IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 347 of 2000 Reserved on: 28.9.2010 Date of decision: 28.10.2010 Shiv Ram ... Appellant Versus Indra and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate. For the respondents: Mr. Bhupender Gupta, Senior Advocate with Mr. Praneet Gupta and Ms. Charu Gupta, Advocates. V.K. Ahuja, J.: This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/plaintiff against the judgment and decree of the Court of learned Additional District Judge, Mandi, dated 20.5.1999, vide which the appeal filed by the respondents was allowed and the judgment and decree passed by the Court of learned Sub Judge, Karsog, dated 22.4.1994, decreeing the suit of the appellant for declaration was set aside. 2. Briefly stated, the facts of the case are that the appellant hereinafter also referred to as the plaintiff filed a suit in regard to the land comprised in Khasra Numbers 1013, 1017, 1022 and 1023 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 measuring 24-0-9 Bighas. It was alleged that one Patt was a tenant of the land in suit comprised in these four Khasra Numbers as well as Khasra Numbers 1024 and 1027. The total land was measuring 47- 1-17 Bighas. He was tenant under plaintiff and Hari Krishan, predecessor-in-interest of the defendants. Hari Krishan died on 20.5.1976 and has been succeeded by defendants No. 1 to 4. It was alleged that Patt had relinquished the tenancy regarding Khasra Numbers 1024 and 1027, while rest of the land continued in his tenancy and by operation of H.P. Tenancy and Land Reforms Act, 1972. Patt became absolute owner of the suit land and the entry of Shiv Ram in Khana Kashat as tenant under defendants was wrong, when he was not tenant under the defendants. Patt had executed a registered Will in favour of the plaintiff, by which he gave whole of the suit land to the plaintiff vide Will dated 17.1.1974. Patt died in the year 1982-83 and the plaintiff became absolute owner of the suit land after Patt on the basis of the registered Will executed in his favour. Thus, suit for declaration was filed by the plaintiff that he is absolute owner of the suit land on the basis of the registered Will and entries to the contrary are liable to be corrected. 3. Defendants took up various preliminary objections. On merits, they pleaded that Patt had relinquished his tenancy and possession over the entire land measuring 47-1-17 Bighas in favour of the plaintiff and late Hari Krishan in the year 1965-66 and thereafter, plaintiff and Hari Krishan continued to enjoy and possess the suit land to the extent of half share. The plaintiff also sold some land out of the land of his share to others and similarly Hari Krishan also sold some land to some persons. It was alleged 3 that the defendants had earlier filed a suit for declaration and joint possession concerning the suit land against the present plaintiff, in which the plaintiff on 6.5.1991 made a statement in Court admitting the defendants and himself to be the joint co-owners in possession of the suit land measuring 27-6-17 Bighas and claimed himself to be joint co-owner to the extent of half share in the suit land. He also admitted that he was wrongly recorded as a non- occupancy tenant and stated that he had no objection to the correction of the entries. The question of Patt acquiring ownership rights does not arise, since he had already relinquished his tenancy rights over the suit land in 1965-66. Hence, the suit was liable to be dismissed. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether deceased Patt was tenant over the land comprising khasra no. 1013, 1017, 1022 and 1023 and become owner of the said land by operation of Tenancy and Land Reforms Act as alleged? OPP 2. Whether deceased Patt executed a valid Will in favour of the plaintiff? OPP 3. Whether the plaintiff is absolute owner of the suit land as alleged? OPP 4. Whether suit is not maintainable in the present form? OPD 5. Whether plaintiff is estopped by his act and conduct to file the suit? OPD 6. Whether the suit is barred by principles of resjudicata? OPD 7. Whether suit is bad for want of appointment of guardian of defendant no. 4 as alleged? OPD 8. Whether deceased Patt had relinquished his tenancy and possession over the entire land 4 measuring 47-1-17 Bigha in favour of the plaintiff and deceased Hari Krishan? OPD 9. Whether plaintiff alongwith the defendants is joint owner in possession of the suit land to the extent of 1/2 share? OPD 10. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment decreed the suit of the plaintiff for declaration. On appeal, those findings were set aside by the learned Appellate Court. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The submissions made by the learned counsel for the appellant were that the appeal was admitted on substantial questions of law Nos. 3 to 5 as detailed alongwith the grounds of appeal filed by the appellant. This pertains to the validity of the Will Ext. PW1/A having not been assailed by the respondents vide which the appellant had become absolute owner in possession of the suit land. It was also submitted that in the absence of any counter claim by the respondents, declaratory decree as passed by the learned Appellate Court could not be passed. Question No. 5 was that the respondents had not set up any claim in respect of Khasra Numbers 1024 and 1027 in the previous decided suit could not have been granted any relief as was done by the learned Appellate Court. 8. The evidence of the parties has to be appreciated in the light of the substantial questions of law as detailed above. 9. The learned First Appellate Court while deciding the appeal has formulated a question as to whether the plaintiff was 5 sole owner in possession of the suit land, which question was held in the negative and accordingly, the appeal was allowed. 10. Insofar as the Will in question Ext. PW1/A dated 17.1.1974 executed by Patt in favour of the plaintiff is concerned, the same stood proved from the statement of the witnesses examined by the plaintiff, namely, PW-2 Kaula Ram and PW-3 Kahan Chand, who were attesting witnesses of the Will and son of scribe of namely PW-5 Harish Chander. These statements were corroborated by the testimony of the plaintiff and no specific evidence was led by the defendants to hold that the Will was not validly proved or was surrounded by any suspicious circumstances. Therefore, the findings of fact recorded by both the Courts below under Issue No. 1 in regard to the validity of the Will in favour of the plaintiff stood established and I affirm those findings. 11. However, the main question for consideration was as to whether Patt, previous owner had admitted that he was not in possession of the suit land as tenant and the entry of the tenancy was wrong and he alongwith predecessor-in-interest of the defendants Hari Krishan was owner in possession of the suit land also. The learned counsel for the appellant had referred to the statement of Shiv Ram, plaintiff, Ext. DA dated 6.5.1991 in previously instituted suit filed by defendant No. 1. The said statement had also been confronted when the plaintiff appeared in the witness box as PW-1 and he admitted the certified copy of the statement Ext. DA as correct. A perusal of this statement Ext. DA shows that Shiv Ram, who was defendant in the previously instituted suit, admitted that he was co-owner alongwith the plaintiff in regard to these four Khasra Nos. 1013, 1017, 6 1022 and 1023 measuring 27-6-17 Bighas was having half share in it. He admitted that he has been shown in the revenue record as a tenant, which entry is incorrect and he has no objection in getting the same corrected. The said statement had been duly proved since the plaintiff admitted having made this statement. A party to a suit need not be confronted with the certified copy of his statement and the certified copy of the statement made by a party in a previous proceedings can be looked into even though it had not been confronted with a party having made such statement and such statement is per se admissible in evidence. But in the present case, the plaintiff has been confronted with his statement and admitted to have made the same correctly, in which he had admitted that he was not a tenant over these four Khasra Numbers, but was a co- owner to the extent of half share. 12. A perusal of the certified copy of the order sheet dated 6.5.1991 Ext. DW1/A also shows that a reference was made to the statement of Shiv Ram, plaintiff and accordingly, the suit of the plaintiff i.e. defendant No. 1, for declaration was decreed and it was directed that decree sheet be prepared accordingly. 13. It was pointed out by the learned counsel for the appellant during the course of arguments that certified copy of the plaint in the previously instituted suit Ext. DB was also proved before the learned Appellate Court by filing an application for additional evidence under Order 18 Rule 17-A C.P.C. read with Section 151 C.P.C. and the same evidence was allowed to be placed on record without objection by the present plaintiff. Ext. DC was the copy of previously instituted plaint and this clearly shows that the suit was 7 filed by the defendants for declaration as against the present plaintiff who was defendant in this case and the suit was in regard to five Khasra Numbers and the copy of the decree sheet clearly shows that the suit of the defendants in the present case for declaration was decreed and the entry showing the defendant i.e. the present plaintiff as a tenant over the land in question was held to be null and void. 14. Once the suit of the defendants for declaration in regard to these four Khasra Numbers had been decreed, which operates as res judicata in between the parties and as such, it is held that the present plaintiff was not a tenant over the suit land, he cannot be held entitled to the relief of declaration, though he had become owner on the basis of the Will executed by the previous tenant. Accordingly, it was rightly held by the learned Appellate Court that the plaintiff was not entitled to the relief claimed by him. The admission made by the party to the proceeding is binding upon the party and on that basis also, the suit of the defendants was decreed and those findings operate as res judicata and, therefore, the plaintiff was rightly held not entitled to the relief. 15. The decision in Ramesh Chand Vs. State of H.P. and others, Latest HLJ 2007 (HP) 941 and other decision, namely in Sant Ram Vs. Jash Ram and another, 1993(2) Sim. L.C. 497, was that confermation of proprietary rights automatic upon the tenant, are not attracted to the present facts because the confermation of proprietary rights upon the previous owner have not been challenged by the defendants, who have claimed that the plaintiff was not entitled to the relief on the basis of the decision in the previously instituted suit which operates as res judicata. 8 16. In view of the above discussion, it follows that the findings recorded by the learned Appellate Court are based upon correct appreciation of facts, evidence and law and those findings do not call for an interference by this Court. 17. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant and the same is accordingly dismissed. However, the parties are left to bear their own costs. ( V.K. Ahuja ), October 28, 2010 Judge (BSS)