IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.354 of 2003 Judgment reserved on: 4.12.2009 Date of decision: 22.2.2010 Bhagirath and Another ….. Appellants. Vs. Lekh Ram and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Ramakant Sharma,Advocate. For the Respondents : Mr. Ajay Chandel, Advocate, for respondents No.1 to 7. None for other respondents. Kuldip Singh, Judge. The appellants were defendants 1,4 in the suit and they are aggrieved by judgment dated 25.8.2003 passed by learned District Judge, Hamirpur in Civil Appeal No.180 of 1998, affirming judgment, decree dated 22.9.1998 passed by learned Sub Judge Ist Class(1), Hamirpur in C.S. No.184 of 1989. 2. The facts in brief are that respondents No.1 to 7 had filed a suit for possession against appellants and other respondents on the grounds that the old khasra numbers of the suit land were 959 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… and 960, measuring 28 kanals 11 marlas and after consolidation new khasra numbers have been given to the suit land. Sadhu the predecessor-in-interest of respondent No.8 was non-occupancy tenant to the extent of 1/4th share in suit land, Shambu the predecessor-in-interest of respondents No.1 to 7 to the extent of 1/4th share and Sihnu to the extent of ½ share. The share of Sihnu also came to Shambu and then Shambu became tenant on the suit land to the extent of 3/4th share. The revenue entries failed to show the correct position and the proprietary rights could not be conferred on respondents No.1 to 7 3. It is also the case of the respondents No.1 to 7 that their predecessor Shambu had died in the year 1967, his tenancy rights in the suit land were succeeded by Lokha, Jagat Ram, Shankar Dass and Taika who remained in possession as non-occupancy tenants upto the consolidation of holdings which took place in the year 1987- 88. On account of wrong entries, respondents No.1 to 7 were allotted less land to the extent of 8 kanals 5 marlas and defendants were allotted excess share without any right, title and interest. The defendants were requested to concede the rights of respondents No.1 to 7, they failed to concede rights of respondents No.1 to 7 over the suit land, therefore, suit for possession was filed. 4. The suit was contested. The defendant No.1 Birju and defendant No.2 Budhi Singh had filed joint written statement, defendant No.4 separate written statement, defendants No.5,8,19 and 20 also filed separate written statement. During the pendency of the suit names of Birju and Budhi Singh were deleted and Bhagirath …3… was substituted as defendant and he also filed separate written statement. The defendants have taken preliminary objections of maintainability, estoppel, limitation, misjoinder and non-joinder of necessary parties, on merits the defendants have denied the tenancy rights of plaintiffs over the suit land. They have taken the stand that since the plaintiffs were not tenants over the suit land, therefore, there is no question of conferment of proprietary rights on them. The defendants have taken the plea that plaintiffs have become co- sharers with defendants on account of registered sale deed in their favour. The plaintiffs were thus co-sharers and not tenants at the time of coming into force of H.P. Tenancy and Land Reforms Act. The plaintiffs ceased to be tenants on purchasing the land in the year 1960 and they have prayed for dismissal of the suit. 5. In replication, the plaintiffs reiterated their stand. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs had been tenants of khasra nos. 959 and 960, as alleged ? OPP 2. Whether the plaintiffs are entitled for the decree for possession of suit land as alleged? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiffs have no cause of action ? OPD 5. Whether the plaintiffs are estopped from filing the suit due to their acts and conduct? OPD 6. Whether the suit is not within limitation? OPD 7. Whether Civil Court has no jurisdiction to try the suit? OPD 8. Whether the suit is bad for misjoinder of parties? OPD 9. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 10. Relief. …4… The trial Court decreed the suit on 5.2.1996. The learned District Judge in Civil Appeal No.36/96 on 8.1.1998 set aside the judgment dated 5.2.1996 and remanded the suit to the trial Court with a direction to the trial court to decide the question regarding the death of Sant Ram and consequences flowing thereon in accordance with law. After remand, the learned trial Court decreed the suit on 22.9.1998 and the learned District Judge on 25.6.2003 has affirmed the judgment, decree dated 22.9.1998 of the trial Court. In these circumstances, the appellants have assailed impugned judgment, decree in the second appeal which has been admitted on the following substantial questions of law:- 1. Whether the learned courts below are right in not taking into consideration the provisions of H.P. Consolidation of Holdings and Prevention of Fragmentation Act, 1971, which specifically bars the jurisdiction of the Civil Court particularly Section 57? 2. Whether The learned courts below are right in not taking into consideration the fact that civil court had no jurisdiction keeping in view the fact that the provisions of Section 115 of the H.P. Tenancy and Land Reforms Act debars the civil court from taking cognizance of a dispute which is covered under the said Act? 3. Whether the learned courts are right in not taking into consideration the provisions of order 20 rule 5 CPC which clearly provides for recording findings on each issue separately? 4. Whether the learned courts are right in misreading the evidence of DW1 Ajeet Singh? …5… 5. Whether the learned courts are right in holding that the consistent entries existing in favour of the appellants stood rebutted by way of oral evidence by misreading as well as misinterpreting the oral statement of the plaintiffs? 6. Whether the impugned judgment and decree can sustain in view of the fact that the appellant No.1 has been denied the opportunity of cross-examining the witnesses of plaintiff as he had joined as party after the evidence of the plaintiffs was recorded? 6. I have heard learned counsel for the parties and have also gone through the record. Mr. Ramakant Sharma, learned counsel for the appellants has submitted that the suit is barred under Section 57 of HP Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. The suit is also barred under Section 115 of the H.P. Tenancy and Land Reforms Act, 1972. There is violation of Order 20 Rule 5 CPC in as much as each issue has not been decided separately. There is misreading of statement of DW-1 Ajeet Singh. There is consistent revenue entries in favour of the appellants regarding the suit land which have not been rebutted. Bhagirath appellant No.1 was not given opportunity to cross-examine the witnesses of plaintiffs after he was impleaded as defendant in the suit. The learned counsel for the respondents/plaintiffs has supported the impugned judgment, decree. He has submitted that suit is neither barred under Section 57 of the HP Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 nor under Section 115 of the H.P. Tenancy and Land Reforms Act, 1972. There is no misreading of evidence. …6… 7. The substantial question No.1 is taken up first for consideration. The Section 57 of the HP Holdings ( Consolidation and Prevention of Fragmentation) Act, 1971 is as follows:- “Jurisdiction of civil court barred as regards matters arising under this Act- No person shall institute any suit or other proceedings in any civil court with respect to any matter arising out of the consolidation proceedings or with respect to any other matter in regard to which a suit or application can be filed under the provisions of this Act”. 8. The learned counsel for the appellants has relied Ex.DX order dated 6.8.1991 of Consolidation Officer, Hamirpur in support of his contention that claim of respondent No.2 Jagat Ram regarding his possession on khasra Nos.959 and 960 as tenant was rejected. It has been contended that Section 57 bars the jurisdiction of the Civil Court. The suit is with respect to 8 kanals and 5 marlas land more specifically detailed in the plaint. The defendants Briju and Budhi Singh in their written statements have pleaded that prior to consolidation defendants are owners in possession of the suit land. They have admitted that consolidation took place in the year 1987-88. In written statements none of the defendants has pleaded that the suit land was allotted to the defendants in the consolidation proceedings. The defendants in the suit have not raised the issue that since the suit land was allotted to them in consolidation proceedings, therefore, under Section 57 the suit is barred. The learned counsel for the respondents has relied Lajpat Rai vs. Smt. Taro Devi and others 1999(1) S.L.J.511 and judgment dated 20.3.2009 in RSA No.48 of 1999 in support of his contention that Civil Court has jurisdiction to try the suit. The appellants have relied Baldev Singh and others vs. …7… Siri Ram Latest HLJ 2008 (HP) 642 in support of their submission that Civil Court has no jurisdiction. In the present case, it is not the pleaded case of the defendants that the suit land was allotted to them in the consolidation and therefore, civil court has no jurisdiction. The order dated 6.8.1991 Ex.DX does not indicate that the suit land was allotted to defendants in order to oust the jurisdiction of the Civil Court by invoking Section 57. The defendants have failed to establish that the suit land was allotted to them in consolidation proceedings and therefore, Civil Court has no jurisdiction. The substantial question of law No.1 is decided against the appellants 9. The substantial question of law No.2 is again regarding the jurisdiction with respect to ouster of jurisdiction of the Civil Court in view of Section 115 of the H.P. Tenancy and Land Reforms Act, 1972 which is as under:- “ Bar of jurisdiction- Save as otherwise expressly provided in this Chapter, every order made by the Collector, Commissioner or Financial Commissioner shall be final, and no proceeding or order taken or made under this Chapter, shall be called in question by any Court or before any officer or authority.” In the present suit no order of Collector, Commissioner or Financial Commissioner passed under the H.P. Tenancy and Land Reforms Act, 1972 has been assailed, therefore, Section 115 of the said Act is not applicable. Hence, substantial question of law No.2 is decided against the appellants. 10. The learned counsel for the appellants has relied rule 5 order 20 CPC and has submitted that issues have not been decided …8… separately by the Courts below. Rule 5 of Order 20 provides that Court shall state its finding or decision, with the reasons therefore, upon each separate issue. It is not the case of the appellants that each issue has not been decided by the Courts below. The grievance of the appellants is that each issue has not been separately decided. It has not been submitted that by not deciding each issue separately any prejudice has been caused to the appellants. There is no merit in substantial question of law No.3 which is decided against the appellants. 11. The substantial questions of law No.4 and 5 are taken up together as these are interconnected. The case of the plaintiffs is that they were tenants of 3/4th share on old khasra Nos.959 and 960 through their predecessor and they continue to be in possession of the suit land till consolidation and after consolidation they were wrongly dispossessed. The stand of the defendants is that the plaintiffs have become co-sharers with defendants by way of registered sale deed and they were not the tenants. The defendants No.5 to 8, 19 and 20 further elaborated that the plaintiffs have purchased the land prior to 1960 and become co-sharers and ceased to be the tenants. The defendant Baghirath has taken the plea that the plaintiffs were conferred proprietary rights as per their shares and eligibility. The defendants have thus taken divergent stands in their written statements. DW-1 Jeet Singh has admitted that Shambu Ram was predecessor of plaintiffs. Shambu and Chandu were tenants on the suit land. Shambu used to cultivate the land and after the death of Shambu plaintiffs jointly came in possession of the suit …9… land and their possession continued till consolidation. DW-2 Hari Singh has stated that Chandu, Shambu and Sihnu used to cultivate the suit land as tenants. The plaintiffs came in possession of the suit land after the death of Shambu. The defendants took over possession of the suit land after consolidation. DW-3 Narain Dass has stated that Chandu, Shambu and Sihnu as per their shares were tenants on the suit land. Shambu continued to cultivate his share as tenant during his life time. The plaintiffs are claiming the suit land through Shambu and Sihnu. It is not the case of the defendants that shares of Shambu and Sihnu were not devolved on the plaintiffs. The witnesses of the defendants have virtually admitted the case of the plaintiffs. 12. The two Courts below have rightly appreciated the material on record. It is not the case of the appellants that specific material, evidence has been ignored and irrelevant and inadmissible evidence has been considered while returning the findings in favour of the plaintiffs. The perversity in the impugned judgment has not been established. In second appeal appreciation of the evidence is not possible. The two Courts below have rightly appreciated the material on record, hence substantial questions of law No.4 and 5 are decided against the appellants. 13. The learned counsel for the appellants has submitted that appellant Bhagirath was impleaded in the suit vide order dated 21.11.1994 but before that evidence of the plaintiffs was recorded he was not given an opportunity to cross-examine the witnesses of the plaintiffs. The plaintiffs had filed application dated 18.4.1994 for …10… deleting the names of original defendants Birju and Budhi Singh and for impleading Bhagirath as defendant in the suit. In the application it was pleaded that after the institution of the suit Birju and Budhi Singh defendants have sold the land in suit belonging to them to Bhagirath and Birju has also died on 5.2.1994. Therefore, the application for deleting the names of Birju and Budhi Singh and for impleadment of Baghirath was made. This application was allowed. Bhagirath has filed separate written statement. He has not taken the defence that the suit land was purchased by him before the institution of the suit. Therefore, the sale of any part of suit land in favour of Bhagirath by Birju and Budhi Singh is governed by Principle of lispendence. Bhagirath in these circumstances, at the most can defend the suit from the stage it was left by Birju and Budhi Singh. The suit was decreed by the trial Court on 5.2.1996. In appeal the suit was remanded on 8.1.1998. The learned counsel for the appellants has not submitted that at any stage of the suit after the impleadment of Bhagirath he ever requested the trial Court to permit him to cross-examine the witnesses produced by plaintiffs prior to his impleadment in the suit. It appears Bhagirath was substituted when cross-examination of the plaintiffs witnesses was already over and therefore, he never pressed for cross-examination of plaintiffs witnesses. In the first appeal also except taking a ground to this effect it appears this contention was not raised at the time of hearing of the appeal. This also indicates that Bhagirath was satisfied with the cross-examination of plaintiffs witnesses already conducted before his impleadment and no prejudice was caused to him. In …11… these circumstances, substantial question of law No.6 is decided against the appellants. 14. No other point was urged. 15. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. February 22, 2010. ( Kuldip Singh ) (sks) Judge.