants had no concern with the suit land. The plaintiffs also produced on record jamabandies w.e.f. 195859 upto 1977 78,which have been duly exhibited on record as Ext.P1, Ext.P2, Ext.P6, Ext.P7, Ext.P8 and Ext.P9, wherein Wattan Singh, son of Rulia (father of the plaintiffs) has been shown to be in possession of the suit land as Gair Marusi Doem.
::: Downloaded on - 11/10/2018 22:57:56 :::HCHP 1019 On the other hand, defendant No.1 Mohinder Singh appeared in the witness box and deposed that the .
defendants had been coming in possession of the suit land for the last 4045 years and the plaintiffs had never remained in possession of the suit land. However, in support of such averments, he could only produce a solitary jamabandi for the year 195354, Ext.D4, wherein the suit land was shown to be in possession of Kartar Singh, son of Ghasita Singh (father of the defendants) as Gair Marusi Doem.
20 In view of the long standing entries in favour of the plaintiffs from 195859 till date, single stray entry in favour of the predecessorsininterest of the defendants has to be discarded and kept out of consideration. The long course of entries which are consistently in favour of the plaintiffs cannot be ignored in preference to the stray entry that exists in favour of the defendants.
21 In addition to above, it would be noticed that not only the entry is stray or sporadic, but such entry is otherwise gone unexplained as the defendants have failed to show as to how the name of their predecessor in interest came to be recorded in the revenue record.
::: Downloaded on - 11/10/2018 22:57:56 :::HCHP 1122 It is more than settled that there is presumption of truth attached to the revenue records and convincing .
evidence is necessary to be produced to negative the presumption attached to such entries.
23 Having failed to do so, the defendants can take no exception to the findings recorded by the learned courts below, which otherwise are pure findings of fact.
against the defendants.
r to This question of law is accordingly answered 24 Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
10 October, 2018
th
(Tarlok Singh Chauhan)
(pankaj) Judge
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