Chattisgarh High Court
Tarasingh And Others vs Surat @ Guddu And Another on 3 August, 2011
HIGH COURT OF CHATTISGARH BILASPUR
SA No 370 of 2010
Tarasingh and others
...Petitioners
Versus
Surat @ Guddu and another
...Respondents
! Shri Santosh Kumar Tiwari counsel for the appellants
^ Shri Sanjeev Agrawal Panel Lawyer for the State respondent No 2
CORAM: Honble Shri Prashant Kumar Mishra J
Dated: 03/08/2011
: Judgement
O R D E R
This Second appeal under Section 100 of C.P.C. has been preferred by the defendant against whom both the Courts below have passed a decree of declaration and possession to the effect that plaintiff Surat @ Guddu is the adopted son of late Smt. Chhaya widow of Chhote Samaru and the said Surat is the title holder of suit land admeasuring 8.28 acres mentioned in Schedule `A' with the plaint and the sale-deed in favour of defendants No. 2 to 5 executed on 10/05/2001 is not binding on the plaintiff and the defendants are liable to deliver possession of the suit land to the plaintiff.
(2) Plaintiffs case, in short, was that late Chhote Samaru was serving as Jhankar (village servant) of village Jhinkipali and in lieu thereof he was granted Patta of 10.84 acres of land. In an earlier suit bearing Civil Suit No. 19-A/91 a decree was passed in favour of Chhaya widow of Samaru. The said Samaru and Chhaya were issueless and had adopted plaintiff from his childhood, however a deed of adoption was executed and registered on 22/04/1991. After death of Samaru defendant Tarasingh got recorded his name on the strength of a forged WILL and has sold 20 decimal of land in favour of one Daulat. In Civil Suit No. 19- A/91 Chhaya was declared owner of the suit land and the WILL deed dated 30/05/1969 in favour of Tarasingh as well as sale-deed in favour of Daulat were declared void.
(3) It was further pleaded that the defendant No.1 Tarasingh again made a proposal with ill intention that he may be allowed to cultivate the land on some terms and at the end of the lease period the land would revert to Chhaya. When Chhaya agreed to this proposal she was taken to Sarangarh and instead of executing a lease deed the said Tarasingh got executed four separate sale-deeds in favour of his four sons, the defendants No. 2 to 5. The sale-deeds were without any consideration and have been fraudulently executed. When Tarasingh got mutated his name Chhaya objected and the local Panchayat cancelled the mutation. The lands could not have been sold without permission of Collector as the lands were granted to Samaru as service land. Plaintiff claimed mesne profit of Rs.50,000/- for the period during which defendant No.1 was in possession.
(4) According to the defendants Tarasingh is the son of real brother of Chhaya and he was treated like son by Samaru and Chhaya and he was thus adopted by them, he was thus cultivating the land with the consent of Samaru. It was stated by the defendants that the judgment of Civil Suit No. 19-A/91 was in favour of Chhaya and not in favour of present plaintiff. (5) Both the Courts below have found that plaintiff is the adopted son of Chhote Samaru and Chhaya and the sale-deeds were got executed in favour of defendants No. 2 to 5 by committing fraud and without giving any consideration. It was also found that Chhaya, Samaru and the plaintiff were in possession of the suit land at the time of delivery of judgment in the earlier suit and further that the suit land could not have been sold without permission of the Collector as the same is service land granted to Samaru as a village servant. It was also found that the suit is within limitation and is properly valued.
(6) Learned counsel for the appellant has argued that both the Courts below have committed an illegality by placing reliance on statement of Chhaya (Ex.P/4) in Civil Suit No. 19-A/91 by taking recourse to Section 33 of the Evidence Act whereas the said provision is attracted when parties to the earlier suit and the present suit are same, which is not the position in the present matter. He would also submit that Section 165 (7)(b) of Chhattisgarh Land Revenue Code, 1959 (henceforth `the Code') would not be attracted in the present case for declaring the sale-deed illegal because the said Section does not have a retrospective effect and the provision having been inserted with effect from 1992, would not apply to a land which was granted by the State to a village servant in the year 1967.
(7) For considering the first argument with respect to the applicability of Section 33 of the Indian Evidence Act, 1872 the said provision needs to be referred, which is reproduced hereunder for ready reference :-
"33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided -
that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in the second proceeding".
(8) On a reading of the above quoted provision of Section 33 of Evidence Act it would be clear that earlier statement of a person is relevant for the purpose of proving, in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which was stated, when the witness is dead, provided that the proceeding was between the same parties or their representatives in interest and the adverse party in the first proceeding had the right of an opportunity to cross- examine and further that the question in issue were substantially the same in the first as well as in the second proceeding.
(9) In the case of Krishnayya Surya Rao Bahadur Garu and another vs. Venkata Kumara Mahipathi Surya Rao Bahadur Garu, Rajah of Pittapur reported in AIR 1933 Privy Council 202, Lord Russell has held thus :-
"It will be a question depending for its correct answer upon the circumstances of each case where the question arises, whether there was a party to the first proceeding who was a representative in interest of a party to the second proceeding within the wider meaning which their Lordships attribute to those words. Turning back to the first proviso, it requires, in their Lordships' view, that the party to the first proceeding should have represented in interest the party to the second proceeding in relation to the question in issue in the first proceeding to which "the facts which the evidence states" were relevant. It covers not only cases of privity in estate and succession of title, but also cases where both the following conditions exist, viz. (1) the interest of the relevant party to the second proceeding in the subject matter of the first proceeding is consistent with and not antagonistic to the interest therein of the relevant party to the first proceeding; and (2) the interest of both in the answer to be given the particular question in issue in the first proceeding is identical. There may be other cases covered by the first proviso; but if both the above conditions are fulfilled, the relevant party to the first proceeding in fact represented in the first proceeding the relevant party to the second proceeding in regard to his interest in relation to the particular question in issue in the first proceeding, and may grammatically and truthfully be de- cribed as a representative in interest of the party to the second proceeding.
What the section intends is to allow the admission of evidence given in a former proceeding, which it is, for the specified reasons, impossible to give in a later proceeding, subject to the protection which the provisos afford to the party to the later proceeding against whom the evidence is tendered. What the first proviso aims at securing is that the evidence shall not be admitted unless the person who tested, or had the opportunity of testing, the evidence by cross examination, either is himself, or represented the interests of, the party to the later proceeding against whom the evidence is tendered, i.e., that he was (in the latter case), in effect, fighting that person's battle as well as his own."
(10) Thus, even if the parties are not the same but they are representatives of the party to the first proceeding and are representing their estate and interest of the relevant party and the subject matter of the first proceeding is consistent with and not antagonistic to the interest therein of the relevant party to the first proceeding and the issues of both the proceeding are substantially the same, the provision would be applicable, which is exactly the position in the present case, as plaintiff is representing the interest and the estate of Chhaya who has given the statement in question in the first proceeding and the same property is involved in both the proceeding and the issues are also relevant to the title to the same property.
(11) The next argument of learned counsel was about applicability of Section 165 (7)(b) of the Code. The said provision does not confer any new right on any party. It only prescribes a procedure to be followed where any party who is holding the land from the State Government as a Government lessee or as a Bhoomiswami can transfer such land only after seeking permission from a revenue officer not below the rank of Collector. Thus, provision only prescribes a procedure and is not about any vested or substantial right, therefore, the provision is retrospective and the reliance placed by the Courts below on this provision to declare the sale-deeds illegal as the same have been executed in favour of defendants No. 2 to 5 in contravention of the said provision, is not illegal. (12) In the matter of Guruputrappa Mallappa Harkuni vs. Tahsildar and others reported in 1993 Supp (1) SCC 496, the Hon'ble Supreme Court, while dealing with a statutory provision concerning Karnataka Village Offices Abolition Act, 1961, has held that the prohibition contained in transfer/alienation with effect from 7th August, 1978, would apply even to a case in which permission was granted in August 1968 on the ground that when the actual alienation took place the prohibition was in force. In the present case also the lands were granted to Samaru as a village servant in 1967 and the provision requiring prior permission of the Collector before alienating the land was introduced in 1992 thus on the date of execution of sale-deeds in 2001, the requirement of obtaining permission from Collector was in force. Therefore, placing reliance on the above Supreme Court judgment, this Court does not find any substance in the argument raised by learned counsel for the appellant that permission of Collector was not required. (13) Learned counsel has also argued that in the earlier suit present plaintiff was a party and no decree was passed in his favour, therefore, the present suit is hit by principal of res judicata. (14) To consider this argument it is to be seen that Ex.P/1 is the judgment and decree passed in the earlier suit. In the said suit issue No.1 was with respect to Chhaya's title on the suit land and issue No.2 was whether the WILL dated 30th May 1969 allegedly executed by late Chhote Samaru in favour of defendant No.1 Tarasingh is illegal, void and inoperative. The suit was filed during the life time of Chhaya and the judgment was delivered on 20/11/1995. No issue was framed as to whether the present plaintiff is the owner of the suit land or not. Chhaya died on 23/08/2001 and the present suit was preferred on 02/01/2002. In the above set of facts the argument advanced by learned counsel has no legs to stand firstly because in the earlier suit no issue regarding ownership of present plaintiff was framed and secondly because any right in favour of present plaintiff would accrue only after the death of Chhaya and not before that. Since the present plaintiff is claiming to be the owner of the suit property on the strength of he being the adopted son of late Chhaya and the said issue has been found to be proved concurrently by both the Courts below, the present suit filed after the death of Chhaya is not barred under the principles of res judicata.
(15) In view of the above, no substantial question of law arises for determination in this appeal which fails and is hereby dismissed.
J U D G E