Himachal Pradesh High Court
Union Of India And Another vs Balak Ram And Others on 16 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
R.S.A. No. 630 of 2005
Date of decision: 16.7.2019.
Union of India and another ...Appellants.
Versus
Balak Ram and others ..Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes
For the Appellants : Mr. Shashi Shirshoo, Central Government
Counsel.
For the Respondents : Mr. R.K. Bawa, Senior Advocate, with Mr.
Prashant Kumar Sharma, Advocate, for
respondents No.1 to 5.
Mr. Bhupinder Thakur and Ms. Svaneel
Jaswal, Dy. A.Gs., and Mr. Ram Lal Thakur,
Asstt. A.G., for the State.
Tarlok Singh Chauhan, Judge (Oral)
Record reveals that the appeal came to be simply admitted without formulating any specific substantial question of law as is evident from the order dated 15.12.2005, therefore, the appeal is now formally admitted on the following substantial question of law:
1Whether reporters of Local Papers may be allowed to see the Judgment ?yes ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 2 "Whether the findings recorded by the learned first appellate Court are perverse inasmuch as it has erred in misconstruing .
and misinterpreting the pleadings as also the oral as well as documentary evidence on record?"
2. With the consent of the parties, the appeal is heard today.
3. In order to appreciate the controversy in question, it would be first refer to the pleadings of the case.
4. The parties shall be referred to as the 'plaintiff' and the 'defendants'.
5. Brief facts of the case as set-out in the plaint are that the plaintiff and defendant No.3 were the co-owners of the land comprised in Khasra No. 116 measuring 6 bighas and 4 biswas, situated in Chak Naleha, Pargna Khagalad, Tehsil Theog, in which defendant No.3 was having the share of only 7 biswas. In the year 1987, defendant No.3 applied for the exchange of the land to the extent of 1 bigha and 7 biswas out of the suit land, though he was having the share of only 7 biswas, that too, without the consent and permission of the plaintiff and other recorded co-owners. The exchange was allowed by the Deputy Commissioner, Shimla vide its order dated 14.7.1987 which was illegal and not binding upon the parties. Consequently, the mutation attested on the basis of such order on 22.2.1988 in favour of defendant No.2 and Navodaya Vidyalaya was also wrong as no possession was ever taken from the plaintiff so as to ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 3 deliver in favour of the aforesaid defendants. It was averred that the cause of action arose few days ago when defendants No.1 and 2 threatened to .
take the possession and the same was continued.
6. In the written statement filed by defendants No.1 and 2, preliminary objections regarding maintainability, valuation, cause of action, suit being time barred and estoppel were raised. On merits, it was contended that only 0-2 biswas of land of the plaintiff was acquired for the construction of Navodaya Vidyalaya complex in the public interest. It was averred that defendant No.3 was the real brother of the plaintiff, who offered 1-10 bighas of land comprised in Khasra No. 116/1 situated in Village Naleha for exchange with Government land comprised in Khasra Nos. 40 and 41 measuring 0-13 biswas situated in Chak Batog and Khasra No. 172/1 measuring 0-17 biswas situated in village Naleha, total 1-10 bighas on his own behalf as well as co-sharers and accepted the land of the State of Himachal Pradesh for himself as well as for co-sharers as he was representing all of them. Thereafter, the plaintiff as well as other co-
sharers never objected to this transaction of exchange for a pretty long time and this transaction of exchange has been acted upon between the parties and was thus binding on the plaintiff.
7. The plaintiff filed replication to the written statement filed on behalf of defendants No.1 and 2 wherein the averments made in the corresponding paras of the plaint were re-asserted and re-affirmed and ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 4 those of the written statement which were contrary to the plaint were denied. It was specifically denied that defendant No.3 while moving an .
application for exchange of the land had acted on his behalf or represented all the other co-sharers.
8. From the pleadings of the parties, the learned trial Court on 27.11.1998 framed the following issues:
1. Whether order dated 14.7.87 of the Deputy Commissioner, Shimla is wrong and illegal as prayed? OPP
2. Whether the plaintiff is entitled for the relief of declaration as prayed? OPP
3. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed? OPP
4. Whether the suit is not maintainable? OPD
5. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP
6. Whether the suit is within limitation period? OPP
7. Whether the plaintiff is estopped from filing this suit by his own acts, conducts and acquiescences? OPD
8. Relief.
9. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit. However, in an appeal preferred by the plaintiff, the judgment and decree passed by the learned trial Court came to be set-aside, constraining the defendants/appellants to file the instant appeal.
I have heard learned counsel for the parties and gone through the material placed on record carefully.::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 5
10. At the outset, it needs to be noticed that the learned trial Court dismissed the suit filed by the plaintiff mainly on the ground that the same .
was not within limitation. However, it would be noticed that there is no dispute that defendant No.3 was only having a minuscule share in the joint property to the extent of only 7 biswas in the suit land and was therefore not legally competent to have applied for exchange of the land with the State of Himachal Pradesh to the extent of 1-7 bighas unless and until he was specifically authorised to do so by the other co-owners. It was for the defendants to have proved the fact that the exchange as applied for by defendant No.3 was not only on his behalf but was for and on behalf of all the co-owners including the plaintiff. This is so because it is the defendants, who were the custodian of the record. At best, defendant No.3 could have applied for exchange to the extent of his share i.e. 7 biswas only.
11. There is nothing on record to prove that the plaintiff was dispossessed from the suit land at any point of time prior to filing of the suit, therefore, could have been instituted the suit only when on the basis of the order of Deputy Commissioner, defendants No.1 and 2 threatened to take the possession and, therefore, under no circumstance, could the suit have been held to be time barred.
12. This Court cannot be un-mindful of the fact that the State being a public authority has been prohibited from raising such a plea, unless the claim of the plaintiff is not well founded and by reason of delay in filing a ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 6 suit, the evidence for the purpose of resisting such a claim has become un- available.
.
13. In Urban Improvement Trust, Bikaner vs. Mohan Lal (2010) 1 SCC 512, it was observed that it is a matter of concern that such frivolous and unjust litigations by Governments and statutory authorities are on the increase. It was further observed that statutory authorities which existed for to discharge statutory functions in public interest should be responsible litigants and cannot raise frivolous and unjust objections nor act in a callous and high-handed manner. It would be apposite to refer to the relevant observations, which reads thus:
"5. It is a matter of concern that such frivolous and unjust litigation by governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They can not behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.
6. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf.
7. In Dilbagh Rai Jarry vs. Union of India [1974 (3) SCC 554] where the Hon'ble Supreme Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court (P.P. Abubacker vs. Union of India, AIR 1972 Ker 103, AIR pp. 107-08, para 5)]:(SCC p.562, para 25) ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 7 "25.......'5. ....."The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with .
private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.' "
8. In Madras Port Trust v. Hymanshu International, (1979) 4 SCC 176 the Hon'ble Supreme Court held: (SCC p. 177, para 2):
"2. .... It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well- founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable...."
9. In a three Judge Bench judgment of Bhag Singh & Ors. v. Union Territory of Chandigarh through LAC, Chandigarh [(1985) 3 SCC 737]: the Hon'ble Supreme Court held: (SCC p. 741, para 3) ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 8 "3... The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered .
without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen."
10. Unwarranted litigation by governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:
(i) All claims against the government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.
(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secures a decision.
The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers in charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to courts and Tribunals."
14. Similar reiteration of law can be found in a fairly recent judgment of the Hon'ble Supreme Court in Rajendra Shankar Shukla and others vs. State of Chhattisgarh and others (2015) 10 SCC 400, wherein again while referring to the earlier decision in Hymanshu's case (supra), the Hon'ble Supreme Court held in para 32 as under:
"32. Further, this Court has frowned upon the practice of the Government to raise technical pleas to defeat the rights of the citizens in Madras Port Trust vs. Hymanshu International (1979) 4 SCC 176, wherein it was opined that it is about time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 9 of citizens and do what is fair and just to the citizens. Para 2 from the said case reads thus :- (SCC p.177) .
"2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by Section 110 of the Madras Port Trust Act (2 of 1905). The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the. purpose of resisting such a claim has become unavailable. Here, it js obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Assistant Collector of Customs and hence in the exercise of our discretion under Article 136 of the Constitution, we do not see any reason why we should proceed to hear this appeal and adjudicate upon the plea of the appellant based on Section 110 of the Madras Port Trust Act (2 of 1905)."
15. As would be evident from the aforesaid exposition of law, even though the government and public authority should not be relying upon technical pleas, but if such plea is taken up, the Court is bound to decide and if the plea is well founded, it has to be upheld by the Court.
16. The defendants No.1 and 2 having failed to prove that the application submitted by defendant No.3 for exchange of the land was for and on behalf of all the co-sharers/co-owners including the plaintiff cannot be heard to complain against the judgment and decree pased by the learned first appellate Court as it was incumbent upon them to have proved this fact.
::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 1017. Apart from that, it would be noticed that even the Deputy Commissioner in his order or exchange dated 14.7.1987 has clearly held .
that defendant No.3 alone could not have offered the land for exchange, yet he proceeded to grant the exchange, that too, for reasons which are not only absurd but could not even be supported by defendants No.1 and 2 themselves. This would be clearly evident from the order of exchange which is reproduced verbatim hereinunder:
"Before Sh. J.P. Negi, I.A.S., Deputy Commissioner, Shimla.
Case No. Date of institution Date of decision
11/3 of 87 4/6/87 14.7.87.
Application of Shri Jeet Ram S/o Shambu Ram, R/o Village Deorighat, Pargana Khagalad, Tehsil Theog, under Rule 27 of H.P. Nautor Rules, 1968.
ORDER:
This is an application of Sh. Jeet Ram S/o Sh. Shambu Ram, resident of Village Deorighat, Tehsil Theog for grant of exchange of Govt. land measuring 1-10 bighas comprising Khasra Nos. 40 and 41 (13 biswas) in village Nalha with his private land measuring 1-10 bigha comprised in Khasra No. 116/1 situated in village Neleha, Tehsil Theog.
The brief facts of the case are that the land of the applicant is required for the construction of Navodaya School Complex at Theog (Deorighat) and the applicant has applied for grant of exchange of Govt. land in lieu thereof. The Gram Panchayat concerned has no objection to the grant of this exchange. The land sought in ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 11 exchange is devoid of forest growth as reported by the Sub Divisional Officer (C), Theog and is not a forest land as per .
provisions of Forest Conservation Act, 1980. The market price of private land comes to Rs.7,500/- and that of Govt. land comes to Rs.6,500/-. I find from a perusal of parcha jamabandi attached with the file that the land being given in exchange is in the joint holding and the applicant alone can not give this land in exchange. I also find that the private land is mortgaged with the State Bank of Theog and Shimla. Since the land of the applicant is required for the public purposes, he deserves to be granted land in lieu thereof. (Emphasis supplied).
In view of above, I accept this application and allow the exchange in favour of all the co-sharers. Land Revenue be changed accordingly. The charge of the Bank on khasra No. 116/1 be vacated and created on the land granted to the applicants in exchange.
Shimla-1 DEPUTY COMMISSIONER, SHIMLA."
14th July, 1987.
18. In the given circumstances, there is no illegality much less perversity in the order passed by learned first appellate Court whereby it held the aforesaid order of the Deputy Commissioner to be palpably illegal.
19. Moreover, once the order is proved to have been passed behind the back of the plaintiff, obviously then, the order would not be binding upon the plaintiff and was not required to be assailed immediately ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 12 on coming to know about the same and could have conveniently filed a suit when there was an invasion and actual threat of his rights.
.
20. In taking this view, I am supported by the judgment of this Court in Parkasho Devi and others vs. Basheshar Singh alias Sher Singh and another 2003 (2) S.L.J. 161, wherein after referring to the judgments of the Lahore High Court, it was observed as under:
"If a plaintiff is in possession of enjoyment of the property in suit he is not obliged to sue for a declaration of title on the first or each succeeding denial of his title by the defendant. He may look upon each denial with complancy or at his option may institute a suit to falsify the assertions of the other side. But when he finds that his rights are being actually jeopardized by the action or assertion of the defendant, then he must take proceedings within six years from the date of such actions or assertions: AIR 1922 Lah, 94, AIR 1925 Lah. 391 and 140 P.R. 1907, Dist."
21. It would be evidently clear from the aforesaid exposition of law that a person in possession is not obliged to sue for a declaration of title on mere denial thereof by the other party unless the action of the offending party had actually jeopardized the rights of the person in possession. The ratio laid down therein applies on all fours to the present case as the assertion of the plaintiff being in possession is not specifically disputed and denied by the defendants, therefore, mere attestation of mutation, that too, ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 13 on the basis of the order of the Deputy Commissioner, Shimla does not effect the rights of the plaintiff in any manner qua the suit land.
.
22. It is otherwise more than settled that mutation confers no title and cannot be made the basis or foundation of title as the same are only for fiscal purpose. It is settled that mutation entries only enable the State to collect revenues from the persons in possession and enjoyment of the property and the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. (Refer: Sankalchan Jaychandbhai Patel and others vs. Vithalbhai Jaychandbhai Patel and others (1996) 6 SCC 433).
23. This authority, in turn, was considered by this Court in Param Dev and others vs. State of Himachal Pradesh and others 2014 (2) Shim.L.C. 928 : Param Dev and others vs. State of H.P. and others 2014 (1) Latest HLJ (HP) 440, wherein it was observed as under:
"7. It is well settled law that mutation does not confer any title.
The mutation proceedings are summary in nature and are only for fiscal purpose to determine the land revenue and cannot be considered to be evidence about title. The Hon'ble Supreme Court in Sankalchan Jaychandbhai Patel and others vs. Vithalbhai Jaychandbhai Patel and others (1996) 6 SCC 433 held as under:-
" Mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and the right, title and interest as to the property should be established dehors the entries. Entries are only ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 14 one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein"
(Para 7).
.
8. In Smt. Sawarni vs. Smt. Inder kaur and others AIR 1996 SC 2823, the Hon'ble Supreme Court held as under:-
"7. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment."
24. Similar reiteration of law can thereafter be found in Rameshwar Dass (deceased) through his Lrs :Subhash Jain and others vs. Dayawanti (deceased) through her LRS: Manoj Bansal and others, 2016 (5) ILR (HP), 847.
25. It is not always safe to rely upon revenue records in cases like the instant one. The Hon'ble Supreme Court in Baleshwar Tewari (dead) by LRs. and others vs. Sheo Jatan Tiwary and others (1997) 5 SCC 112 held as follows:-
"16. Under these circumstances, even if any enquiry was conducted unless the appellant is given notice and an opportunity to adduce the evidence to establish his right in the enquiry made, the finding generally does not bind him. Entries in revenue records is the paradise of the patwari and the tiller of the soil is rarely concerned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with entries. It is common knowledge in rural India that a raiyat always regards the lands he ploughs, as his dominion and generally obeys, with moral fiber the command of the intermediary so long as his possession is not ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP 15 disturbed. Therefore, creation of records is a camouflage to defeat just and legal right or claim and interest of the raiyat, the tiller of the soil on .
whom the Act confers title to the land he tills."
26. Thus, what follows from the aforesaid exposition of law is that no benefit can be gathered by the defendants on account of attestation of mutation in their favour qua the land so exchanged.
27. In view of the aforesaid discussion, it cannot be held that the findings recorded by the learned first Appellate Court are perverse being based on misconstruction or misinterpretation of the pleadings or the oral as well as documentary evidence available on record.
The substantial question of law is answered accordingly.
28. Consequently, there is no merit in this appeal and the same is accordingly dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs.
( Tarlok Singh Chauhan ) 16th July, 2019. Judge (GR) ::: Downloaded on - 29/09/2019 00:50:46 :::HCHP