IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA Nos.154 of 2009 and 151 of 2009. Judgment Reserved on: 23.06.2011 Date of decision: 21.09.2011 1. RSA No.154 of 2009. Chaman Lal & Others … …Appellants Versus Sant Ram & Others … …Respondents 2. RSA No.151 of 2009. Subhash Chand & Others … …Appellants Versus Sant Ram & Another … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. RSA Nos.154 and 151 of 2009 For the Appellant(s): Mr.Sanjeev Kuthiala, Advocate. For the Respondent: Respondent Sant Ram in person. Dev Darshan Sud,J. Two appeals, Shakuntla Devi vs. Sant Ram and Others and Subhash Chand vs. Sant Ram and Others were decided by the learned District Judge, Solan, by a common judgment. Against both these appeals, two separate appeals being RSA No.154 of 2009, titled: Chaman Lal vs. Sant Ram and Others and RSA No.151 of 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 2009, titled: Subhash Chand and Another vs. Sant Ram and Another have been instituted in this Court. 2. RSA No.154 of 2009 has been preferred by the plaintiff against the concurrent findings of the two Courts below dismissing the suit for declaration with consequential relief of permanent prohibitory injunction for the suit property as described in the plaint. 3. Before adverting to the facts of the case, I must express my amazement in the manner in which both the parties have been litigating with tenacity, despite the fact that the origin of the dispute between them dates back to the year 1950 with litigation between the predecessors-in-interest of the parties, through whom they claim possessory rights. Prior to the present appeal, before noticing the litigation between the parties, I also note that two second appeals with respect to the same property being RSA No.141 of 2007, titled: Krishna Devi and Another vs. Sant Ram & Another and RSA No.537 of 2007, titled: Sant Ram vs. Shakuntla, were filed in this Court by the parties to the present appeal. Both these appeals were remanded by this Court to the learned appellate Court for the reasons that conflicting decrees had been passed by the Court qua the same property because of the fact that in one appeal learned District Judge had granted a decree declaring a previous judgment, passed in favour of respondent Sant Ram, as not being binding on the 3 interest of the plaintiff and thereby declaring her to be the owner of the suit property reversing the judgment and decree of the trial Court which had dismissed her suit. With respect to the same property another suit was instituted by Sant Ram praying for recovery of damages/use and occupation charges which suit was decreed against Smt.Krishna. The trial Court had decreed this suit and the learned appellate Court had upheld the decision, holding that Sant Ram, respondent, was entitled to the use and occupation charges. Noticing the conflict interse the judgments with respect to the same property a direction in both the appeals was issued that both these appeals be decided together. Having said so, I now advert to the dispute of the present case. 4. The plaintiff instituted a suit for declaration with consequential relief of permanent prohibitory injunction on the ground that she is a proprietor and Khewatdar of village Nawan Graon, Pargana Plassi, Tehsil Nalagarh, District Solan and the subject matter of the suit was described as follows:- “(a) A residential house alongwith Courtyard situated over the Abadi-deh bearing Khasra No.706(14b-10b) of village Nawangraon, Pargana Plassi, Tehsil Nalagarh, (H.P.) bounded as under:- North House of Sudarshan Kumar S/o Ram Gopal S/o Mansha Ram. South Vacant place and street. 4 East Gair Mumkin Bhawara, Khasra No.696. West Dilapidated houses of defendant No.1 Sant Ram. as shown with the red ink within points A, B, C, D, E in the Annexure-PA, total area 1224 Sq.feet including the area of Court- yard. (b) A residential house also situated over Abadi-deh of village Nawan Graon, bearing Khasra No.706 bounded as under:- North A small vacant portion adjacent to the suit property mentioned above in sub-para(a). South Public Street. East Gair Mumkin Bhawara, Khasra No.696. West Vacant space used as street and a public well. as shown with the red ink within points F,G,H,K, in the Annexure-PA, total area 312 Sq.feet. (c) Gair Mumkin Bhawara measuring 0-4 biswas, bearing Khasra No.696, situated in the area of village Nawan Graon, Pargana Plassi, Tehsil Nalagarh, Distt.Solan (H.P.) as entered in the Jamabandi for the year 1994- 95 hereinafter called the “Suit Property” for all intends and purposes.” 5. The pleading of the plaintiff is that the predecessor-in-title (father of the plaintiff) Shiv Saran Dass was proprietor and Khewatdar of the same village. His estate was inherited by the plaintiff Krishana and deceased Smt.Chanan Dei, mother of the plaintiff and widow of Shiv Saran Dass, who also died in the year 1990 and her estate devolved upon the 5 plaintiff and Harbans Kaur, Janak Dulari, Sudama, Kamal, Kanta, Smt.Krishna etc. Defendant Subhash Chand held himself out to be successor-in-interest of Smt. Chanan Dei by setting up a will and this dispute on the date of the suit is alleged to have been pending before the Financial Commissioner at Shimla. 6. Rithu Mal brother of Shiv Saran Dass had pre- deceased Shiv Saran Dass and his estate is also stated to have been inherited by the father of the plaintiff Shiv Saran Dass. The case set out is that defendant No.1 manipulated the revenue records and by practicing fraud, got his name entered in the revenue record being the legal heir of Rithu Mal which entry in the revenue record is not binding on the plaintiff’s interest being against the factual situation, having been made without recourse to law and is the outcome of manipulation etc. According to the plaintiff, deceased Shiv Saran Dass remained in possession of the property of Rithu Mal as owner and thereafter the plaintiff and other defendants including defendants No.2 to 6 had inherited the property. Sudama Ram, defendant No.1 is a totally stranger. 7. Civil Suit No.25/1 was instituted by Rithu Mal during his life time against Shiv Saran Dass for possession of property as described in sub-para-(a) above. The present Khasra No.696, subject matter of the present suit, was also the subject matter of the previous suit though Rithu Mal wrongly mentioned as 6 Khasra No.925/594 in his plaint in Civil Suit No.25/1. This suit was decided by judgment dated 16.6.1950, by which, Shiv Saran Dass was held to be the owner of the disputed property by way of adverse possession. Rithu Mal is stated to have filed Appeal No.43 on 5.7.1950, which was dismissed by the learned District Judge Fatehgarh Sahib at Bassi. In nutshell the case set out by the plaintiff is that Shiv Saran Dass was held to be owner in possession of the suit property i.e. the property as mentioned in sub-paras (a) and (c), as noted above. The plaintiff being the proprietor and Khewatdar of village Nawangraon is the co-owner and co- sharer in possession of the abadi deh in which she has raised the construction of one house about 9-10 years ago over an area measuring 312 Sq.feet. This construction was raised by the plaintiff without any hindrance or objection of any other Khewatdar or proprietor(s) of the village. 8. The case then proceeds that defendant No.1 filed a suit and obtained a decree of suit property without impleading the plaintiff as party and this fact came to her knowledge when he tried to dispossess her from the suit property in execution of decree in Civil Suit No.253/1 of 1990. The plaintiff alleges that this judgment and decree is not binding upon her interest as she was intentionally not impleaded as a party and the decree is the outcome of suppression of material facts. The plaintiff then says that Civil Suit No.253/1 of 7 1990 is the same which was the subject matter of suit No.25/1, decided on 16.6.1950. The plaintiff claims 4/9th share in the suit property and defendant No.1 had no locus standi to file suit No.253/1 of 1990 and that the decree is un-executable. This fact has come to the notice of the plaintiff only when he took out execution proceedings. Defendant No.1 resisted the suit, contested it on various grounds including res judicata and stated that plaintiff is permanent resident of Khizrabad (Punjab) and therefore, cannot be the Khewatdar of the village. He challenged the validity of the will having been made in favour of Subhash Chand and also alleged that Krishna Devi and Subhash Chand both had taken litigation up to High Court in the earlier suit and had failed. He submitted that the orders, passed in his favour by the High Court in RSA No.342 of 1994, titled: Krishana Devi and Another vs. Sant Ram, have become final and binding between the parties. 9. On the pleadings of the parties the learned trial Court settled 12 issues. Two important issues were tried by the learned trial Court to hold that the suit was not maintainable. Issue Nos.6 and 7 read: “6. “Whether the suit of the plaintiff is barred by principles of resjudicata? 7. Whether the suit of the plaintiff not maintainable.” 8 10. As noted above, the litigation between the parties has taken a torturous course. Under Issue No.6, entire litigation between the parties has been considered. The learned Court on the basis of the litigation inter se the parties as also the predecessors-in-interest, held against the plaintiff, holding that, “However, the suit of the plaintiff qua Khasra No.706 as alleged in Sub-para 1(b) of para-1 cannot be said to be barred by principle of resjudicata. Accordingly, issue No.6 is decided partly in favour of the defendant No.1.” On merits the learned Courts below find that the plaintiff is not entitled to the relief as claimed, since she has been unable to establish her right to the property either by succession or independently. 11. Adverting to issue No.7, dealing with the question regarding maintainability of the suit, the Court holds that the cause of action accrued to the plaintiff according to pleadings and evidence as on 10.8.1997 when defendant No.1 purportedly tried to dispossess her on the basis of execution of the decree of Civil Suit No.253/1 of 1990. The learned trial Court held and rightly so that the plaintiff had the knowledge of this decree and was facing dispossession in execution of the said decree. The suit of the plaintiff was held to be not maintainable as for all questions arising in the execution, plaintiff was entitled to resort to Order 21 Rule 97 and not by way 9 of a separate suit. In these circumstances, it was held that the suit with respect to Khasra No.696 is not maintainable. 12. I have noticed these two aspects as when the case went in appeal before the learned appellate Court, again ponderous pleadings and voluminous documents were referred to and arguments with respect to the main issues were given complete go by and the case was disposed of. The learned appellate Court, dismissed the appeal preferred by Shakuntala, plaintiff herein, and allowed the appeal preferred by Sant Ram. I have already noted the remand order by which I had sent the appeal to the appellate Court for decision afresh in accordance with law. This appeal was admitted on two substantial questions of law:- “1. Whether a unilateral judgment passed in exclusion of the necessary party could operate in detriment to her rights and whether such judgment would affect the rights of such party and operate as res judicata in a subsequently instituted suit? 2. Whether the learned courts below have misread and mis-appreciated the pleadings and evidence on record, especially, the statements of PW-1, DW-1, Exts.P-2, P-6, P-7, P-9 and whether such findings on account of misreading and mis- appreciation are vitiated?” 10 Question No.1: 13. Learned District Judge on re-appreciation of the facts find that the property in the suit is different from the property involved in the suit between late Shri Shiv Saran Dass where he was declared to be owner in adverse possession of the property. The Court also considers the judgment in RSA No.342 of 1994, titled: Krishana Devi & Another vs. Sant Ram as also the torturous course of litigation between the predecessor-in-interest of the parties and therefore, to arrive at this conclusion on the two questions of law as urged in this appeal, I do not find that any interference is called for. Khasra No. 696 and the constructed portion thereon was the subject matter of RSA No. 342 of 1994 which finally concludes the issue. Question No.2 14. I do not find that the Courts below have erred in considering the statements of PW-1 Sant Ram and DW-1 Subhash Chand. I also do not find that the documents mentioned in Ex.P-2, Ex.P-6, Ex.P-7 and Ex.P- 9 have been misread by the parties. The identity of the suit land with that of the land in litigation between the predecessors of the parties has not been established and as such no right(s) can be claimed by the appellant. 11 RSA No.151 of 2009. 15. This appeal was admitted on two substantial questions of law:- “1. Whether without proving the criteria for determination and calculation of the mesne profits derived by the person in wrongful possession, a suit for recovery of mesne profits can be decreed in favour of the plaintiff claiming the mesne profits? 2. Whether a judgment of Criminal Court is binding upon a Civil Court and can be taken as conclusive proof of determining existing rights of parties in contradiction to the provisions of Section 43 of the Indian Evidence Act, 1872 and whether such judgment of the Criminal Court is to be corroborated by independent evidence for reaching a conclusive proof inter se the rights of the parties?” 16. In the appeal, which was allowed by the learned District Judge setting aside the decree in the suit which has been dismissed by the trial Court, what I find is that on the settled issues where the plaintiff before the trial Court (Sant Ram) was claiming mesne profits of Rs.32,400/- alongwith 12 interest etc. from 5.6.1998 to 6.6.2001, the learned trial Court denied the mesne profits for the reasons that it was not established that what was the rate of the mesne profits. The Court accepts that according to documents Ex.PE, Ex.PD and Ex.PF, defendants No.1 and 2, namely, Krishana Devi and Subhash Chand were in possession of the suit land. In appeal, the learned District Judge holds that the plea of the appellants herein that they have vacated the possession of the suit property during the year 1997 has not been established on the record of the case. It was only the evidence of Subhash Chand, DW-1 who had stated so in his evidence that the premises infact had been vacated, which statement has not been accepted by the learned trial Court below. This is a finding of fact in which no interference is called for. However, on the question of quantum, there can be no doubt that the learned trial Court has rightly held that unless the quantum is established on the record it cannot be granted atleast at the rate at which it has been granted. So far as the rate is concerned, learned appellate Court is in error in holding that Rs.900/- per month was to be paid from 13.10.1998 to 7.6.2001. At the same time, I cannot persuade myself to hold that the respondent herein would not be entitled to any claim. It is by now well settled that a reasonable sum of money can be awarded even if any damage is established. Considering the totality of the 13 facts and circumstances of the case, I deem it proper to reduce the sum to Rs.20,000/-, which shall carry interest at the rate as directed by the learned appellate Court. On the questions of law raised, I do not find that these require an answer inasmuch as it is not merely the judgment of the criminal Court which has been taken for approving the criteria of possession, but totality of the litigation between the parties which has been considered by the two Courts below, finding the claim of the appellant Krishana, now represented by Chaman Lal, to be frivolous and directing a part of the claim to be adjudicated in execution proceedings. In these circumstances, question No.3 is answered partly in favour of the appellant. Question No.5 does not call for any explanation as dehors the judgment of the criminal Court, if the judgment of the criminal court is excluded, the Court does not accept the evidence of Subhash Chand DW-1 to the effect that he has vacated the premises in 1997. This evidence by itself implies that they were infact in possession up to 1997. Both the appeals are disposed of accordingly. September 21, 2011. (Dev Darshan Sud) (aks) Judge.