Punjab-Haryana High Court
Harichand And Ors. vs Bachan Kaur And Ors. on 26 October, 1970
Equivalent citations: AIR 1971 PUNJAB AND HARYANA 355
JUDGMENT
1. There seems to be no end to this litigation. The relevant facts giving rise to this are stated in the judgment of Shamsher Bahadur, J., which was reversed by the Letters Patent Bench. I am reproducing the judgment of Shamsher Bahadur, J. only with regard to the facts in order not to cover the ground all over again:-
"The plaintiff Bacon Kauai brought a suit for an injunction restraining the thirty-four defendants from interfering with her ownership and possession of the disputed land measuring 5 bighas in khasra nos. 344 and 346 situated in Chamar Majri in Mauza Lehal which is contiguous to the town of Patiala. Tthe plaintiff seeks to derive her right in the disputed land as an owner through her husband Mehar Singh who purchased it from the biswadars of the village and subsequently made a gift of it in favour of his wife. Khasra no 572/344 measuring I bighas and 10 biswas was purchased by Mehar Singh on 15th of November, 1940 from one Chanan Singh out of shamilat deh. Another parcel of land of the same area under Khasra No. 571/344 was purchased again for the shamilat land on 19th of November, 1940 from Tara Singh, another biswedar of the village. Two more purchases were made of 2 bighas from Cahnan Singh on 23rd of December, 1940. The present suit was brought by the plaintiff on 6th of January, 1958 against the thirty-four defendants who are all chamars of the village and admittedly reside in khasra No. 345 which is hedged between Khasra Nos. 344 and 347, for an injunction that they should be restrained from interfering with her possession. It appears that the chamras including the "defendants residing in the locality had been resisting the efforts of the plaintiff and her husband to obtain possession of the land in suit. The dispute culminated in criminal proceedings which were initiated in the Court of the Executive Magistrate, Patiala, under Section 145 of the Code of Criminal Procedure by Jasbir Singh and Harbans Singh sons of Mehar Singh. The trial Magistrate came to the conclusion that the petitioners had not proved themselves to be in possession of he land in suit which was recorded as shamilat deh. A revision petition was preferred before the District Magistrate, Patiala, who by his order of 17th of September, 1956 (Exhibit P. W. 11/N) affirmed the decision of the trial Magistrate and directed the parties to get their claims settled in a Civil Court. According to the District Magistrate the land in suit recorded as shamilat deh had not been established to be in exclusive and physical possession of either party. The defendants denied the ownership or possession of the plaintiffs in the suit land and various other objections were raised which it is not necessary for purposes of this appeal to set out. The Trial Judge on a consideration of the evidence came to the conclusion that the plaintiff had proved her title tot he suit land as also her possession except the portion marked "EFGH" in khasra No. 346 covered by two kothas. A decree was accordingly made in favour of the plaintiff. The defendants' appeal having failed before the learned Additional District Judge, Patiala, they have now come to this Court in second appeal.
When the appeal came up for hearing, I considered it necessary to retrieve additional evidence under O. 41, R. 27 of the Code of Civil Procedure and the case was sent to the lower appellate Court for this purposes. The trial Court had rejected the evidence of the revenue records in which the defendants had been shown in possession over a stretch of many years and their prayer for additional evidence was not acceded to before the lower appellate Court. The earliest entry n record is Exhibit D. G. of 3-12-1965 Bk, corresponding to the year 1912 A. D., in which it is stated that he chamars had been rehabilitated in khasra Nos. 344 and 346 had been given to these chamars for purposes of their vocation. According to Exhibit D. G., which purports to be an order in appeal the chamars had bee in possession of khasra Nos. 343, 344 and 346 for a period of twelve years. According to this order it was directed that a mutation should be made to this effect. In pursuance of this order a mutation was made in favour of the chamars on 26-4-1966 B.K. (Exhibit D-F). Thereafter, the revenue entries right from the year 1966-67 Bk to 1990-91 Bk disclose that land in these khasra numbers was in possession of the chamars. These entries are Exhibits A. 1 to A. 7 which had not been accepted by the trial Court and which I directed the Lower Appellate Court to receive in evidence. It appears, however, that adequate proof of these entries has not been adduced before the lower appellate Court. The jamabandis which purport to be copies of the originals have not been certified to be true under the provisions of Section 76 of the Indian Evidence Act, according to which:-
"Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies."
These Jamabandis were tendered in evidence by the Advocate for the defendants who made a statement that he would not examine the Patwari whom he had summoned to make a comparison of the copies with the original. The counsel contented himself by saying that he had himself compared the copies with the originals and had found them to be correct. It appears that the Patwari was given up as the defendants did not want him to be cross-examined by the plaintiff. It seems that no objection head been taken to the production of the copies of the jamabandis by the counsel himself but it is contended by Mr. Atma Ram, the learned counsel for the respondent, that this by itself could not relieve the defendants from the necessity of adducing adequate proof. Mr. Kaushal has argued on the basis of the Privy Council authority in Shahzadi Begam v. Secretary of State for India, (1907) ILR 34 Cal. 1059 (PC) that the admissibility in evidence of a document which has been admitted without objection the first Court cannot be questioned in appeal. The record does not show that the plaintiff made any objection tot he filing of the documents or the statement of the counsel that they were true copies of the original. It is no doubt true that the Patwari should have been examined but considering that no objection was taken to the admissibility of these documents. I decline to consider at this stage the question of their admissibility. Reference authority of Sir Shadi Lal, C. J. and Tapp, J. in Fauja Singh v. Allh Ditta, AIR 1931 Lah 722, where the law was stated thus:
"It is well established that where a fact has been erroneously allowed to be proved in a manner different from which the law requires, and no objection is taken in the Court of first instance, such objection cannot be taken later in appeal. This view is based on the principle that if objection is taken at the proper time to the reception of certain evidence (not inadmissible in itself) owing to such evidence not being produced in the form prescribed by law, an opportunity can be afforded to the party producing such evidence to remedy the defect and satisfy the requirements of the law."
In Suraj Bhan v. Hafiz Abdul Khaliq, AIR 1944 Lah 1, a Division Bench authority of Din Mohammad and Sale, JJ., a copy of a copy was admitted in evidence as its admissibility was not questioned at an initial stage.
2. It is argued by Mr. Kaushal that if an objection had been taken with regard to the admissibility of the jamabandis the Patwari would have been immediately summoned to remedy the defect. In his submission, it is now too late for the respondents to take an objection to the admissibility of documents which had been received without objection before the lower appellate Court. In view of the principles laid down by their Lordships of the Privy Council and the Division Benches of the Lahore High Court, I am of the view that the documents Exhibits A. 1 to A.7 have been properly received in evidence and their admissibility cannot be questioned at this stage."
3. After considering the additional evidence which the learned Single Judge permitted, he reversed the decision of the Courts below and dismissed the plaintiff's suit. Against this decision, the plaintiff preferred an appeal came up for hearing before my Lord the Chief Justice and Mr. Justice Tuli. It was argued before the Letters Patent Bench that some of the defendants had died during the pendency of the letters patent appeal and their legal representatives had not been brought on the record, and therefore, there was a decree against a dead person. It was also argued before the Bench that the abatement would be total and not partial. However, the Bench left the question of abatement open and set aside the judgment of the learned Single Judge and remitted the case for a fresh decision taking the view that a judgment against a dead party was a nullity. That is how the matter has been placed before me.
4. The learned counsel for the respondents again argued that by reason of the death of some of the defendants appellants, there would be total abatement. He relied upon a large number of decisions, including Vinod Sagar v. Vishnubhai. AIR 1947 Lah 388, State of Punjab v. Nathu, AIR 1962 SC 89, Ram Sarup v. Munshi, AIR 1963 SC 553, and Puran Singh Basawa Singh v. Hazara Singh Punjab Singh, AIR 1966 Punj 312. In my opinion, none of these cases has any relevancy so far as the present controversy is concerned. The matter really stands concluded by a Full Bench judgment of the Lahore High Court in Nanak v. Ahmad Ali, AIR 1946 Lah 399 (FB). The judgment of the Full Bench was delivered by Achhru Ram, J. and it was held that:-
"Where a person claiming to be the true owner of certain property obtains a decree for possession of that property against trespassers, each trespasser has an independent right to appeal against the decree and the mere circumstance that one of the defendants does not appeal from the decree or even confesses judgment, would not disentitles the other to appeal. In effect and in substance in a case of this type there are as many decrees for ejectment or dispossession as there are trespassers. One trespasser agreeing to a decree being passed against him or not appealing from a decree after it has been passed, has the effect only of dislodging him from the property. If his other co-defendant files the appeal and succeeds, it cannot be said that in consequence of the acceptance of his appeal two inconsistent decrees will becomes final against the non-appealing defendant is only a decree for his ejectment. The effect of the acceptance of the appeal of the co-defendant will be that he cannot be ejected."
5. This principle fully applies to the facts of the present case. No decision in similar circumstances taking the view that abatement will be total, has been brought to my notice, and, in any event. I am bound by this decision. I would, therefore, hold that in the circumstances of this case, there would be no abatement at all. The consequences of the death of some of the appellants would be that their names would be struck off from the record as their legal representatives cannot be impleaded now as the period of limitation has expired. The names of those appellants are Sawan, appellant No. 4, Samkhur appellant No. 7 and Bhagwan Dass appellant No. 19.
6. On the merits, Mr. Atma Ram, learned counsel for the respondents, raised the contention that his clients were not allowed any opportunity to rebut the additional evidence which was let in my Shamsher Bahadur, J. This is so. The learned counsel for the appellants have referred to O. 41, Rr. 27 and 28, Code of Civil Procedure, for the proposition that it is not necessary to proposition that it is not necessary to permit rebuttal of the additional evidence. I am unable to agree with this contention. It is a fundamental rule of justice that whenever additional evidence is let in, the opposite party has to be permitted to rebut it; otherwise it will lead to grave injustice, particularly when the evidence is of such a nature that it raises a rebuttable presumption, and that rebuttable presumption can only be displaced if an opportunity is allowed in that behalf. As no opportunity has been allowed merely on the ground that the additional evidence is in the shape of revenue record, it is fair that such an opportunity should be allowed and I hold accordingly.
7. The only question is what course the proceedings should take in order to give that opportunity? In my opinion, it would not be proper to disturb the findings of the Courts below on the other issues that have been fully tried. Additional evidence has been allowed only on one issue and it will be proper that after the rebuttal is given the lower appellate Court should record a finding on that issue and then submit its report along with any evidence led in rebuttal to this Court. So far as the appellants are concerned, they have produced whatever evidence they wanted to product in pursuance of the order of the learned Single Judge. The opportunity would only be accorded to the respondents in this behalf to rebut the at evidence.
8. I accordingly direct the lower appellate Court to permit the respondents to lead any evidence in rebuttal of the revenue record produced as additional evidence by the appellants. The parties are directed to appear before the lower appellate Court on 16th November, 1970. The lower appellate Court will, after recording the evidence in rebuttal, submit its report to this Court within three months from the date the parties appear before it.
9. Judgment accordingly.