Himachal Pradesh High Court
Krishni Devi And Others vs The Land Acquisition Collector And ... on 29 December, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RFA No.48 of 1999 a/w RSA 256 of 1995, .
RSA Nos. 259 and 267 of 2000.
Judgment reserved on: 27.11.2017.
Date of decision: 29th December, 2017.
1. RFA No. 48 of 1999.
Krishni Devi and others ...Appellants.
Versus
The Land Acquisition Collector and others ...Respondents.
For the Appellants : Mr.Bhupender Gupta, Senior Advocate with
Mr.Neeraj Gupta, Advocate.
For the Respondents : Mr.Pushpinder Jaswal, Deputy Advocate
General with Mr.Rajat Chauhan, Law
Officer, for respondent No.1.
Mr.K.D.Sood, Senior Advocate with
Mr.Rajneesh K.Lal, Advocate, for
respondents No.2 and 3.
Mr.G.D.Verma, Senior Advocate with
Mr.B.C.Verma, Advocate, for respondents
No. 4 to 6.
2. RSA No.256 of 1995.
Parshotam Singh (since deceased) through
LRs Krishna Devi and others ...Appellants-Defendants.
Versus
Harnam Singh (since deceased) through
LRs Sandhya Devi and others ...Respondents-Plaintiffs.
For the Appellants : Mr.K.D.Sood, Senior Advocate with
Mr.Rajneesh K.Lal, Advocate.
For the Respondents : Mr Bhupender Gupta, Senior Advocate with
Mr.Neeraj Gupta, Advocate, for
respondents No.1 and 3.
Respondents No.2 (a) to 2(c) proceeded ex
parte.
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2
3. RSA No.259 of 2000.
Lila Devi (name deleted vide order dated
18.10.2012) now Rajinder Singh and others
.
...Appellants-Defendants.
Versus
Diwan Chand (since deceased) through
LRs ...Respondents-Plaintiffs.
For the Appellants : Mr.G.D.Verma, Senior Advocate with
Mr.B.C.Verma, Advocate.
For the Respondents : Mr Bhupender Gupta, Senior Advocate with
Mr.Neeraj Gupta, Advocate, for
respondents No.1 to 7, 9, 11, 24, 28 to 30,
r 34 to 40, 47 to 50, 62 to 65, 68, 70, 71, 74,
75, 79, 81, 82, Court Guardian of
respondent No.61(i).
None for respondent No.61 (h) (c).
4. RSA No.267 of 2000.
Purshotam Singh (since deceased) through
LRs Krishna Devi and others ...Appellant s-Defendants.
Versus
Diwan Chand (since deceased) through
LRs Chinti Devi (name deleted vide order
dated 11.05.2010) now
Shankar Dass and others ...Respondents-Plaintiffs.
For the Appellants : Mr.K.D.Sood, Senior Advocate with
Mr.Rajneesh K.Lal, Advocate.
For the Respondents : Mr Bhupender Gupta, Senior Advocate with
Mr.Neeraj Gupta, Advocate, for
respondents No.7 to 11, 24, 28 to 30, 34 to
40, 47 to 51, 62 to 68, 70, 71 and 75.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? 1 No Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 3 Tarlok Singh Chauhan Judge.
Since the subject matter in all these appeals is virtually the .
same, therefore, though they were taken up together for hearing, yet are being disposed of separately in a common judgment.
RSA No.256 of 1995.
2. The appellants/defendants have filed this Regular Second Appeal against the judgment and decree dated 27.06.1995, passed by learned District Judge, Hamirpur, H.P., whereby he reversed the findings of the learned Senior Sub Judge, Hamirpur, H.P. The facts of the case may be noticed as follows:-
3. The respondents/plaintiffs (herein after referred to as 'plaintiffs') filed a suit for declaration against the appellants/defendants (herein after referred to as 'defendants'), to the effect that they were owners in possession, as such they were entitled for a separate possession by seeking partition.
4. According to the plaintiffs, Amar Singh, father of defendant No. 1 and 6 and the husband of defendant No.7 was the owner in possession to the extent of 1/3r d share in Khata Khatauni No. 41 to 57 total measuring 299 Kanals as per the jamabandi for the year 1955-56. It was alleged that Shri Labh Singh the predecessor of the plaintiffs had purchased 48 Kanals 7 marlas of land from said Shri Amar Singh with the share in the Shamlat on 31.07.1959 and one Shri Lohku had also purchased 49 kanals 19 marlas of land from him with the share in Shamlat in the year 1953. Thus, in total said Shri Amar Singh parted with 98 kanals 6 marlas of land with the proportionate shares in Shamlat and was only left with him 1 Kanal 7 Marlas, of the Malkiyati land and 8 Marlas as a share in Shamlat. It was further alleged that on 31.01.1983 defendants No. 2 to 6 had sold 1 Kanal 2 Marlas Malkiyati land along with 17 Kanals 12 Marlas of ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 4 Shamlat land to defendants No. 8 and 9. Further on 02.02.1983 the defendants No. 2 to 6 sold 8 marlas from Malkiyati land and 7 Kanals 1 .
Marla from the Shamlat land to the same defendants. Thereafter, defendants No. 8 and 9 further sold some portion of it to defendants No.10.
It was averred that the plaintiffs remained in possession of the land purchased by them in the year 1959 from Amar Singh. Since their share in Shamlat land was 1/8th share i.e. 12 Kanals 15 Marlas, therefore, they were entitled to it by partition.
5. to The partition proceedings were filed before the Assistant Collector, Ist Grade, Bhoranj, wherein the defendants had raised the question of partition. Thus, the parties were directed to get it settled from the Civil Court. The plaintiffs thus prayed for the relief of declaration with a consequential relief of injunction against defendants No. 8 to 10, as they had threatened to change the nature of the suit land by raising construction.
6. The suit was resisted and contested by the defendants by filing two separate written statements. Defendants No. 1, 9 and 10 in their written statement raised preliminary objections regarding maintainability of the suit, locus standi of the plaintiffs, inter-alia non-joinder and mis-joinder of necessary parties and that the suit was bad for want of better particulars of the suit land. On merits, the replying defendants expressed their ignorance about the sale of the land with share in Shamlat by Amar Singh to the plaintiffs and Lohka but they admitted the sale in favour of defendants No. 8 and 9, by Amar Singh and the sale of a portion to the defendant No.10, as alleged, was also admi tted.
7. Defendants No. 2 to 8 filed separate written statement, wherein in addition to the above, they took the plea of estoppel by raising preliminary objections and further pleaded that the injunction could not be issued against the statute. It was also contended that the land in suit was a ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 5 part of Tika, but it was owned by Amar Singh and subsequently sold to defendants No. 8 and 9 by him. Denying the right of the plaintiffs to seek .
partition, they prayed for dismissal of the suit.
8. The learned trial Court framed the following issues:-
"1. Whether the land in suit described in para No. 1 of the plaint formed part of the Shamlat Tika of Tika Bothi?
OPP Onus objected.
2. Whether the plaintiff is entitled to 12 kanals 15 marlas of the above said land by seeking partition? OPP
3. Whether the suit is bad for non-joinder and misjoinder of parties?
OPD
4. Whether the plaintiffs have never been in possession of the suit land and, therefore, the suit of the plaintiff is barred by time?
OPD 2 to 8 (onus objected)
5. Whether the plaintiff is estopped from filing the suit by his own act deed and conduct? OPD
6. Whether the suit for injunction against statute is not competent?
OPD 2 to 8
7. Relief."
9. After recording evidence and evaluating the same, the learned trial Court dismissed the suit only on the ground of non-joinder of necessary parties, whereas the other issues were decided in favour of the plaintiffs. Aggrieved by the judgment and decree passed by the learned trial Court, plaintiffs preferred an appeal before the learned lower Appellate Court and the same was allowed. Aggrieved against the judgment and decree passed by the learned lower Appellate Court, defendants/appellants filed the instant appeal.
10. This Court admitted the appeal on the following substantial questions of law:-
"1. Whether the suit of the plaintiff was barred by limitation, when the defendant appellant has been proved to be in open, continuous and hostile possession for more than 12 years before the filing of the suit?
2. Whether the plaintiff was entitled to possession of 5 Kanals and 15 Marlas of land and also share in Shamlat when it was established that the defendant/appellants were bonafide purchasers for ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 6 consideration and were in possession of the property not more than their share and had preserved the property on that account?
.
3. Whether the special rights created in favour of the appellants and recorded in the revenue record, 1927 on the basis of which compensation was specifically paid to the appellant, the plaintiff's suit was barred by principles of resjudicata and the plaintiff was estopped from filing the suit?
4. Whether the civil court had no jurisdiction in this matter and plaint was liable to be returned?
5. Whether the findings are vitiated for not framing the proper issues and misconstruction of the pleadings of the parties?
6. Whether the findings of the court below are vitiated for misreading and misconstruction of the pleadings of the parties and oral and documentary evidence?"
I have heard the learned counsel for the parties and have also gone through the records of the case.
Question No.1.
11. It would be noticed that PW-1 Harnam Singh stated on oath that he was in possession of Khasra No.294 for the last 15-16 years over which he had constructed a cowshed. He also stated that he was in possession of Khasra No.422 out of the 'Shamlat Tika Bhoti'. Likewise, PW-5 Sarwan Singh also stated on oath that there was a cowshed on Khasra No. 294, whereas, Khasra No. 422 was under the cultivating possession of the plaintiffs. He also stated that the lands had once been demarcated in his presence and formed part of the 'Shamlat Tika Bhoti'.
12. Adverting to the defence of the defendants, all the DWs including two defendants stated that they did not know if the plaintiffs were in possession of any portion of the 'Shamlat' land and further feigned ignorance regarding existence of the cowshed of the plaintiffs over Khasra No.294. Once, the defendants/appellants claimed to have no knowledge of the plaintiffs' possession over the suit land, obviously then they cannot set ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 7 up a plea that they are in possession of the suit land and such possession has ripened into ownership. That apart, it is well settled and cardinal .
principle of law that possession follows title and unless there is evidence of dispossession or ouster, the owner is presumed to be in possession of his property. Accordingly, this issue is answered against the appellants.
Question No.2.
13. The plaintiffs have placed on record sale deed Ex.P-1 which clearly discloses the sale of 48 Kanals 7 Marlas of land by Amar Singh deceased in favour of Labh Singh along with share in 'Shamlat' and this fact was not even disputed before the learned trial Court. The only plea set up by the defendants was that the land described in the sale deeds Ex.D-1 and D-2, measuring 17 Kanals and 12 Marlas and 7 Kanals 1 Marla formed 5/21 and 2/21 parts of Khata No.13, Khatauni No.76, Khasra Nos. 432, 294, 433 measuring 73 Kanals 17 Marlas as per jamabandi for the year 1979-80 which were in exclusive of defendants No. 2 to 6 the vendors.
However, this contention was rejected by the learned Courts below and rightly so because the possession of one co-sharer is possession of all and unless clear ouster is proved for more than 12 years with animus possendi to the exclusion of other co-sharers, a co-sharer cannot become owner of an exclusive part of the joint holding. It was also noticed that copy of the jamabandi for the year 1955-56 of Tika Bhoti discloses that there was total 'Shamlat' land measuring 208 Kanals 15 Marlas at the time of sale by Amar Singh to Labh Singh. Copies of 'Sajra Nasab' Ex.P-9 to P-15 do disclose that Dharam Singh father of Amar Singh had 3/8 shares in the total 'Shamlat' then existing and his three sons Amar Singh, Bishashar Singh and Mohar Singh succeeded to his estate and acquired 1/8 share each from Dharam Singh in the 'Shamlat' land 1/3 share of his own holding. It was admitted before the learned trial Court that the private joint holding ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 8 was 299 Kanals and in this manner Amar Singh had acquired 99 Kanals 13 Marlas of land in the private joint holding and 26 Kanals 2 Marlas .
'Shamlat'. Out of 99 Kanals 13 Marlas, Amar Singh sold 48 Kanals 7 Marlas to Labh Singh vide sale deed Ex.P-1 dated 31.07.1959 along with proportionate shares in the 'Shamlat' which comes to 12 Kanals 15 Marlas in the 'Shamlat' Tika Bhoti from Amar Singh along with privately owned land. In addition to the above, it has also come in the evidence that after this sale Punjab Village Common Land (Regulation) Act and H.P. Village Common Land(Vesting and Utilization) Act had come into force and as per copy of jamabandi for the year 1983-84 Ex.P-2 and P-3 only 91 Kanals and 19 Marlas of 'Shamlat' land was kept in reserve pool while rests 116 Kanals 16 Marlas vested in the State and formed part of allotable pool.
14. Once that be the admitted position, then proportionately 7 Kanals out of the shares of the plaintiffs vested in the State and for med part of the allotable pool and, therefore, only 5 Kanals 15 Marlas of land remained as share of the plaintiffs. Notably, the defendants having denied that the plaintiffs are co-sharers in the 'Shamlat' and the only defence set up by them was that they did not know whether Labh Singh had earlier been in possession and to deny the rights of the co-sharers had feigned ignorance regarding the possession of Labh Singh at an earlier occasion and later that of the plaintiffs over the 'Shamlat' land and as observed earlier their only plea is that of co-owners regarding possession of Labh Singh or plaintiffs. Accordingly, this question is also answered against the appellants.
Question No.3
15. I really wonder how this question even arises for consideration because admittedly the predecessor of the defendants Amar Singh had himself sold the lands as described above along with ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 9 proportionate share in 'Shamlat' on 31.07.1959 to the predecessor-in-
interest of the plaintiffs. Admittedly, the sale deed has never been .
challenged and, therefore, it is beyond comprehension that the suit of the instant kind would be barred by the principles of res judicata or estoppel.
Even otherwise, the defendants had to lay down a proper foundation for such plea and thereafter prove the same in accordance with law. The question is accordingly answered.
Question No.4.
16. to Admittedly, the suit filed by the plaintiffs was one for declaration of title and, therefore, it is the Civil Court which alone can grant such a declaration and accordingly the question is answered against the appellants/defendants.
Question No.5.
17. As regards non framing of issues, this question becomes immaterial firstly for the reason because non framing of issues is immaterial as the parties in this case were alive to their respective pleas raised in their pleadings. That apart, the appellants have failed to point out as to how non framing of issues has materially prejudiced their case. The parties proceeded to trial fully knowing the rival's case and led all the evidence not only in support of their contentions but in refutation thereof by the other side. In such an eventuality, absence of issues would not be fatal and it would not be permissible for the party that there has been a mis-trial and proceedings stood vitiated. (Vide: Nagubai Ammal & others versus B.Shama Rao & Ors, AIR 1956 SC 593, Nedunuri Kameswaramma versus Sampati Subba Rao, AIR 1963 SC 884, Kunju Kesavan versus M.M. Philip & Ors., AIR 1964 SC 164, Kali Prasad Agarwalla (dead) by L.R.s & Ors. versus M/s Bharat Coking Coal Ltd. & Ors., AIR 1989 SC 1530, Sayed Akhtar versus Abdul Ahad , (2003) 7 SCC 52, Bhuwan ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 10 Singh versus Oriental Insurance Co. Ltd., AIR 2009 SC 2177 and Kalyan Singh Chouhan versus C.P. Joshi (2011) 11 SCC 786).
.
Question No.6.
18. The pleadings and evidence led in support thereof have already been discussed above and, therefore, on the strength of such discussion, it cannot be said that the findings recorded by the learned Courts below are vitiated on account of misreading and misconstruction of right perspective.
r to pleadings of the parties and the Courts below have not appreciated in the
19. Having said so, I find no merit in this appeal and accordingly the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
RSA Nos. 259 and 267 of 2000.
20. In both these appeals, the respondents were plaintiffs and filed a suit for partition and permanent prohibitory injunction to the effect that the land comprised in Khasra Kita 182, measuring 299 Kanals as per jamabandi for the year 1951-52 under the name of Amar Singh, father of defendants No.1 to 6 and husband of defendant No. 7 and Basheshar Singh and Mohar Singh, sons of Dharam Singh, situated in Tika Bhoti, Tappa Bamson, Tehsil Bhoranj, District Hamirpur, was owned and possessed by them.
21. Brief facts of the case are that the plaintiffs are owners to the extent of 1/12 share of the land measuring 24K-19M out of the land comprised in Khata No.8, Khasra Kita 172 Salam and min, 1/18 share out of Khasra No.10 and 1/24 share out of Khata No.10, as per mutation No.93, registered on 19.09.1953 and sanctioned on 20.11.1957 along with share in Shamlat by defendant No.12 Basheshar Singh in favour of Lohku, predecessor-in-interest of plaintiffs and Khata No.8, Khasra Nos. Kita 172 ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 11 Salam and min area measuring 299 Kanals. Out of this 1/6 share measuring 39 Kanals 17 Marlas and 1/9 share out of Khata No.9 measuring .
1 Marla, 1/12 share out of Khata No.10, measuring 1 Marla, total area 49 K 19M as per mutation No.93 sanctioned on 20.11.1953 by Amar Singh, father of defendants No.1 to 6 and husband of defendant No. 7 and Khata No.8, Khasra Kita 172 Salam and min, area 299 Kanals. Out of this 1/18 share measuring 16K-12M along with share in Shamlat by defendant No.11 through sale deed dated 26.09.1956 vide mutation No.106 sanctioned on 30.03.1957 in favour of plaintiffs, 15/1008 share area measuring 4K-8M along with share in Shamlat from Khata No. 8, Khasra Kita 183 Salam and min, area measuring 299 K by defendant No.11 vide mutation No.111 sanctioned on 12.04.1960 in favour of plaintiffs, total land measuring 95K-
19M along with share in Shamlat measuring 25K-4M, Khata No.12, measuring 208K-15M, Khata No. 20, Khatauni No.74, 284, Khasra Nos.
422min, 422min, 422 min, 381, 411, 421, 424, 294, 433, 421min, 432, 425, kita 12, land measuring 91K-19M. It was averred that the sale effected by defendants No.1, 2, 4 to 6 through sale deed dated 31.01.1983 area 1K-2M and 17K-5M as Shamlat in favour of defendants No.8 and 9 through mutation No.197 sanctioned on 22.06.1984 and sale deed registered on 02.02.1983 on behalf of defendants No.3, 7 Kapal Singh alias Kashmir Singh and Smt. Shiv Devi to the extent of 89/62790 share, Khata No.10, measuring 8M instead of 2M and 2/63 share in Khata No. 11, and 1/42 share in Khata No.12 total area 2M instead of 8M and Khata No.13, Khatauni No.74, Khasra Nos.432, 293, 433, to the extent of 2/21 share area measuring 7K-1M as Shamlat the mutation of which had been sanctioned vide mutation No.195 dated 15.02.1983 in favour of defendants No.8 and 9 and the sale deed dated 17.10.1974 on behalf of Basheshar Singh, defendant No.12 vide mutation No.139 of Khata No.10 to the extent ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 12 of the share 1205/2461368, measuring 3M and 1/24 share in Shamlat and Khata No.11, 2/9 share, area 2M and 1/24 share out of Khata No.13 and .
13, Khata Nos. 74, 76 the share being 1/3 area 28K-3M of defendants No. 14 to 16 dated 05.08.1979 and sale on behalf of Mohar Singh in favour of Bhup Singh, father of defendants No.14 to 16 and husband of defendant No.13, Khata No.10, area nil and Khata No.11, Khasra No. 217 area 9 Marlas to the extent of 2/9 share area 2M and 1/3 share out of Khata possession to No.13, Khatauni No. 74 land measuring 24K-12M in the column of out of total Shamlat area 24K-14M along with 77K-8M in Shamlat made in favour of defendants No.8 and 9 as well defendants No.10 and 13 to 32 on the basis of said sales, the said defendants have no right to take in partition the share in Shamlat comprising Khata No.12 old present Khata No.20, vide jamabandi for the year 1983-84 area measuring 91K-19M which is more than share in the land which was owned and purchased by them and so they have no right to prevent the plaintiffs from taking their share in Shamlat through partition and neither they have any right to prevent the plaintiffs from taking their share in Shamlat from Khata No.20, Khatauni No.74 to 82, Khasra Kita 12 measuring 91K-19M which comes to 25K-4M in favour of the plaintiffs which share in Shamlat. It was also averred that defendants No.8 to 10 and 13 to 32 had no right to prevent or desist the plaintiffs from taking their share in Shamlat and the plaintiffs have a right to get the land partitioned comprised in Khata No.20 which is Shamlat Tika area 25K-4M as co-sharers in Shamlat and defendants No.8 and 9 and defendants No.13 to 16 and the subsequent vendees have no right to resist the plaintiffs from taking 25K-4M as per their share in the Shamlat and the defendants No.8 and 9 and their subsequent transferees defendants No.10 and 13 to 16 and their subsequent transferees have got no right to interfere in the rights of the ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 13 plaintiffs to take their share in partition or that the said defendants had no right to object the plaintiffs from getting their share in partition from Khata .
No.20, Khasra No.422min, 422min, 422min, 381, 411, 421, 432, 293, 433, 421min, 424, 425, Kitas 12, area 91K-19M as per jamabandi for the year 1982-84 area measuring 25K-4M through partition. It was also averred that the defendants have no right to raise any construction or change the nature of the land in any manner.
22. In a nutshell, the case of the plaintiffs is that they are the purchasers of the land from real owners i.e. Amar Singh, Basheshar Singh and Mohar Singh, sons of Dharam Singh. Dharam Singh was the owner of total land measuring 299 Kanals. It was further averred that the defendant No. 12 Basheshar Singh sold the land to the extent of 24K - 18M in Khata No. 8 and 1 Marla in Khata No. 9, total land 24K - 19M vide Mutation No. 93 which was sanctioned on 20.11.1957. Defendant Amar Singh sold land to the extent of 49K-19M in Khata No. 8/9 vide mutation No. 91 (Ext. P.7), dated 14.09.1953 which was sanctioned on 20.11.1953. Similarly, Mohar Singh defendant sold land measuring 16K-12M vide Mutation No. 106 (Ext.P-9) which was sanctioned on 30.03.1957. Again Mohar Singh sold 4K-19M land to the plaintiffs vide Mutation No. 111 (Ext.P.10), which was sanctioned on 12.04.1960. The total land comes to 96 Kanal - 9 Marlas.
Mutation No.136 (Ext. P.12) which was sanctioned on 14.06.1973 also clarifies that the land was sold alongwith Shamlat. Rest of the land which was sold later on vide Ext. P.13 and Ext. P.19 where the share of Shamlat should not have been sold as the share of Shamlat has already been sold vide Ext. P.7, P.8, P.9, P.10 and P.11. So subsequent vendees have claimed their share in Shamlat and thus this is a suit for declaration and in the alternative for permanent injunction by way of partition.
::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 1423. The defendants contested the claim of the plaintiffs.
Defendants No.1, 9 and 10, 13, 14, 15, 16, 21 and 31 as well as .
defendants No.2 to 8 are the contesting defendants. Defendants No. 13, 14, 15, 16 and 21 admitted the sale deeds of the years 1983 and 1974 in favour of the plaintiffs and Bhup Singh, father of defendants. The allegation of the defendants is that the predecessor-in-interest of the vendors Shri Majlasi was gi ven a grant by the Settlement Officer for raising grass and he had been exercising the same right. Thus, the rights were passed on to the vendees who had purchased the land from successor-in-interest of Majlasi and they had a right to keep 'Rakh' for all the times. It was also admitted that they have further sold land out of Shamlat to defendants No. 17 to 25, who are vendees for consideration and possession is also given.
In a nutshell, the claim of the plaintiffs is denied. However, in the alternative adverse possession was claimed.
24. Defendants No.17 to 27 filed separate written statement thereby raising preliminary objections that the suit is bad for non joinder and mis joinder of necessary parties, the suit is not within time, the plaintiffs are estopped from filing the suit and they have no cause of action. It was averred that the replying defendants are owners as they have purchased the land for consideration. They have denied the right of the plaintiffs to get the land partitioned. The plaintiffs are denied to be the owners of the suit land.
25. Defendants No. 19, 20, 22 to 24 also filed separate written statement and they also took the similar objections. They have denied the sale in favour of the plaintiffs. It was alleged that the plaintiffs being vendees are not entitled to seek partition of the suit land.
26. Defendants No. 2 to 8 also contested the suit and raised objections that the suit is not within time and is not maintainable. The ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 15 plaintiffs have got no cause of action. It was alleged that the plaintiffs have not purchased the land and they are also not in possession of Shamlat .
land.
27. The newly added defendants No.36 to 39, 42 to 46, 48, 57 to 63, 66, 67, 70, 72, 73, 75 to 79 also filed written statement and admitted that the land is recorded in the names of Amar Singh, Basheshar Singh and Mohar Singh sons of Dharam Singh. It is also admitted that after the purchase, the plaintiffs are the owners of the land and they are in possession of it. They have got every right to get the land partitioned. The sale in favour of defendants No. 8, 9, 13 to 16 and 17 to 32 is stated to be null and void.
28. Replication was filed by the plaintiffs wherein they have re-
asserted their stand and the stand of the defendants taken in their respective written statements is controverted and denied.
29. On 10.02.1988, the learned trial Court framed the following issues:-
"1. Whether the plaintiffs purchased 95K-19M of land from Bisheshar Singh etc. with share of Shamlat in the Tika? OPP
2. If Issue No.1 is pr oved, whether the plaintiffs have a share of 25K-4M in shamlat tika Bhoti and are entitled for partition? OPP.
3. Whether the suit of the plaintiffs is within time? OPP.
4. Whether the plaintiffs are estopped from filing the present suit by their act, deed and conduct? OPD.
5. Whether the suit is bad for non-joinder of necessary parties? OPD.
6. Whether the defendants are entitled to any special costs, if so, to what extent? OPD.
7. Whether Khasra No.609 of 1868 in Tika Bhoti was granted exclusively to one Majalsi by the then Settlement Officer as alleged. If so, its effect? OPD 13 to 16, 21 and 31.::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 16
8. Whether the defendants No.9 to 15, 19 to 24 are bonafide purchasers for consideration without notice of the right of the plaintiffs? OPD 9 to 15, 19 to 24.
.
9. Whether the defendants No.13 to 16, 21 and 31 have made improvements by plantation, if so to what effect? OPD 13 to 16, 21 and 31.
10. Whether the defendants 13 to 16, 21 and 31 are in adverse possession of the suit land as alleged? OPD 13 to 16, 21 and 31.
11. Whether the plaintiffs are not in possession of any portion of the Shamlat Tika and as such the suit of the plaintiffs for partition is not maintainable? OPD 2 to 8.
12. Whether the alleged grant in favour of defendants No.13 to 16, 21 and 31 has been extinguished as alleged? OPP.
13. Relief."
30. The learned trial Court after recording evidence and evaluating the same decreed the suit filed by the plaintiffs. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants-
appellants preferred an appeal which too was dismissed by the learned first appellate Court constraining them to file the instant appeal before this Court.
31. Two sets of respondents thereafter filed appeals which were registered as RSA Nos.259 and 267 of 2000. RSA No. 259 of 2000 came to be admitted by this Court on 08.06.2000 on the following substantial questions of law: -
"1. What is the effect of the coming into force of Punjab Village Common Lands (Regulation) Act, 1961, and the H.P. Village Common Lands (Vesting & Utilization) Act, 1974?
2. Whether the Civil Courts have the jurisdiction to grant the declaration sought for by the plaintiffs in view of the enforcement of the abovesaid Acts?
3. Whether the suit of the plaintiffs is competent without impleading the State Government as a party?::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 17
4. Whether the suit of the plaintiffs, as laid, was within time?"
32. Subsequently, RSA No.267 of 2000 came to be admitted on .
23.06.2000 on the same substantial questions of law and was ordered to be connected with RSA No.259 of 2000. However, when the appeal was taken up for final hearing, Shri G.D.Verma, learned Senior Advocate assisted by Shri B.C.Verma, Advocate, for the appellants in RSA No.259 of 2000 would draw my attention to the application bearing CMP No.6107 of 2016 to contend that the issue of title as involved in the instant case is no longer res integra in view of the judgment rendered by a learned Division Bench of this Court in RFA No.39 of 1993 and, therefore, this Court while sitting singly is bound by the said judgment and the appeals be accordingly disposed of in light of the Division Bench judgment.
33. I have considered the said submission and find that initially 'Harnam Singh and others' had filed a Civil Suit No.159-1 of 1986 on 01.07.1986, titled 'Harnam Singh and others versus Purshotam Singh and others' in the Court of learned Senior Sub Judge, Hamirpur, however, the same was dismissed vide judgment and decree dated 03.09.1988. The plaintiffs were owners in possession of 12 Kanals 15 Marlas out of the 'Shamlat' land comprised in Khata No. 20, Khatauni Nos.74 to 82, Khasra No. 422min, 422min, 423min, 381, 411, 421, 432, 294, 433, 421min, 424 and 425, kitas 12, measuring 91 Kanals 19 Marlas, situated in Tika Bhoti Tappa Bamsan, Tehsil Bhoranj, District Hamirpur. Even though, the plaintiffs were entitled to 5 Kanals 15 Marlas of the land out of the remaining 91 Kanals 19 Marlas in Tika Bhoti, but in view of the findings recorded qua issue No.3, the suit was dismissed on account of non-joinder and mis-joinder of necessary parties.
::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 1834. Noticeably, only the plaintiffs filed an appeal before the learned District Judge which was registered as Civil Appeal No.140 of 1988 .
wherein the judgment and decree passed by the learned trial Court on issue No.3 was set aside and consequently the suit as filed by the plaintiffs was decreed to the effect that they are owners of 5 Kanals 15 Marlas and also entitled for its possession on partition from the 'Shamlat' land measuring 91 Kanals 19 Marlas, situated in Tika Bhoti, Tappa Bamsan, Tehsil Bhoranj, District Hamirpur, H.P. The judgment and decree so passed is the subject matter of RSA No. 256 of 1995 which has already been ordered to be dismissed (supra).
35. Another Civil Suit No.218-1 of 1986 came to be filed by 'Diwan Chand and others' on 23.08.1986 'titled Diwan Chand and others versus Purshotam Singh and others' before the learned Senior Sub Judge, Hamirpur, H.P., which is now the subject matter of the instant appeals wherein admittedly the decree stands passed against the defendants/appellants by the learned trial Court and even the appeal preferred by them against the said judgment and decree stands dismissed by the learned first appellate Court. Meaning thereby, the appellants have not been held to be entitled to be the owners of the land in question wherein even the respondents have been held to be the owners of part thereof.
36. Reference Petition was filed under Section 18 of the Land Acquisition Act before the learned District Judge, Hamirpur and the compensation amount was enhanced as per award dated 08.09.1992.
37. Aggrieved by the passing of the award, the State Government filed three appeals before this Court which were registered as RFA Nos. 39, 40 and 74 of 1993 and same were came to be dismissed on 01.11.1996. Even the Special Leave Petition filed against the same was ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 19 dismissed by the Hon'ble Supreme Court on 08.05.1998. Therefore, the matter attained finality. In this view of the matter, it is vehemently argued .
by Shri Verma that since the question has been settled and determined effectually and properly that too by a learned Division Bench of this Court, this Court is precluded from going into the question of title.
38. I have heard the learned counsel for the parties and have also gone through the records of the case and find no merit in the one reasons.
r to submissions made by the learned counsel for the appellants for more than
39. At this stage, it would be necessary to advert to the necessary provisions of the Land Acquisition Act insofar as they relate to the enhancement of compensation provide for an appeal against the award of the Collector. Section 18 relates to the enhancement of compensation and reads thus:-
"18. Reference to Court.-(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken:
Provided that every such application shall be made,-
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-
section(2), or within six months from the date of the Collector's award, whichever period shall first expire."
::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 20Whereas, Section 30 of the Land Acquisition Act relates to the apportionment of the award and reads thus:-
.
"30. Dispute as to apportionment.- When the amount of compensation has been settled under section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court."
40. It is not in dispute that the proceedings before the learned District Judge were only regarding enhancement of compensation as the same were filed under Section 18 without there being any dispute with regard to entitlement or apportionment of the award as envisaged under Section 30 of the Act. Now, therefore, in this background, can it be held that even without determining the right and title of the parties either by the Collector or District Judge or this Court or by the Hon'ble Supreme Court, can the matter be said to have impliedly decided on the question of title.
Without expressly determining the title of the parties to the property, can award regarding enhancement be said to be binding upon the respondents, who admittedly were not even the party to the said award. The award made by the Collector is final and conclusive as between the Collector and the "persons interested", whether they have appeared before the Collector or not on three issues; (i) as to true area i.e. measurement of the land acquired, (ii) as to value of the land i.e. amount of compensation and, (iii) as to the apportionment of the compensation among the persons interested again between the Collector and the "persons interested" and not as amongst the "persons interested" interse. In the event of a reference having been sought for under Section 18, the Collector's award on these issues, if varied by Civil Court, shall stand superseded to that extent. The scheme of the Act does not attach a similar finality to the award of the Collector on the ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 21 issue as to the person to whom the compensation is payable, in spite of the award by the Collector and even on failure to seek reference, such issue .
has been left available to be adjudicated upon by any competent forum.
(Refer: Sharda Devi versus State of Bihar and another (2003) 3 SCC
128).
41. It is then argued by Shri G.D.Verma, Senior Advocate assisted by Shri B.C.Verma, Advocate that the appeal filed by the appellants is to be allowed as the findings in RFA No.39/ 1993 would operate as res judicata in the instant appeal.
42. Section 11 of CPC reads thus:-
"11. Res judicata No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II: For the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court. Explanation III: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV. -Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V: Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 22
Explanation VI: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the .
purposes of this section, be deemed to claim under the persons so litigating.
[Explanation VII: The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII: An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]"
43. It is more than settled that a prior suit would not operate as res judicata as regards the subsequent suit where the prior suit or proceedings were not between the same parties as those in the subsequent suit. (Vide: Secretary of State versus Syed Ahmad Badsha Sahib Bahadur, AIR 1921 Madras 248 Full Bench, Radha Binode Mandal versus Sri Sri Gopal Jiu Thakur and others, AIR 1927 PC 128, Chebrolu Latchayya versus Kucherlapati Venkatapatiraju and others, AIR 1940 Madras 201, Surajpati and others versus Dy. Director of Consolidation Allahabad and others, AIR 1981 Allahabad 265 and Narendra Akash Maharaj Petkar & Anr. versus Shahaji Baburao Petkar & Ors., AIR 2009 Bombay 165 (DB).
44. As regards substantial questions of law framed in both the appeals, even though the learned counsel(s) for the appellants have addressed no arguments, however, even otherwise, I find no substance in the so-called substantial questions of law.
::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 23Questions No.1 and 2.
45. Admittedly, the suit as filed by the plaintiffs/respondents is .
with regard to title and it is more than settled that it is only the Civil Court which has the jurisdiction to grant declaration of the kind as was sought for by the plaintiffs.
Question No.3.
46. Admittedly, it is not in dispute that it was the parties to the lis, who were owners of the land in dispute and as observed earlier, the suit was one for declaration. Therefore, the State Government was neither proper much less a necessary party. Moreover, this plea was not even raised before the learned trial Court wherein the only objection was raised that the other co-sharers have not been impleaded as parties and it was pursuant to the directions passed by this Court in Civil Revision 18 of 1989 titled 'Diwan Chand and others versus Purshotam Singh and others' decided on 29.10.1990 that the other co-sharers were made parties and arrayed as defendants No.33 to 79.
Question No.4.
47. Admittedly, the parties to the lis are co-sharers and are, therefore, considered to be in joint possession unless there is a clear denial or ouster which has not even been proved in this case. No evidence was led by the defendants/appellants to prove that they had ever questioned the title of the plaintiffs/respondents. Moreover, it is not open for the defendants/appellants to raise such a question in view of their having given up their claim qua this issue as is evidently clear from para-35 of the judgment passed by the learned trial Court. Therefore, the suit cannot be held to be time barred.
48. In view of the above discussion, I find no merit in these appeals and the same are accordingly dismissed, leaving the parties to ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 24 bear their own costs. Pending application(s), if any, also stands disposed of.
.
RFA No. 48 of 1999.
49. The instant appeal arises out of the order passed by the learned District Judge on 03.04.1999 whereby the petition filed by the appellants under Section 30 of the Land Acquisition Act for apportionment of the compensation came to be dismissed. It was on the basis of the common judgment rendered by a learned Division Bench of this Court in RFAs No.39, 40 and 74 of 1993 along with Cross Objections No.26/94 and 69/95 that the respondents filed an execution petition before the learned Court below which was registered as Execution No.17 of 1997. The appellants herein admittedly were not parties to any of the proceedings under the Land Acquisition Act and, therefore, filed objections under Section 30 of the Act claiming therein apportionment of the compensation amount on the basis of their having right in the compensation on the basis of the decree passed by the Civil Court. However, it would be noticed that even though right of the appellants was acknowledged by the learned Court below, however, for strange reasons, it rejected the claim of the appellants, as would be evident from a perusal of para-15 of the order which reads thus:-
"15. Since the claim set up on behalf of the petitioners is already being adjudicated upon by the civil Court(s) in the appeals arising out of the aforesaid civil suits filed by them, the present land reference petition U/s 30 of the Act is on the face of it not maintainable. Accordingly, the issue is held in the affirmative."
50. Once, it is not in dispute that the appellants have a declaration in their favour, therefore, they are legitimately entitled to the enhanced amount of compensation and cannot be deprived of the same by ::: Downloaded on - 30/12/2017 23:49:32 :::HCHP 25 resorting to technicalities thereby rendering the judgments in favour of the appellants as otiose.
.
51. The proposition that Rules of Procedure are handmaid of justice and cannot take away the residuary power in Judges to act ex debito justitiae, where otherwise it would be wholly inequitable is by now well founded.
52. In view of the aforesaid discussion, I find merit in this appeal and the same is accordingly allowed and the order passed by the learned District Judge on 03.04.1999 is set aside.
r The learned Court below is directed to release the compensation to the parties in accordance with the judgments and decrees passed by this Court today in the aforesaid Regular Second Appeals No.256 of 1995, 259 and 267 of 2000. Parties are left to bear their own costs. Pending application, if any, also stands disposed of.
Registry is directed to place a copy of this judgment on the files of connected matters.
(Tarlok Singh Chauhan), Judge.
29th December, 2017.
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