Himachal Pradesh High Court
Maru Ram & Another vs Roshan Lal & Others on 4 March, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.275 of 2008 Date of Decision: 4th March, 2017 .
___________________________________________________________ Maru Ram & Another ..... Appellants.
Versus Roshan Lal & others ... Respondents.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
of Whether approved for reporting?1 For the Appellants : Mr. N.K. Thakur, Senior Advocate, with Mr. Divya Raj Singh, Advocate. rt For the Respondents : Mr. Ajay Sharma, Advocate Sandeep Sharma, Judge Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 19.3.2008, passed by learned Additional District Judge, Una, District Una, H.P, in Civil Appeal No.98 of 2005, affirming the judgment and decree dated 29.10.2005, passed by learned Civil Judge (Jr. Division), Court No.1, Amb, District Una, H.P., in Civil Suit No.175-I of 2001, whereby suit for declaration and permanent injunction having been filed by respondent No.1( hereinafter referred to as the plaintiff) was decreed and Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:58:28 :::HCHP
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he was declared to be owner and entitled to possess 1/3rd share in Khasra Nos.4680 and 4681 ( old 3903 and 3904) .
as per copy of Missal Hakiat for the year, 1966-67. Learned trial Court while decreeing the suit of the plaintiff also held the defendants entitled to 2/3rd share as per their entitlement but restrained them from alienating, of encumbering any portion of the suit land beyond their share.
2. rt Briefly stated facts of the case, as emerged from the record are that plaintiff namely Roshan Lal & others filed a suit for declaration and permanent injunction, averring therein that entries qua land measuring 4-15 kanals having khewat No.12min, khatauni No.93, khasra No.4680 (old khasra No.3903) and Khasra No. 4681( old khasra No.3904) as entered in the copy of Missal Hakiat Ishtemal for the year, 1966-67 reflecting the name of predecessor-in-
interest of defendants namely Gundu alias Gandu and Khindu are null and void having no binding effect on the rights of the plaintiff. Plaintiff further averred that aforesaid entry showing predecessor-in-interest of defendants, as named above, as owner have been incorporated in the revenue record in connivance with the revenue staff without ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...3...
notice and knowledge of the plaintiff and as such, they are entitled for injunction restraining the defendants from .
interfering, taking forcible possession, changing the nature and raising any construction over the suit land.
3. As per plaintiff, one Sh. Chuha son of Sh. Kodu i.e. predecessor-in-interest of the parties to the suit was of "Gair Marusi" in respect of the suit land and one other khasra No.4677( Sabka khasra numbers) . As per the rt plaintiff, after the death of Sh. Chuha, the names of his legal representatives were incorporated in the jamabandi for the year, 1952-53. In the year 1966-67, revenue department prepared the revenue record and bifurcated khasra Nos.3903 and 3904, wherein revenue official only recorded the name of Gandu alias Gundu & Khindu alone, whereas Gandu @ Gundu, Khindu and plaintiff were recorded as "Gair Marusi" in the possessory column of the revenue record i.e. jamabandi for the year, 1966-67 qua khasra No.3900.
4. Plaintiff further averred in the plaint that Gundu @ Gandu, Khindu and the plaintiff being legal representatives of Sh. Chuha became "Gair Marusi" after his death and were in joint possession of khasra Nos.3900, ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...4...
3903 and 3904 and as such, entries of the suit land exclusively in the name of Gandu alias Gundu and Khindu .
in the possessory column of revenue record is null and void.
Plaintiff further averred in the plaint that predecessor-in-
interest of defendant i.e. Khindu and his sons had earlier filed suit for declaration regarding khasra No.4677, khewat of No.233 and khatauni No.390. Plaintiff further claimed that parties are in joint possession of the suit land and with the operation rt of H.P. Tenancy and Land (hereinafter referred to as the Act), they have become Reforms Act joint owner in possession of the suit land. In the aforesaid back ground, plaintiff sought decree for declaration to the effect that entries of land measuring 4 kanals 15 marlas bearing khewat No.12min, khatauni No.93 and khasra Nos.4680 and 4681( old khasra Nos.3903 and 3904) as entered in the copy of Missal Hakiat Ishetmal for the year 1966-67, situated at village Nakroh, Tehsil Amb, District Una, H.P., in the name of predecessor-in-interest of defendants i.e Gundu alias Gandu and Khindu are null and void and not binding upon the right of the plaintiff. Apart from above, plaintiff also sought decree for permanent injunction restraining the defendants from interfering, ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...5...
taking forcible possession, changing the nature of the suit land and raising any sort of construction over the suit land .
in any manner during the pendency of the suit.
5. Defendant No.1 by way of separate written statement refuted the aforesaid claim having been put forth on behalf of the plaintiff on various grounds including of limitation, estoppels, non-joiner of necessary parties, jurisdiction and maintainability. On merits, defendant No.1 rt specifically averred that the plaintiff is neither over nor in possession of the suit land. As per defendant No.1, land measuring 2 kanals 6 marlas comprised in khasra No.4677 was earlier under the Tenancy of plaintiff, Khindu and Gundu and they have become owner in possession of above khasra numbers in view of the provisions of H.P. Tenancy and Land Reforms Act. Defendant No.1 further claimed that the estate of Gundu was succeeded by Maru and Kashmir Singh, defendants No.1 and 2 and a decree in this regard was passed by learned Sub-Judge 1st Class, Court No.1, Amb, declaring the right of Khindu, Maru and Kashmir Singh sons of Sh. Kindu over these khasra numbers.
Defendant No.1 further alleged that plaintiff or Sh. Chuha were not "Gair Marusi" over khasra Nos.3903 and 3904( ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...6...
new 4680 and 4681), whereas the same is in the possession of defendants No.1 and 2 as well as other successors-in-
.
interest of Sh. Khindu since the time immemorial as non-
occupancy tenant and now by operation of law they have become absolute owners. Defendant No.1 further claimed in the written statement that during the consolidation/ of settlement proceedings, the possession of the defendant was proved over the suit land and accordingly entries were made rt in the revenue record. Defendant termed revenue entries as recorded in the revenue record to be perfectly right according to the factual position on the spot and claimed that plaintiff or his predecessor-in-interest has no interest, whatsoever, in the suit land. Though, defendant admitted the factum with regard to filing of suit regarding khasra No.4677.
6. Defendants No. 2 to 5 by way of separate written statement also denied the possession and any right of the plaintiff over the suit land.
7. By way of replication, plaintiff while denying the allegations/averments made in the written statement, reaffirmed and reasserted the stand taken in the plaint.
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8. Learned trial Court on the basis of aforesaid pleadings, framed the following issues:-
.
1. Whether plaintiff is owner in possession of the suit land along with defendants as alleged? OPP.
2. Whether revenue entries in the name of predecessor of defendants are null and void as alleged? OPP.
3. Whether predecessor of plaintiffs was tenant over the suit land as alleged?
of OPP.
4. Whether suit is barred by limitation?OPD.
5. Whether plaintiff is stopped by his act rt and conduct to file the suit? OPD.
6. Whether suit is bad for non-joinder of necessary parties? OPD.,
7. Whether this Court has no jurisdiction to try the suit? OPD.
8. Whether suit is not maintainable? OPD.
9. Whether plaintiff is entitled for the relief of permanent injunction as alleged? OPP.
10. Relief
9. Subsequently, learned trial Court on the basis of the material adduced on record by the respective parties, decreed the suit of the plaintiff (respondent herein) for declaration and declared him to be owner and entitled to possess 1/3rd share in khasra Nos. 4680 and 4681( old 3903 and 3904) as per Missal Hakiat for the year, 1966-67 now forming khasra No.1278, 1279, 1291,1297 and 1290 as per jamabandi for the year, 1999-2000. Learned trial Court ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...8...
while decreeing the suit of the plaintiff also held the defendants entitled to 2/3rd share as per their entitlement in .
the suit land but restrained them from alienating, encumbering any portion of the suit land beyond their share.
10. Feeling aggrieved and dissatisfied with the of impugned judgment and decree dated 29.10.2005, passed by learned trial Court, appellants/defendants preferred an rt appeal under Section 96 CPC in the Court of learned Additional District Judge, Una, H.P, which came to be registered as Civil Appeal No.98 of 2005. However, fact remains that aforesaid appeal was dismissed, as a result of which, judgment and decree passed by the learned trial Court came to be upheld. In the aforesaid background, appellants/defendants preferred Regular Second Appeal before this Court, praying therein for dismissal of the suit filed by the plaintiff ( respondent herein) after setting-aside and quashing the judgments and decrees passed by the learned Courts below.
11. This Court vide order dated 11.08.2008, admitted the instant Regular Second Appeal on the following substantial questions of law:-
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"(1) Whether claim of the plaintiff is barred by explanation-4 to Section 11 of the Code of Civil Procedure when such claim was not put forth for its adjudication in the .
previous proceedings between the same parties where such question could be determined?
(2) Whether an admission made by the plaintiff in the previous litigation between the parties is binding on the interests of the plaintiff and whether he can be allowed to resile from the same in the of present proceedings?
12. Mr. N.K.Thakur, learned Senior Advocate duly rt assisted by Mr. Divya Raj Singh, Advocate, representing the appellants, vehemently argued that the impugned judgment and decree passed by the Courts below are not sustainable in the eyes of law as the same are not based upon the correct appreciation of the evidence adduced on record by the respective parties and as such, same deserve to be quashed and set-aside. Mr. Thakur, while referring to the evidence led on record by the respective parties, forcibly contended that Courts below have failed to comprehend the facts as well as evidence led on record by the respective parties in its right perspective while passing the impugned judgment, as a result of which, wrong findings have come on record to the detriment of the present appellants.
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13. Mr. Ajay Sharma, learned counsel representing the respondents, supported the impugned judgments and .
decrees passed by the learned Courts below. Mr. Sharma, while referring to the impugned judgment having been passed by the learned first Appellate Court, strenuously argued that the same is based upon the correct appreciation of of the evidence led on record by the respective parties and as such, there is no scope of interference, whatsoever, of rt this Court, especially in view of the concurrent findings of fact and law recorded by the Courts below. While concluding his arguments, Mr. Sharma forcibly contended that close scrutiny of the judgment and decree having been passed by the Courts below clearly suggest that each and every aspect of the matter have been dealt with very meticulously by the Courts below and there is no scope of interference, especially in view of concurrent findings of fact and law recorded by both the Courts below. He also stated that this Court has very limited jurisdiction to re-appreciate the evidence, especially in view of the concurrent findings recorded by the Courts below. In this regard, to substantiate his aforesaid plea, he placed reliance upon the judgment ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...11...
passed by Hon' ble Apex Court in Laxmidevamma and Others Vs. Ranganath and Others, (2015) 4 SCC 264.
.
14. I have heard learned counsel for the parties and have gone through the record of the case.
15. While exploring answer to the substantial questions of law framed by this Court, this Court perused of the pleadings as well as evidence led on record by the respective parties in support of their contentions. Perusal of rt Ex.D-1 i.e. judgment and decree dated 29.4.1994, passed by learned Sub Judge 1st Class Court No.1, Amb, District Una, H.P, in Civil Suit No.9 of 1989, clearly suggests that same was filed by Khindu son of Sh. Chuha, Maru Ram and Kashmir Singh sons of Sh. Khindu ( appellants/ defendants herein) against Sh. Roshan Lal plaintiff for declaration with respect to suit land comprised in khewat No.233, khatauni No.390, khasra No.4677 area measuring 2 kanals 6 marlas situated at village Nakroh, Tehsil Amb, District Una, H.P., on the ground that the suit land earlier was under the tenancy of Khindu (plaintiff No.1 in civil suit No.9 of 1989), defendant and one Khindu (plaintiff in the present proceedings) and they become owner in possession of the suit land after coming to the operation of H.P. Tenancy and ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...12...
Land Reforms Act. In the aforesaid background, plaintiff (defendant herein) claimed that Sh. Khindu was succeeded .
by plaintiffs No. 2 and 3 namely Maru Ram and Kashmir Singh and as such, they become owner in possession to the extent of 2/3rd share with defendant (Roshan Lal) to the extent of 1/3rd share. Plaintiff in that suit also claimed that of defendant in connivance with the revenue field staff got revenue entry changed and mutation No.2889 was rt sanctioned in his favour qua the suit land exclusively at the back of the plaintiffs and as such, same be declared null and void.
16. Careful perusal of the judgment passed in the suit referred above, nowhere suggest that the dispute, if any, at that relevant time between the parties was with regard to khasra Nos .4680(old 3903) and 4681(old 3904), which were admittedly in existence at that relevant time as emerge from the record. Moreover, civil Suit No.9 of 1989 was filed by Sh. Maru Ram and Sh. Kashmir Singh i.e. appellants/defendants alongwith one Khindu son of Sh.
Chuha.
17. At the cost of repetition, it may be noticed that the suit mentioned above was specifically with regard to ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...13...
khasra No.4677 and defendant therein namely Roshan Lal while refuting the claim of the plaintiffs in that suit claimed .
that there were earlier three khasra numbers comprising of khasra Nos. 3900, 3903 and 3904, measuring 7 kanals 1 marla under the tenancy of plaintiff No.1, father of plaintiffs No. 2 and 3 and defendant himself on payment of rent and of therefore, for the convenience of cultivation they made family adjustment, as a result of which, land comprising of rt old khasra Nos. 3903 and 3904, now denoted by new khasra Nos.4680 and 4681, measuring 4 kanals 15 marlas fell in the share of plaintiff No.1 and khindu , the father of plaintiffs No.2 and 3, whereas the land denoted by khasra No.3900, fell into the share of defendant and accordingly entries were to be made in the revenue record. Defendant further claimed that entry in the name of plaintiffs in that suit qua the land comprising of old khasra Nos. 3903 and 3904 were changed, but somehow the entry of the suit land denoted old khasra No.3900( new 4677) could not be changed, which was lateron corrected by the Naib Tehsildar, Amb in the presence of the plaintiffs. In the aforesaid background, defendant in that suit justified the entry made in the revenue record in their name qua land bearing khasra ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...14...
No.4677, however fact remains that learned trial Court decreed the suit of plaintiffs (appellants/defendants herein) .
and declared them to be joint owner in possession of the suit land to the extent of 2/3rd share and defendant to the extent of 1/3rd share.
18. Though, in the aforesaid proceedings, defendant of Roshan Lal (plaintiff herein) had set up a case that as per family adjustment arrived between the parties new khasra rt Nos.4680 and 4681 measuring 4 kanals 15 marlas fell into the share of plaintiff (defendants herein), but no specific findings qua the same with regard to ownership and possession of appellants/plaintiffs (plaintiffs in that suit) were returned by the Court.
19. After careful perusal of Ex.D-1 i.e. copy of judgment dated 29.4.1994, passed in civil suit No.9 of 1989, this Court sees no substantial force in the argument having been made by the learned counsel for the plaintiff that claim of the plaintiff is barred by explanation -IV to section 11 of CPC because he had not put forth the claim as being projected in the present case for adjudication in the previous proceedings pending before the learned Sub Judge 1st Class Court No.1, Amb, which was admittedly between ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...15...
the same parties qua the same cause of action. Civil Suit No.9 of 1989 was filed by defendant herein against the .
plaintiff herein seeking specific declaration with regard to land comprising of khasra No.4677 and there was no claim, if any, of the appellants/defendants in that suit qua the suit land bearing khasra No.4680 and 4681, which is subject of matter of the present case.
20. Moreover, Sh. Roshan Lal, who happened to be rt plaintiff in the aforesaid suit, while contesting the aforesaid suit specifically mentioned with regard to khasra Nos. 4680 and 4681, measuring 4 kanals and 15 marals. But since suit filed by the plaintiffs in that case was with regard to khasra No.4677, learned Court confined its finding qua the same and held the plaintiffs as well as defendant in that case joint owner in possession of the suit land to the extent of 2/3rd share and 1/3rd share respectively.
21. It would be profitable to reproduce explanation IV to section 11 of CPC herein:
"Explanation-IV:- Any matter which might and ought to have been made ground for defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Section -11. Res Judicata:- No Court shall try any suit or issue in which the matter directly ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...16...
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".
22. As per explanation IV to Section 11 any ground for defence or attack in such former suit shall be deemed to of have been a matter directly and substantially in issue in such suit. But in the present suit, said Roshan Lal (plaintiff rt herein) while specifically contesting the claim of the plaintiffs in that suit contended that the suit land denoted by old khasra No.3900 ( new 4677) fell into his share as per family adjustment, whereas old khasra Nos. 3903 and 3904 fell into the share of plaintiff and as such, entries were to be made in the revenue record accordingly.
23. Moreover, appellants/defendants while contesting the instant suit having been filed by the plaintiff herein with regard to khasra No.4680 and 4681, nowhere contended that controversy qua the same stand settled with the findings returned by the learned Sub-Judge 1st class in Civil Suit No.9 of 1998, rather appellants/defendants merely admitted the factum of suit filed by them earlier against Sh.
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Roshan Lal (plaintiff herein). Perusal of aforesaid judgment Ex.D-1, nowhere suggests that issue, if any, qua the suit .
land bearing khasra Nos.4680 and 4681 was directly or substantially in issue in formal suit i.e. civil suit No.9 of 1989 between the parties. Rather, dispute was with regard to khasra No.4677 and defendant in that suit while of opposing the claim of plaintiff submitted that he is owner in possession of suit land and comprising khasra No.4677 on rt the basis of family adjustment. But admittedly, learned trial Court did not return any findings qua khasra Nos. 4680 and 4681, which lateron came to be subject matter of the instant suit.
24. Subsequent civil suit No.175-I of 2001 i.e. subject matter of the present proceedings is/was with regard to khasra Nos. 4680 and 4681, wherein plaintiff sought declaration that entry recorded in Missal Hakiat Istemal for the year, 1966-67 reflecting the name of predecessor-in-interest of defendants namely Gundu alias Gandu and Khindu be declared null and void having no binding effect on the rights of plaintiff. Plaintiff in this suit has specifically stated that predecessor-in-interest of parties to the suit i.e. one Chuha son of Kodu was "Gair Marusi" in ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...18...
respect of the suit land and one other khasra No.4677( Sabka khasra Nos. 3900, 3903 and 3904) as reflected in the .
jamabandi for the year, 1943-44. As per plaintiff, Sh.
Chuha died leaving behind his legal representatives plaintiff as well as predecessor-in-interest of defendants. Revenue record placed on record by the parties further suggest that of plaintiff and predecessor-in-interest of the defendants were recorded in the joint possession in respect of khasra rt No.3900 and they became legal representatives of Sh.
Chuha became "Gair Marusi" after the death of their predecessor-in-interest and were in joint possession of land comprised in khasra Nos.3900, 3903 and 3904 i.e. suit land.
25. Interestingly, while contesting the suit having been filed by the plaintiffs, defendants stated that they are coming into possession of the suit land as their predecessor-
in-interest were non-occupancy tenant and now by operation of H.P. Tenancy and Land Reforms Act, they have become owners free from all encumbrance, but strangely there is no assertion, if any, with regard to admission, if any, made by plaintiff in civil suit No.9 of 1998. Perusal of document Ex.P-1 i.e. jamabandi for the year, 1943-44, ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...19...
clearly suggests that predecessor-in-interest of parties were recorded as "Gair Marusi" over khasra Nos.3900, 3903 and .
3904. Perusal of Ex.D-3 i.e. plaint filed by the predecessor-
in-interest of the plaintiffs also establish on record that appellants/defendants (plaintiffs therein) admitted themselves to be owner in possession to the extent of of 2/3rds share qua khasra No.3900 (new 4677). As far as admission, if any, made by the plaintiff in the previous rt litigation is concerned, it may be observed that the plaintiff( defendant in that proceedings) while refuting the claim of the defendants( plaintiff in that proceedings) only stated that three khasra numbers comprising 3900, 3903 and 3904, measuring 7 kanal 1 marla were under the tenancy of predecessor-in-interest of the parties on the payment of rent and for the convenience in cultivation of the parties, they made family adjustment, as a result of which, land comprising khasra Nos.3903 and 3904( new 4680 and 4681) measuring 4 kanals 15 marlas fell into the share of plaintiff No.1, whereas suit land denoted by old khasra No.3900 fell into the share of defendant, but admittedly there is no admission, if any, on the part of the plaintiff( defendant in that proceedings) that appellants/defendants ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...20...
are owner in possession of the suit land bearing khasra Nos. 4680 and 4681 exclusively. In other proceedings, .
undoubtedly, plaintiffs claimed themselves to be owner of khasra No.4677 as per some family adjustment but as a matter of fact they were only held to be in joint ownership of the appellant/defendant qua khasra No.4677 to the extent of of 1/3rd share. Hence, plea , if any, made in Civil Suit No.9 of 1989 qua khasra Nos. 4680 and 4681 cannot be termed rt to be admission on behalf of the plaintiff with regard to ownership and possession of khasra Nos.4680 and 4681, rather close scrutiny of the pleadings as well as evidence led on record by the respective parties clearly suggest that the suit land as well as khasra No.4677, which was subject matter of earlier suit bearing No.9 of 1989 was possessed by the predecessor-in-interest of the parties as " Gair Marusi" and after his death name of plaintiff as well as defendant came to be recorded in the revenue record.
Lateron parties became absolute owner with operation of H.P. Tenancy and Land Reforms Act, meaning thereby, parties being legal representatives of Sh. Chuha, who happened to be "Gair Marusi", were required to be recorded ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...21...
in the revenue record in equal share. The substantial questions of law are answered accordingly.
.
26. This Court is fully satisfied that both the Courts below have very meticulously dealt with each and every aspect of the matter and this Court sees no perversity in the impugned judgments, accordingly, there is no scope of of interference, whatsoever, in the present matter. Since, both the Courts below have returned concurrent findings, which rt otherwise appears to be based upon proper appreciation of evidence, this Court has very limited jurisdiction/scope to interfere in the matter. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by the Hon' ble Apex Court in Laxmidevamma's case supra, wherein the Court has held as under:
"16. Based on oral and documentary evidence, both the Courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re- appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact ::: Downloaded on - 15/04/2017 21:58:28 :::HCHP ...22...
cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the .
concurrent findings recorded by the Courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
27. Consequently, in view of the detailed discussion made hereinabove, the present appeal fails and same is of dismissed.
Interim directions, if any, are vacated. All miscellaneous applications are disposed of.
rt
(Sandeep Sharma )
4th March, 2017 Judge
(shankar)
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