IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.226/1995 Reserved on: 9.5.2008 Decided on.30.5.2008 Reshmi. …Appellant. Versus Rattan Lal and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes For the appellant : Mr. Ankush Dass Sood, Advocate. For the respondents : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 15.3.1995 passed by the learned District Judge, Shimla in civil appeal No.135-S/13 of 1995. The brief facts necessary for the adjudication of this appeal are that the predecessor-in-interest of the respondent-plaintiff No.1 filed a civil suit along with respondents-plaintiffs No.1 and 2 in the Court of learned Sub Judge, Ist Class, Rampur Bushahr, District Shimla on 20.2.1982 for declaration that they were sole owners of the land comprised khata khatauni No. 434, 434/1, 466 and 640 situate in Mauza Manjadesh (Dhamni), Kothi Naraingarh, Sub Tehsil Ani, District Kullu and the mutation dated 3.7.1980 sanctioned by the 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes 2 Collector, Kullu vide which the appellant was ordered to be co-owner was invalid without jurisdiction with a further prayer that the appellant-defendant be restrained not to interfere in possession of the plaintiff over the suit land. The suit was resisted and contested by the appellant-defendant by filing a written statement. The trial court on the basis of the pleadings of the parties framed the following issues: 1. Whether the suit is within time? OPP (objected to). 2. Whether this suit is properly valued for the purpose of court fee and jurisdiction? OPP 3. Whether the mutation dated 3.7.1980, as alleged in the plaint is void and illegal? OPP 4. Whether the plaintiffs are the owners of the suit land and are in possession of it, as alleged, if so, to what effect? OPP 5. Whether the defendant is the daughter of Jagtu, if so, to what effect? OPD 6. Relief. The trial court dismissed the suit of the plaintiffs vide judgment dated 28.5.1985. The plaintiffs preferred an appeal before the learned District Judge, Shimla on 29.6.1985 against the judgment of the trial court dated 28.5.1985. The learned District Judge accepted the appeal vide judgment dated 15.3.1995. The appellant Smt. Reshmi Devi filed a Regular Second Appeal assailing the judgment dated 15.3.1995 which was registered as RSA No. 244/1987. This Court accepted the Regular Second Appeal No. 244/87 and accordingly the judgment and decree under appeal was 3 set aside and consequently the case was remanded back to the first appellate court with a specific direction that at the first instance an application preferred by the appellant for amendment of the written statement after hearing the parties shall be disposed of and thereafter the appeal was to be decided afresh after affording the parties an opportunity of being heard. The parties were directed to appear before the learned first appellate court on 28.2.1995. The appeal came up before the learned District Judge for hearing on 28.2.1995. It was mentioned in the order that none appeared for the appellant, however, in the order-sheet it is mentioned that Sh. Y.P. Sood, Advocate appeared vice counsel for the appellant. The learned District Judge directed the matter to come up on 15.3.1995. The matter came up before the learned District Judge on 15.3.1995. The learned District Judge passed the following order in application preferred under order 6 rule 17 of the Code of Civil Procedure which reads thus: “This application is filed by the respondent under order 6 rule 17 of the Code of Civil Procedure for amendment of the written statement. Inspite of the order of the Hon’ble High Court in judgment dated January 3, 1995, none appeared on behalf of the applicant nor the applicant personally appeared. Therefore, it seems that the applicant is not interested to pursue the application for amendment. Hence, the application for amendment stands rejected. The application stands disposed of accordingly.” 4 It appears that none had appeared on behalf of the appellant/defendant. Thereafter the arguments were heard and the judgment was pronounced by the learned District Judge on 15.3.1995 itself. A challenge has been laid to the judgment and decree passed by the learned District Judge dated 15.3.1995. The Regular Second Appeal was admitted on 19.8.1996. Though this appeal was to be admitted on substantial question of law framed at the time of admission on 19.8.1996, however, this Court vide order dated 13.6.2007 in the interest of justice held that questions No.1 to 4 require consideration by this Court. Mr. Ankush Dass Sood, , Advocate had strenuously argued that the judgment passed by the learned District Judge dated 15.3.1995 is not sustainable in the eyes of law. He had supported the judgment of the trial court. Mr. Bhupender Gupta, Senior Advocate had supported the judgment dated 15.3.1995. I have heard the learned counsel for the appellant and perused the record meticulously. Question No.1: Mr. Ankush Dass Sood, Advocate had strenuously argued that the learned District Judge was bound to decide the application preferred by his client under order 6 rule 17 of the Code of Civil Procedure seeking amendment of written statement. This Court while remanding the case to the first appellate court on 3.1.1995 had directed the parties to appear before it on 28.2.1995. It is apparent 5 from the record that in the column where the presence of the learned Advocate is marked, none had appeared on behalf of the appellant before the first appellate court, however, in the main order it is mentioned that Sh. Y.P. Sood, Advocate had appeared. However, at the time when the application under order 6 rule 17 of the Code of Civil Procedure was taken up by the learned District Judge on 15.3.1995, none had appeared on behalf of the applicant. The application was rejected by the learned District Judge on 15.3.1995. Mr. Sood had vehemently argued that in fact his client was eager to contest the application but she was under impression that this Court had remanded the matter to the trial court on 3.1.1995 and for this reason; she could not appear before the learned first appellate court. This contention cannot be accepted by this Court. There was a specific direction to the parties to appear before the learned District Judge on 28.2.1995 and in fact presence of Sh. Y.P. Sood, Advocate was marked as is evident from the order dated 28.2.1995. The appellant had not appeared before the learned District Judge on 15.3.1995 when the application under order 6 Rule 17 of the Code of Civil Procedure and main matter were taken up. The rejection of the application in these circumstances by the learned District Judge cannot be faulted with. Thus, the question No.1 is decided against the appellant. Questions No.2 and 3: Since both the questions of law are inter-connected, therefore, the same can be conveniently discussed together. 6 The case set out by the appellant before this Court and the courts below is that the appellant is the daughter of Sh. Jagtu. PW-1 has categorically denied that the appellant was daughter of Sh. Jagtu. PW-3 had also categorically stated that Jagtu had no issue. Mr. Ankush Dass Sood, Advocate had strongly relied upon Ex. DW-4/C i.e. copy of the Birth and Death Register whereby one Douri has been shown as daughter of Jagtu son of Harku. This entry was made on 21.11.1926. The name of the appellant is Reshmu wife of Karam Dass. The appellant has failed to connect that Douri is in fact Reshmu. If the appellant was aware that there is some mistake in the name in the register, the same could easily be got corrected by submitting an application to the competent authority. DW-1, Sh. Karam Dass had categorically admitted in his statement that he knew at the time of filing of the written statement that Smt. Reshmu was called Douri. This plea was not raised by the appellant in her written statement. The same was tried to be taken up by moving an application under section 6 rule 17 of the Code of Civil Procedure, but the same as observed hereinabove, was dismissed by the learned District Judge on 15.3.1995 itself. Mr. Sood had strongly relied upon Dolgobinda Paricha versus Nimai Charan Misra and others, AIR 1959 SC 915 and on that basis had submitted that the relationship of the appellant with Jagtu as father was conclusively proved. Their Lordships of the Hon’ble Supreme Court had opined as under: “We proceed to consider the second question first. The Evidence Act states that the expression "facts in issue" 7 means and includes any fact from which either by itself or in connection with other facts the existence, non- existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follow; "evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; and (2) all documents produced for the inspection of the Court. It further states that one fact is said to be relevant to another when the one is connected with the other in any one of the ways referred to in the provisions of the Evidence Act relating to the relevancy of facts. Section 5 of the Evidence Act lays down that evidence may be given in any suit or proceeding of the existence or non-existence of every, fact in issue and of such other facts as are declared to be relevant and of no others. It is in the context of these provisions of the Evidence Act that we have to consider S. 50 which occurs in Chapter II, headed "Of the Relevancy of Facts". Section 50, in so far as it is. relevant for our purpose, is in these terms : "Section 50. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact". On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact. It states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the 8 section clearly bring out the true scope and effect of the section. It appears to us that the essential requirements of the section are - (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant & may, therefore, be proved. We are of the view that the true scope and effect of section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309 : (AIR 1943 Cal 76 at p. 80). ''It is only 'opinion' is expressed by conduct which is made relevant. This is how the conduct comes in. The offered item of evidence is 'the conduct', but what is made admissible in evidence is the opinion, the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see 9 if this conduct establishes any 'opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'. When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, 'the opinion of a person'. It still remains for the Court to weigh such evidence and come to its own opinion as to the 'factum probandum'- as to the relationship in question." We also accept as correct the view that S. 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship : 'Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201. In the present case the ingredients of section 50 of the Evidence Act, 1872 are not proved by the appellant. None of the witnesses had the special knowledge about the relationship of the appellant with Jagtu. The best evidence to support the version of the appellant that she was the daughter of Jagtu was her own statement. The appellant has not stepped into the witness box. The appellant has not assigned any reason why she has not stepped into the witness box to prove that she was the daughter of Jagtu. Her husband DW-1 Karam Dass had appeared to substantiate that appellant was daughter of Jagtu. DW-1 at least could state whether he had seen Jagtu at the time of their marriage or not. Jagtu was alive at the time when the marriage was solemnized between Reshmi and DW-1. The other witness is DW-2 Sh. Lachhi Ram. He 10 had admitted that Jagtu died issueless. In the absence of any document placed on record showing relationship of father and daughter between Jagtu and the appellant, it is not sufficient to infer the relationship as projected by the appellant. The appellant’s own witness DW-2 has denied the relationship as noticed herein-above in the earlier part of the judgment. Mr. Sood had also argued that the learned first appellate court has misconstrued and misinterpreted the documents placed on record. In copy of jamabandi for the year 1975-76, the possession of predecessor in interest of respondent No.1 Rattan Lal has been shown. This position is based on the mutation of inheritance sanctioned on 25.9.1959 vide Ex.PG in favour of Dasu. Ex.PD, copy of mutation dated 4.5.1951 reflects that Jagtu died issueless. If Jagtu had died issueless, the plea of appellant that she is the daughter of Jagtu is false. The matter can be viewed from another angle. Jagtu died in the year 1950 and at that time the daughters were not entitled to succeed to the property of the father. Consequently, the findings recorded by the trial court and first appellate court to the effect that the appellant was not the daughter of Jagtu are upheld and need not be interfered with by this Court. Question No.4: The trial court has taken a view that since the Revenue Officer passed an order on 3.7.1980, the same was required to be challenged within a period of one year under Article 100 of the 11 Limitation Act, 1963. There is sufficient material on record to conclusively establish that after the death of Janglu, Dassu had inherited the land and thereafter the same was inherited by Devnu, predecessor in interest of Rattan Lal. DW-1 had categorically admitted the fact that initially Dassu had inherited the land from Janglu and after the death of Dassu, Devnu had inherited the land. It is settled law that if an adverse entry is made against a person, who is in actual possession of the property as is in the present case, despite the adverse entry made in the revenue record, he is under no obligation to bring the suit. He can bring the suit, the moment his rights are actually jeopardized by the action or assertion of the defendant and thereafter the suit is to be brought within three years. In the present case the adverse entries were made on 3.7.1980 and the suit was filed on 20.2.1982 within a period of limitation. Moreover, in the present case the mutation has been attested in favour of the appellant behind their back. DW-3 had also admitted in his cross-examination that after the death of Jaglu, Dassu had inherited the property and thereafter Devnu had inherited the same. He had also admitted that on the report No. 122 and 1221, no officer has put his signatures. A Division Bench of the Punjab and Haryana High Court in Niamat Singh versus Darbari Singh and others, AIR 1956 Punjab 230 has held that if an adverse entry is made against a person who is in actual physical possession of the property and if he continues to retain possession of the said property despite this entry in the 12 revenue papers, he is under no obligation to bring the suit. If, however, his rights are actually jeopardized by the actions or assertions of the defendant then he must take proceedings within limitation. Their Lordships have held as under: “The language of Article 120 makes it quite clear that the period of six years commenced from the date on which the right to sue accrued, that is the right to bring the particular suit with reference to which the plea of limitation was raised. If an adverse entry is made against a person who is in actual physical possession of the property and he continues to retain possession of the said property despite this entry in the revenue papers, he is under no obligation to bring a suit. If, however, his rights are actually jeopardized by the actions or assertions of the defendant then he must take proceedings within six years from the date of such actions or assertions: Allah Jilai v. Umrao Hussain, 36 AII 492: (AIR 1914 AII 184 (E). Bhagwan Baksh Singh v. Sant Prasad, 54 Ind Cas 317: (AIR 1919 Oudh 80) (F) and Riasat Ali v. Iqbal Rai, 16 Lah 659: (AIR 1935 Lah 827) (G). To put in a slightly different language, the time beings to run not from the date on which an adverse entry is made but from the date on which there is a fresh denial of the plaintiff’s right : Muhammad Hanif v. Ratan Chand, 3 Lah 43 : (AIR 1922 Lah 94) (H).” Similarly, another Bench of the Punjab and Haryana High Court has held in Ibrahim v. Smt. Sharifan, AIR 1980 Punjab and Haryana 25 if the plaintiff is in exclusive possession then the right to sue accrues when defendant actually threatens to take forcible 13 possession and not when mutation was sanctioned in his favour. Their Lordships have held as under: “While controverting the aforesaid findings of the learned single Judge, it was contended by Mr. Aggarwal, learned counsel for the appellant, that cause of action arose to the plaintiff in April, 1969, when the defendant actually threatened to take forcible possession of the land from the plaintiff and that mere sanction of the mutation with respect to half share of the land in dispute in the name of the defendant did not give any cause of action to the plaintiff, especially when he had continued to be in exclusive possession of the land without any interference of any kind by the defendant. Mr. Kapur, learned counsel for the respondent, that a cloud was actually cast on the right of the plaintiff in the year 1957 when after the death of Akbar mutation of inheritance was sanctioned in favour of the plaintiff, the defendant and their mother in equal shares; that the right to sue first accrued to the plaintiff on the date when the said mutation was sanctioned and that the suit having been filed beyond the period of three years was clearly barred by time. After giving our thoughtful consideration to the entire matter, we find that there is considerable force in the contention of the learned counsel for the appellant. It may be observed at the outset that the word ‘first’ occurring in Art. 58 of the Act is of no significance at all for deciding the issue of limitation so far as the facts of the case in hand are concerned as the main point that requires 14 determination is whether mere entry of a mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not. There is no dispute that mutation was sanctioned in favour of the defendant after the death of Akbar and in case such an entry furnishes a cause of action, then certainly the suit would be barred by limitation. Even Mr. Aggarwal very fairly conceded this proposition. But what was argued by him was that mere entry of a mutation did not furnish any cause of action and in support of his contention he relied on a Division Bench judgment of this Court in Namat Singh v. Darbari Singh etc., (1956) 58 PLR 461. In our view, the contention of the learned counsel has considerable force. The plaintiff continued to be in possession of the entire property even after the sanction of the mutations in the name of the defendant after the death of her father Akbar or her mother Smt. Nanhi or her uncle Bhiku. The defendant was never given any share in the rent, nor was she given any produce out of the land of her share. In this situation, no cloud was cast on the title of the plaintiff by mere entry of the mutation in the name of the defendant. Further, there is no proof on the record to show that before April, 1969, by any act or assertion of the defendant the right of the plaintiff was ever actually jeopardized. The defendant is occupying a house in the village. The assertion of the plaintiff is that it was given by him to her out of compassion, while the plea of the defendant is that she occupied it as of right. Be that as it may, the fact remains that so far as the agricultural land is concerned, the defendant after the sanction of the mutations never 15 asserted her right to her share in the land in dispute, nor did she ever get any rent or produce and that it was in the year, 1969 that she tried to assert her right and interfere with the possession of the plaintiff. In this situation, mere entry of a mutation in the name of the defendant would not furnish any cause of action to the plaintiff. This view of ours finds full support from the judgment of the Division Bench in Niamat Singh’s case. Thus, we do not agree with the learned single Judge that the cause of action arose when the mutation was entered in the name of the defendant and consequently, reverse the finding on issue No.4 and hold that the suit filed by the plaintiff is within limitation.” In view of the observations made hereinabove and the law laid down by the Punjab and Haryana High Court, which