IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 218 of 1995. Judgment reserved on: 17.8.2010. Date of decision: August 31, 2010 Painu Ram ….Appellant. Versus Sohan Singh and others. ….Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the appellants : Ms. Vidhushi Sharma, Advocate, vice Mr. R.K. Sharma, Advocate. For respondents : Mr. Adarsh K. Vashishta, Advocate, for respondents No.7,8, 10 and 11. Ms. Monika Shukla, Advocate as Court Guardian for minor Respondents No.3(d) and 3(e). None for other respondents. Surinder Singh, J : 1. This second appeal was admitted on the following substantial questions of law, vide order dated 1.4.1997: (i) Whether the civil court has jurisdiction to decide that the defendant is not a tenant on the agricultural land? 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - (ii) Whether the learned first appellate court is justified in allowing the plaintiffs’ application for additional evidence at the belated stage? (iii) Whether on the basis of the oral as well as documentary evidence, the appellant is not proved to be in possession of the land in dispute and whether the suit was not liable to be dismissed in the present form? (iv) Whether the learned courts below are justified in ignoring the revenue entries and oral evidence in the case, which goes to the root of the case? 2. The respondents No.1 and 4 herein, respondent No.2 deceased Anant Ram [deleted vide order 8.9.2009, his Legal representatives namely Sohan Singh and Shyam Dei, respondents No.1 and 4 respectively already on record] and Malkiat Singh, the predecessor-in-interest of respondents No.3(a) to 3(e), were plaintiffs before the learned trial Court. They had filed a suit against the appellant and proforma respondents No.5 to 12, seeking declaration qua the suit land that they had become the owners thereof by efflux of time and the said defendant-respondents have no right, title or interest in the suit land, with a consequential relief of permanent injunction, in alternative prayed for a decree of possession. - 3 - 3. The parties in this appeal shall be referred as plaintiffs and defendants hereinafter as they were before the learned trial Court. 4. In short the case of the plaintiffs have been:- (i) That one Shri Nikku s/o Dumnu and Mst. Surju, widow of Jodha were recorded as ‘Kismi’ tenants of the suit land. They mortgaged their tenancy rights in favour of Gobindu and Charnu, son of Founu. To this effect, Mutation No.1037 was sanctioned and attested on 7.5.1900. (ii) Thereafter, vide Mutation No.71, dated 20.11.1940, the tenancy rights were transferred by Bhagat, Lokhu and Fatta mortgagees for a consideration of Rs.12/- in favour of Matho Ram, who also took the possession of the suit land as mortgagee. - 4 - (iii) Matho Ram died about 6 years ago and the plaintiffs claimed themselves to be in possession of the suit land as mortgagees under Hardayal son of Gurditta mortgagor, who expired leaving behind respondents No.1 to 3 as his legal heirs. (iv) The mortgage in question was not redeemed within the prescribed time, thus the mortgagees claimed that they became its owner by efflux of time as the mortgagors have lost their right and interest in the suit land, thus, they are not entitled to cause an interference in the suit land. 5. It was also the case of the plaintiffs that the defendants were never inducted as tenants over the suit property nor they at any point of time were in possession thereof. The defendants are alleged to have abandoned their possession in favour of the plaintiffs, thereafter they settled in the area of Suket. - 5 - The sale deed dated 4.5.65 executed by Devi Ram son of Nikku, in favour of Lokhu son of Gurdas in respect of the suit land was void, illegal and the plaintiffs claimed that it was not binding upon their rights. Since the defendants failed to admit the above possession, in favour of the plaintiffs, as such, the suit for seeking declaration and injunction was filed. 6. Defendants No.1 to 3 (Sohan Singh, Anant Ram and Malkiat Singh) resisted and contested the suit and took up the preliminary objections of limitation and resjudicata as the earlier Civil Suit No.218 of 1982/ 294 of 1983 was already decided qua the suit land and further that the defendants had been in possession of the suit land as tenants under Matho Ram mortgagor and had became the owners thereof under the law. Matho Ram and Hardayal both had died. The possession of the mortgagees as alleged was disputed. They specifically denied that the possession was ever delivered to the mortgagees by the mortgagors by the alleged sale deed, thus claimed that defendant No.1 had been in possession of the suit land as its - 6 - owner. The cause of action was also denied. Other defendants had admitted the claim of the plaintiffs. 7. The plaintiffs-respondents controverted the stand taken by the contesting defendants and further pleaded that the judgment on the basis of which resjudicata was claimed was between different parties on a different subject matter. 8. On the pleadings of the parties, the following issues were framed: (1) Whether Devi Ram son of Nikku Ram & Smt. Surju mortgaged with possession tenancy rights in suit land in favour of Bhagat Ram, Fithu & Lokhu sons of Gurdas? If so, when? ...OPP. (2) Whether Bhagat Ram, Fithu & Lokhu sons of Gurdas sold their mortgagee rights in favour of late Mathu Ram predecessor in interest of plaintiff? …OPP. (3) Whether Mathu Ram deceased & plaintiffs are and were in possession of mortgaged rights in suit land? …OPP. (4) Whether plaintiffs have acquired the proprietory rights over the suit land by lapse of time? …OPP. (5) Whether defendant Nos.1 to 3 have abandoned their tenancy rights over the - 7 - land in suit. If so, since when and to what effect? …OPP. (6) Whether Devi Ram son of Nikku has sold his tenancy rights to defendants No.1 to 3. If so, what effect? …OPD. (6-A) Whether suit of plaintiff is barred by the principle of resjudicata as alleged? …OPD. (7). Relief. 9. On completion of the trial, the learned trial Court held that the suit was barred by the principle of resjudicata qua the land measuring 4 kanals, comprising Khasra Nos.25, 411/26 and 412/26 and the findings on Issues No.1 and 2 were returned in affirmative, Issue No.3 was partly decided in favour of the plaintiffs and their claim in respect of land measuring 4 kanals comprised in Khasra Nos. 25, 411/26 and 412/26 out of the suit land was rejected with a finding that the defendants had acquired the proprietory rights in respect of the same as it was so held in the previous suit between the parties. Issue No.4 was also partly decided in favour of the plaintiffs. They were declared to have become owners of the suit land except 4 kanals of khasra numbers stated above. The findings on Issues - 8 - No.5 and 6 were returned in negative and Issue No.6-A was partly held in favour of defendants. Consequently, the relief of declaration and permanent injunction was granted by the learned trial Court, in favour of the plaintiffs and against the defendants except 4 kanals of the land comprised in khasra Nos.25, 411/26 and 412/26 above. 10. Feeling aggrieved and dissatisfied by the impugned judgment and decree passed by the learned trial Court, Painu Ram defendant filed an appeal in respect of the suit land comprised in Khasra Nos.406/24, 408/26 and 410/26 measuring 4 kanals 9 marlas, on the grounds that this land was not mortgaged and the suit of the plaintiffs with respect to the this land was not maintainable. 11. On re-examination of the matter, the learned first appellate Court did not find any error in the impugned judgment and decree passed by the learned trial Court, as such, dismissed the appeal, against which the present second appeal has been filed by the said defendant under Section 100 of the Code of Civil Procedure. - 9 - 12. I have heard the learned counsel for the parties and have carefully gone through the records of the case. 13. As already stated above, the dispute inter-se the parties remains with respect to the land measuring 4 Kanals 9 marlas of the khasra numbers aforesaid, which was initially mortgaged and mortgagees rights in respect of which were purchased by the predecessor-in-interest of the plaintiffs. The learned first appellate Court on the reappraisal of the evidence on record took notice of the amended written statement wherein the defendants set-up the plea that he had been in possession of the land aforesaid as a tenant under Mathu Ram, predecessor-in-interest of the plaintiffs and subsequently acquired the proprietory rights. The plea with respect to the purchase of mortgagees rights from Devi Ram by a sale deed dated 4.5.1965 was also taken, but however the possession of the plaintiffs was denied, but in the grounds of appeal taken before the learned first appellate Court it has been stated that the aforesaid land was not mortgaged which the first - 10 - appellate Court found contrary to the initial stand taken in the written statement, whereas in the previous suit filed by him, he had claimed to have become owner by operation of law under the Tenancy Act only with respect to 4 kanals of land comprised in khasra Nos.25, 411/26 and 412/26. His plea was upheld in that suit. He pleaded that Mathu Ram was a mortgagee of the suit land for the last about 30 years and by efflux of time, he had become owner thereof because it was not redeemed within the statutory period of 30 years, but the defendant Painu Ram had claimed that he was in possession of the land as tenant under Mathu Ram. 14. Further during the pendency of the appeal, before the learned District Judge, the plaintiffs also moved an application under Order 41 Rule 27 of the Code of Civil Procedure for additional documentary evidence on 27.10.1994 with a prayer that certain documents which were earlier placed on record could not be adduced in evidence due to inadvertence and that copy of Mutation No.351 - 11 - which was annexed with the application was also sought to be adduced in evidence. 15. The learned counsel for the appellant- defendant did not object to it, thus in view of the stand taken by him, the application was allowed. Appellant-defendant tendered in evidence documents Exts.A-1 to A-5 and the plaintiffs Exts.R-1 to R-9. Thus, against the above background, the substantial questions of law at point No.(ii) above does not arise for determination at all. 16. Further on the reappraisal of the evidence, the first appellate Court rightly noticed that the Mutation No.21 dated 20.11.1940 shows that 9 kanals 7 marls of land was owned by Mathu and others. Devi Ram son of Nikku and Mst. Surju widow of Jodha were recorded as ‘Kismi’ tenants thereof. Thus, the said tenants were also shown as mortgagors in respect of their tenancy rights. Bhagat, Lokhu and Fatta, sons of Gurdas were the mortgagees of those tenancy rights and they transferred the mortgagee’s rights in favour of Mathu Ram for a consideration of Rs.12/-. Thus Mutation Ex.P3 was attested in their favour. The land in - 12 - possession of ‘Kismi’ tenants was with respect to Khasra Nos.24, 25 and 26 as is evident from the copy of jamabandi for the year 1941-42. It is shown to have been owned by Mathu as co-owners and the column of cultivation reflects the mortgagees in possession of the said khasra numbers. Ex.P4 Misal Hakiat for the year 1914-15 shows that the aforesaid khasra numbers were in possession of Thakur Dayal, Hardayal, Sarvdayal and Jai Singh, sons of Gurditta to the extent of 2/3 share and 1/3rd share in favour of Sera son of Garu, wherein Nikku son of Dumnu and Mst. Surju, widow of Jodha were recorded as ‘Kismi’ tenants as well as mortgagors, whereas, Gurdwaru son of Punnu is shown as mortgagee of tenancy rights in respect of aforesaid land and those entries were recorded in the subsequent jamabandis Exts.R- 3 to R-6 and no evidence was led to rebut the presumption of truth to the aforesaid entries and the record of rights. 17. Taking notice of the above facts, the learned first Appellate Court observed that it can be said with certainty that the classified tenancy rights were mortgaged by the tenants and the subsequent - 13 - rights were purchased by one of the co-owners of the land under reference. 18. The jamabandi for the years 1945-46 (Ex.R- 7) makes a reference of Mutation No.79 with regard to the partition of the land. Thus, Mathu Ram came in its exclusive ownership qua 4 marlas of khasra No.406/24, 10 marlas of khasra No.400/26 and 3 kanals 9 marlas of 410/26 total land measuring 4 kanals 9 marlas. The column of possession reflected the name of classified tenants against 1/3rd of the total produce. Since the owner was also mortagee of the tenancy rights, the entire produce was appropriated by him and this entry was continuously rejected in the subsequent jamabandies for the years 1953-54 (Ex.R-8), 1961-62 (Ex.R-2) and 1971-72 (Ex.A-4). 19. In the jamabandi Ex.A-4 for the year 1971- 72, there finds a mention of the entry of inheritance in the remarks column qua the estate of Mathu Ram with respect to land measuring 4 kanals 9 marlas in favour of his widow, sons and daughters respectively and in the column of possession, it shows Devi Ram s/o Nikku and Hardayal son of Gurditta in possession - 14 - with respect of ½ share, but in the subsequent jamabandi for the years 1978-79, it was entered in the ownership and possession of Lokhu to the extent of ½ share and another half in the name of Hardayal son of Gurditta and the proprietory rights were conferred upon them vide mutation N.224 (Ex.A-5). Painu Ram defendant had also filed objections against it, which were considered by the Consolidation Officer and the matter was decided by him on 11.1.82 vide Ex.CA (Page 182 of the trial Court file) whereby he ordered that the defendant Painu Ram co-sharer would be recorded as non- occupancy tenancy under the mortgagees against batai in respect of Khasra Nos.25, 411/26 and 412/26 and rest of the entries qua other Khasra numbers would remain as it is. 20. Thus, the logical conclusion of the above is that the land measuring 4 kanals 9 marlas of the aforesaid khasra numbers had been in possession of the classified tenants, who had mortgaged their tenancy rights which were subsequently purchased by the predecessor-in-interest of the plaintiffs. Thus, examined on all angles, I find that the findings - 15 - arrived at by the courts below with the aforesaid land was a part of the area which was subject matter of the transaction of the mortgage under reference is correct and does not suffer from any vice. 21. In the oral evidence led by the parties, both of them had claimed to be in possession of the land in dispute and claimed it as per the version given by them in their pleadings, but the documentary evidence, as discussed above clinches the whole matter. 22. For the reasons aforesaid, the above substantial question of law are answered that the Civil Court has jurisdiction to remove the cloud on the rights of the parties where the tenancy is disputed. Further, the first appellate Court was justified in allowing the plaintiffs application for additional evidence on the concession given by the learned counsel for the defendant and to facilitate to decide the matter effectively to do substantial justice. In nutshell, the evidence on record was properly appreciated threadbare and meticulously by the courts below and I do not find any mis- - 16 - appreciation of evidence and misinterpretation of law. No other point is urged or proved, as such, the appeal is without any merit, hence dismissed. Cost on parties. August 31, 2010 (Surinder Singh), (Pds) Judge.