Madhya Pradesh High Court
Abdul Majeed Khan(Dead)Thr. Lrs.Rabia ... vs Saabir Shah on 5 April, 2018
-( 1 )- Second Appeal No.29/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
(Vivek Agarwal, J.)
Second Appeal No.29/2015
.....Appellants : Abdul Majeed Khan (Dead) Th. L.Rs.
Versus
.....Respondents : Sabir Shah & Ors.
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Shri V.K.Bhardwaj, learned senior counsel with Shri
S.K.Shrivastava, counsel for the appellants.
Shri Sarvesh Sharma, learned counsel for respondent No.1.
Shri Abhishek Mishra, learned Govt. Advocate for respondent
No.3/State.
Shri K.N.Gupta, learned senior counsel with Shri
R.S.Dhakad,learned counsel for respondent No.5.
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JUDGMENT
(5/ 4/2018) This second appeal has been filed under Section 100 CPC against the judgment and decree dated 3.12.2014 passed by the Additional Judge to the Additional District Judge, Sironj, Distt. Vidisha, in Civil Appeal No.65-A/2013 (Sabir Shah Vs. Abdul Majeed Khan and others) and Civil Appeal No.69-A/2013 (Laxminarayan & another Vs. Rabiya Bi and others) so also in Civil Appeal No.67-A/2013 (Rakesh Babu and two others Vs. Rabiya Bi and others) by which the judgment and decree dated 10.9.2013 passed by the Civil Judge, Class I, Sironj, Distt. Vidisha, in Civil Suit No.44-A/2011 (Abdul Majeed Khan Vs. Sabir Shah & Ors.) has been reversed and the suit filed by the plaintiff/appellants has been dismissed in toto.
2. The brief facts leading to the present second appeal are that original plaintiff Abdul Majeed had filed a civil suit for declaration, possession and permanent injunction against three
-( 2 )- Second Appeal No.29/2015 original defendants namely Sabir Shah, Munnalal and Harnam Singh so also against the State of M.P. It was the case of the plaintiff that father of defendant No.2 Bhamra was a Gardner by caste and after his death Munnalal is his only legal heir. Defendant No.3-Harnam Singh is a politically influential person. It was stated that land contained in survey No.2211 admeasuring 7 Beegha 19 Biswa at Kasba Sironj was in possession and ownership of the plaintiff and was having about 100 trees. A road was laid in this survey number as a result of which survey No.2211 was sub-divided into three parts. Out of these three parts, survey No.2211/1 was measuring 4 Beegha 19 Biswa. This was given new survey No.2038. Survey No.2211/2 was used for the purpose of construction of road and survey No.2211/3 measuring 1.5 Beegha was left. This was given new survey No.2035. It is the case of the plaintiff's that said survey Nos.2035 and 2038 were given to Bhamra for maintenance of trees around 40 years prior to filing of suit on a oral understanding so to share the profits of such fruits of trees in equal proportion with the plaintiff.
3. As per the plaintiff, one Sabir Shah- defendant No.1 got his name mutated over the land after it was mutated in the name of Bhamra and even defendant No.3 having political influence claimed interest over the land. It is submitted that due to collusion between defendant No.1 and defendant No.3 land of the plaintiff was snatched but mutation in favour of defendants did not create any right in their favour and when plaintiff came to know of this fact in January, 2001 that name of Sabir Shah has been entered in the revenue records, he had sent a notice. Thereafter, it was further brought to his knowledge that one civil suit No.110-A/79 (Sabir Shah Vs. Bhanwarlal) was filed which was decreed on 29.10.1979 though plaintiff was not made a party so also not noticed, and therefore, plaintiff claimed that judgment and decree passed in civil suit No.110-A/79 was not binding on him and mutation carried out in relation to survey Nos.2038 and 2035
-( 3 )- Second Appeal No.29/2015 deserves to be set aside.
4. It has come on record that plaintiff had voluntarily given up his claim in regard to the land contained in survey No.2038, therefore, suit was decided on the basis of oral and documentary evidence in regard to survey No.2035. When converted into hectares, area of survey No.2038 comes out to 1.252 hectares and that of survey No.2035 was 0.379 hectares. Since appellants have fairly admitted that they are confining their claim only to survey No.2035 and there is no challenge to the land contained in survey No.2038 in regard to which plaintiff had already given up his claim in terms of the findings recorded in civil suit No.110-A/79 decided on 29.10.79, this Court would like to confine its findings only in relation to the land contained in survey No.2035.
5. Learned counsel for the appellants submits that defendant No.1- Sabir Shah had filed an application under Order 41 Rule 27 CPC before the first appellate Court bringing on record order dated 31.10.1987 passed by the Court of Tahsildar, Sironj, in case No.32/A-6/84-85 (Sabir Shah Vs. Raddobai and others) on record when he was going through his old record on 10.11.14 and though he had knowledge of this case but due to non-availability of certified copy of the order, he could not produce such order of Tahsildar on record and since the order was passed about 25 years ago and copies of the orders of the proceedings of the revenue Court are not available after 12 years, it being a public document no doubt can be created about such document, and therefore, he requested to take on record such order dated 31.10.1987 and the said application was wrongly allowed and document was taken on record and on the basis of such document which was already in the knowledge of defendant No.1, who was appellant before the first appellate Court, appeal was accepted and decree passed by the trial Court has been reversed which is arbitrary and illegal.
6. It is the contention of the appellants/plaintiff that appropriate legal questions were not framed by the first appellate Court and
-( 4 )- Second Appeal No.29/2015 the first appellate Court erred in recording a finding that defendant No.1 had become Bhumiswami of the land contained in survey No.2035 in the year 1989 and this fact was known to the plaintiff vide judgment and decree dated 31.10.1987. It is submitted that learned lower appellate Court committed an error of law in interfering with the well reasoned judgment and decree passed by the learned trial Court on extraneous grounds misconstruing the evidence; oral and documentary, available on record. It is submitted that learned lower appellate Court had failed to give right of rebuttal to the appellants while allowing application under Order 41 Rule 27 CPC filed in civil appeal No.65-A/13 inasmuch as such application was filed on 11.11.14, one day prior to the date on which case was fixed for final arguments vide order-sheet dated 29.10.14, whereas the judgment and decree was passed in the first appeal on 3.12.14. It is also submitted that this denial of right to rebuttal is against the settled principles of law as held by Hon'ble Apex Court in the case of The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H.Narayanaiah etc. as reported in AIR 1976 SC 2403 para 28. It is also submitted that the learned first appellate Court after allowing application under Order 41 Rule 27 of CPC failed to adopt the procedure as contemplated under Order 41 Rule 28 and Rule 29 of CPC. It is also submitted that the judgments, orders and decrees which were filed by the respondents/defendants before the trial Court, in all those orders, judgments and decrees admittedly plaintiff was not a party, therefore, same was not binding on the appellants as per the provisions contained in Section 35 of the Specific Relief Act, 1963. It is also submitted that the first appellate Court committed grave illegality in para 35 in holding that defendant was having possession over suit land since the date of commencement of M.P. Land Revenue Code i.e. 2.10.1959. It is submitted that this finding is contrary to Ex.D/2 wherein name of the predecessors of the plaintiff is shown as Bhumiswami. It is submitted that there
-( 5 )- Second Appeal No.29/2015 was only a note by the Patwari that Bhawarlal is having possession for last 12 years but his name has not been mentioned as sub-tenant in the relevant column and such remark made by the Patwari has no evidentiary value, therefore, findings recorded by the first appellate Court are perverse.
7. In view of the aforesaid facts, following substantial questions of law have been proposed by the appellants :-
"(i) Whether the learned lower appellate court committed an error of law in overlooking the documentary evidence in true perspective and so also overlooking the admissions in Para 35 & 36 of defendant No.2 ?
(ii) Whether the learned lower appellate court erred in not giving right of rebuttal to the appellants while allowing application under Order 41 Rujle 27 of CPC filed in civil appeal No.65A/2013 ?
(iii) Whether the learned lower appellate court has committed substantial error of law in not following the procedure contemplated in Order 41 Rule 28 and 29 of CPC while allowing appllication under Order 41 Rule 27 of CPC?
(iv) Whether the order dated 31.10.1987 filed alongwith application under Order 41 Rule 27 of CPC could have been made basis of coming to conclusion that the suit is time barred when as a matter of fact the said order relates to Survey No.2038 whereas the present matter is confined to survey No.2035 and so also in view of the fact that the court of Tehsildar is not a court even and it cannot be elevated to the status of a court as held in the case of Bajrangi (Mahila) & others Vs. Badribai & another reported in 2003 RN 162 Para 6 ?
(v) Whether the learned lower appellate court failed to consider that pleadings are not to be so meticulously read so that genuine claims are rejected and the courts just cannnot act as an umpire as held in the case of Sharda Singhania (Smt.) & others Vs. Bharat Petroleum Corporation Limited reported in ILR (2012) MP 2780 Para 9 and so also in the case of Kishore Samrite Vs. State of Uttar Pradesh & Others reported in (2013) 2 SCC 398 Para 35 ?
(vi) Whether the learned lower appellate court failed to consider that mere possession on 02.10.1959 does not give status of occupancy
-( 6 )- Second Appeal No.29/2015 tenant/bhumiswami and infact status is also to be seen as held in the case of Kaushalya Bai Vs. Amar Singh reported in 1999 RN 147 Para 8 ?
(vii) Whether the learned lower appellate court was justified in getting influenced with Ex.D-2 wherein possession of Anwar Ali is recorded for a period of 12 years whereas such an entry cannot be made as held in the case of Bachoo Vs. Imratlal & another reported in 1991 RN 256 para 13 and again in the case of Sadhu alias Sadhu Vs. Tulsiram & another reported in 1992 RN 149 Para 8 and hence cannot be read ?
(viii) Whether learned lower appellate court committed substantial error of law in holding that Ex.D-2 revenue entry gives right to defendant becuase a remark has been made by Patwari regarding possession for last 12 years of defendant without examining the Patwari ?
(ix) Whether the learned lower appellate court was justified in making out a new case in favour of defendants without any pleading as regards source of title in the written statement ?
(x) Whether the learned lower appellate court failed to consider Ex.D-1, D-2 & P-7 wherein name of Abdul Majeed is recorded as Bhumiswami then how come name of Bhamra S/o Shri Kaluram got recorded in khasra of year 1971-72 i.e. Ex.P-6 was to be discharged by defendants ?
(xi) Whether the learned lower appellate court was justified in coming to conclusion that the suit is time barred whereas it is a trite law that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendants proves adverse possession for the prescriptive period, the plaintiff cannot be non-
suited ?"
8. Learned counsel for the appellants has placed reliance on the judgment of the Supreme Court in the case of Union of India Vs. Ibrahimuddin and another as reported in (2012) 8 SCC 148 wherein the ratio is that if party producing additional evidence in appellate Court is found guilty of remissness in not producing evidence in trial Court, then such evidence cannot be allowed to produce in appellate Court. There must be satisfactory reasons
-( 7 )- Second Appeal No.29/2015 for non-production of evidence in trial Court for seeking production thereof in appellate Court. It is also held that recording of reasons by appellate Court for allowing production of additional evidence is directory and omission of recording reasons is to be treated as a serious defect.
9. Reliance has also been placed on the judgment of the Supreme Court in the case of H.P.Vedavyasachar Vs. Shivashankara and Another as reported in (2009) 8 SCC 231 wherein Hon'ble Supreme Court has held that appellate Court by allowing an application under Order 41 Rule 28, 27 has two options open to it; one being of recording the evidence itself or directing the trial Court to do so. The High Court cannot direct trial Court to dispose of the suit after taking evidence. It has been held that order of remand could be made only in terms of the provisions contained in Order 41 Rule 23, 23-A and 25. Reliance has also been placed on the judgment of the Supreme Court in the case of The Land Acquisition Officer, City Improvement Trust Board, Bangalore (supra) wherein the ratio is that when the issue in appeal to High Court in a land acquisition case was relating to market value of particular pieces of land and High Court admitted such evidence without recording reasons why it found the admission of such evidence to be necessary nor gave any opportunity to party affected to rebut any inference arising from its existence by leading other evidence, therefore, judgment and order of High Court was set aside by the Supreme Court and case was remanded for decision afresh.
10. Learned counsel for the appellants has placed reliance on the judgment of this Court in the case of General Mines and Quarries Ltd. v. Shri Kartar Singh and Others as reported in 1992 RN 181 wherein meaning of old possession of servant remaining in continued possession after termination of employment has been discussed and it has been held that possession would be permissive in the capacity of ex-servant and such possession cannot be held adverse to the true owner.
-( 8 )- Second Appeal No.29/2015 Similarly, reliance has been placed on the judgment of this High Court in the case of Sadhu @ Sadha vs. Tulsiram and another as reported in 1992 RN 149 wherein in para 11 this Court was pleased to hold that when there was an effort on part of defendant/appellant though not in possession to take forcible possession and SDM in proceedings under Section 145 of Cr.P.C. found and declared the plaintiff/respondent's possession over the suit property, in such circumstances, a single entry in the revenue papers should not have been held enough by the Courts below as raising such presumption of correctness as would confer status of sub-tenant on the defendant/appellant. Learned counsel has also placed reliance on the judgment of this High Court in the case of Smt. Shakuntalabai vs. Chatur Singh and others as reported in 2013(1) M.P.H.T. 198 wherein the ratio is that when more than one Forums are available to a litigant, then the plaintiff is dominus litis, that is, master of, or having dominion over the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction, the choice ought to lie with the plaintiff to choose the Forum best suited to him unless there be a rule of law excluding access to a Forum of the plaintiff's choice or permitting recourse to a Forum will be opposed to public policy or will be an abuse of the process of law.
11. Learned counsel for respondent No.5 on the other hand submits that Article 58 of the Limitation Act will be applicable and the suit was clearly barred by limitation. He has placed reliance on the provisions of Sections 185 and 169 of the MPLRC and submits that revenue entry of 1971-72 was not challenged in the civil suit, and therefore, now plaintiff/appellants are not entitled to challenge the same, and therefore, the findings recorded by the first appellate Court have become conclusive. Learned counsel submits that Section 185(1)(ii) deals with occupancy tenants in the Madhya Bharat region and it provides that an occupancy tenants shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this
-( 9 )- Second Appeal No.29/2015 Code. It is submitted that in case of Ramdayal vs. Madhavrao as reported in 1998 RN 378 it has been held that in spite of tenancy coming to an end by efflux of time since the tenant was holding over, he acquired the occupancy right and ultimately became Bhumiswami. Reliance has also been placed on the provisions contained in Section 169 of the MPLRC which provides that if a Bhumiswami leases out for any period any land comprised in his holding in contravention of Section 168; or by an arrangement which is not a lease under sub-section (1) of Section 168 allows any person to cultivate any land comprised in his holding otherwise than as his hired labour and under that arrangement such person is allowed to be in possession of such land for a period exceeding two years without being evicted in accordance with Section 250; the rights of an occupancy tenant shall in the case of (i) above, thereupon accrue to the lessee in such land; and in the case of (ii) above, on the expiration of a period of two years from the date of possession, accrue to such person in that land. Thus, it is submitted that defendant had perfected occupancy rights, and therefore, had become Bhumiswami. It is also submitted that law is crystal clear on the issue of starting point of limitation as has been laid down by Hon'ble Supreme Court in the case of Khatri Hotels Pvt. Ltd. and Anr. v. Union of India & Anr. as reported in AIR 2011 SC 3590 wherein it has been held that if suit is based on multiple cause of action, then as per Article 58 of the Limitation Act, limitation starts from the date cause of action first arises, and therefore, learned counsel submits that the first appellate Court has rightly turned down the judgment and decree passed by the trial Court.
12. The first issue which is to be dealt with under the facts and circumstances is that whether the first appellate Court was justified in accepting an application under Order 41 Rule 27 CPC as was filed by defendant No.1, who was appellant before the first appellate Court, and whether there was any violation of the provisions of Rule 28 of Order 41 of CPC.
-( 10 )- Second Appeal No.29/2015
13. The judgment of the first appellate Court reveals that application under Order 41 Rule 27 CPC was filed on 11.11.14. The proceeding before the first appellate Court demonstrate that on 11.11.14 when this application was filed, its copy was handed over to the counsel for the opposite party and case was fixed on 12.11.14 to file reply to such application. On 12.11.14 respondents No.1 to 6 filed their reply to such application and case was fixed for arguments on such application and final arguments on 18.11.14. On 18.11.14 since the Presiding Officer was on leave case was fixed for 19.11.14 when it was fixed for final arguments on 22.11.14. On 22.11.14 time was sought to advance arguments, therefore, case was fixed for 27.11.14 when arguments were heard and case was fixed for judgment on 3.12.14. On 3.12.14 judgment was passed and it was noted in the order-sheet that appeal has been accepted.
14. A perusal of the reply filed by respondents No.1 to 6 on 12.11.14 i.e. legal heirs of plaintiff Abdul Majeed, reveals that an objection was taken that order of mutation which has been produced before the first appellate Court was in relation to survey No.2038 situated at Town Sironj and in regard to which civil suit No.100-A/79 was filed in which defendant Sabir Shah was a party but plaintiff Abdul Majeed was not a party and in view of judgment and decree dated 29.10.79 passed in civil suit No.100-A/79 Tahsil Court had passed order dated 31.10.1987. It was submitted that judgment and decree passed in civil suit No.100-A/79 does not survive and further the said judgment and decree was not in relation to the suit land and since plaintiff Abdul Majeed was not a party to such judgment and decree, therefore, such judgment and decree is not helpful in decision of the present appeal. It was also denied that this document was discovered on 10.11.14 and the fact of non-availability of revenue records after 12 years was also denied. Prayer was made to dismiss the application under Order 41 Rule 27 CPC.
15. It is important to note that there was no prayer on the part
-( 11 )- Second Appeal No.29/2015 of the present appellants to file any document in rebuttal or to deny the mutation proceedings having been challenged or set aside by any superior revenue Court or Court of competent jurisdiction. In this backdrop, when the provisions of Order 41 Rule 28 are examined, they deal with only mode of taking additional evidence and provides that wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court. But saying that there was violation of any of the rights of the appellants will not be correct inasmuch as the ratio of judgment of the Supreme Court relied on by the appellants in the case of Ibrahimuddin and another (supra) is that appellate Court should exercise its discretion in exceptional circumstances judicially and with circumspection and only where any of the prerequisite conditions provided under Rule 27 exist. It has also been held that such application should be considered at the time of final hearing on merits. It has also been held that if additional evidence is found to have important bearing on main issue or found to be necessary to remove any lacuna in evidence and for clearing any doubt for pronouncing judgment and required in interest of justice, it may be allowed. Therefore, when the plea of due diligence has not been sufficiently denied and even the document sought to be produced on record was not denied but was rebutted to be not relevant and also looking to the law laid down by Hon'ble Supreme Court in the case of H.P.Vedavyasachar (supra) this Court is of the opinion that since there is no order of remand and there was no prayer of the plaintiff to produce any additional evidence in rebuttal, the first appellate Court did not commit any illegality in not remanding the matter inasmuch as the document produced was to be used for collateral purposes and to clarify the issue and there was no prayer for any rebuttal on behalf of the plaintiff. Thus, this Court is
-( 12 )- Second Appeal No.29/2015 of the opinion that there is no violation of the provisions of Order 41 Rule 27 or Order 41 Rule 28 of CPC inasmuch as plaintiff never sought any opportunity to rebut such document. In fact, cogent reasons have been recorded for admitting such evidence, and therefore, even the law laid down in the case of The Land Acquisition Officer, City Improvement Trust Board, Bangalore (supra) has no application under the facts and circumstances of the present case.
16. Another issue which is to be now dealt with is what will be the impact of revenue entries and the mutation order passed in relation to survey No.2038 based on such revenue entries. As far as Ex.D/2 is concerned, admittedly it reveals that name of Abdul Majeed son of Anwar Ali is recorded in column No.6 as Krishak but name of Bhamra is also mentioned as the possessor, farmer of the said land since 1959-60. This entry reveals that Bhamra was in possession, and therefore, in terms of the provisions contained in Section 185 of the Land Revenue Code Bhamra had perfected his rights as an occupancy tenant. Thus, in terms of the provisions contained in Section 169 of the MPLRC, he had perfected the right as Bhumiswami against plaintiff Abdul Majeed. Further it has come on record that Abdul Majeed had raised objection in regard to both the survey numbers i.e. 2035 and 2038 and even the suit was filed in relation to both the survey numbers 2038 and 2035 as is apparent from the pleadings in para 4 and 5 of the plaint and initially relief was sought in relation to both the survey Nos.2038 and 2035 as is apparent from para 24-A of the suit, therefore, first appellate Court relying on the order of mutation dated 31.10.1987 came to a conclusion that in fact Abdul Majeed had objected to such mutation proceedings and had therefore knowledge in regard to recording of name of Bhamra son of Kaluram as Bhumiswami and had not taken proper steps to file the civil suit within the prescribed period of limitation inasmuch as suit was filed on 27.2.2001 whereas plaintiff had knowledge about such entries at least on 31.10.1987
-( 13 )- Second Appeal No.29/2015 when mutation order was passed and thus held the suit filed by Abdul Majeed to be barred by the provisions of limitation.
17. Learned first appellate Court has adverted to the fact that plaintiff Abdul Majeed (PW-1) admitted that in the year 1971-72 when settlement had taken place he had obtained copy of records of land situated at village Kajri Barkheda. He had not made any efforts to produce any evidence to support his contention that Bhamarlal and thereafter Munnalal were employed as labourer by furnishing any record of accounts, on the contrary he admitted that the land in question and the trees were looked after by Bhawarlal on an understanding of sharing of fruits in the ratio of 50-50. In view of such facts when plaintiff Abdul Majeed had gathered information about the mutation proceedings in relation to survey No.2038 on 31.10.1987 or prior to that, then story of cause of action arising in his favour on 22.1.2001 has been rightly dealt to be imaginary story floated by the plaintiff. Learned first appellate Court has rightly held that when it was known to the plaintiff that vide order dated 31.10.1987 his Bhumiswami rights were terminated and that of Bhamra were accepted and entries were made in the revenue record, to which he had raised an objection, not giving challenge to such proceedings for a long period of about 13 years, reveals that suit was not within the period of limitation. In fact the law laid down in the case General Mines and Quarries Ltd. (supra) is not applicable to the facts and circumstances of the case inasmuch as plaintiff failed to prove that Bhamra was his employee and there was any termination of employment after which his or his successors possession continued, on the other hand, plaintiff himself admitted that after death of Bhamra, Munnalal through his guardian Raddobai was looking after the land and was furnishing some amounts from time to time. Thus, plaintiff has failed to discharge the onus that defendant Bhamra or his successors were his employees.
18. Ratio in the case of Sadhu @ Sadha (supra) is also not
-( 14 )- Second Appeal No.29/2015 applicable to the facts of the case inasmuch as it is not a case of single entry in the revenue papers but the fact is that the entry in the revenue papers is followed by mutation order in favour of the defendant to which objection was raised by the plaintiff but was not challenged and in regard to which part claim has been given up by the plaintiff. Further in the case of Sadhu @ Sadha (supra) there was a finding of the SDM in regard to possession over the suit property, whereas plaintiff in the present case failed to adduce any evidence to show his possession over the suit property, therefore, law laid down in the case of Sadhu @ Sadha (supra) is also distinguishable.
19. In view of such facts, this Court is of the opinion that first appellate Court has rightly considered the legal position and has rightly held that suit as was filed by the plaintiff, whose legal heirs are appellants before this Court, was barred by limitation, a fact which is supported by not only revenue entry like Ex.D/2, but also by mutation order which has not been rebutted by the plaintiff to be fabricated, concocted or as a overruled document. Thus, finding of the first appellate Court does not call for any interference so to frame any substantial question of law necessitating admission of this appeal. Thus, appeal fails and is dismissed.
(Vivek Agarwal) Judge ms/-
Digitally signed by MADHU SOODAN PRASAD Date: 2018.04.06 16:54:02 +05'30'