IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 584 of 2005 Judgment reserved on 22.7.2011 Date of decision:19.8.2011 Jeet Ram ….. Appellant. Vs. Sunder Lal and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. G.D. Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. For the Respondents : Mr. Ashok K. Sood, counsel for respondents No.1(a) to 1(c) and 2. Kuldip Singh, J . The defendant has filed the second appeal against judgment, decree dated 22.9.2005 passed by learned Addl. District Judge, Fast Tract Court, Shimla in RBT (FTC) No.24-S/13 of 2004/2002, affirming judgment, decree dated 3.12.2001 passed by learned Sub Judge Ist Class (II), Shimla in Civil Suit No.83/1 of 1987. The parties in the judgment are referred to as plaintiffs and defendant. 2. The facts in brief are that Khiali Ram, Anokhi Ram predecessor-in-interest of respondents No.1(a) to 1(c) together with Ram Rattan and Gian Chand had filed a suit for declaration, Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… permanent injunction against defendant that they are owners in possession of land comprised in khasra Nos.33,64, and 156/142, measuring 12 bighas and 19 biswas, situated in village Lajhoon. The revenue entries in the name of defendant are illegal, null and void. The consequential relief of permanent prohibitory injunction was also prayed against defendant. Khiali Ram died on 9.8.1988, his name was deleted. 3. The further case of the plaintiffs is that Mangla, maternal grand mother of defendant was owner of the suit land alongwith some other land which she owned in Mauja Kalikamlaroo. The suit land alongwith land at village Kalikamlaroo was mortgaged by Mangla in favour of Ram Dass and Lachhmi Ram for a consideration of Rs. 980/-, the mutation of mortgage was attested in favour of Ram Dass and Lachhmi Ram. In or about the year 1940 Mangla agreed to sell the land at village Kalikamlaroo and Lajhoon to Kali Ram father of plaintiffs No.1 to 3 and grand father of plaintiff No.4 by way of oral agreement for sale for Rs.1500/-. 4. On account of agreement for sale Kali Ram redeemed the mortgage created by Mangla by making payment of Rs.980/- to the mortgagees and obtained possession of the land of the two villages from them. Kali Ram paid Rs.1500/- to Mangla as price of the land in Chait 2003 BK and became owner in possession of the land in both the villages. In Baisakh 2003 BK, a memorandum (yadasht) was reduced to writing by Mangla in favour of Kali Ram. The defendant son of Sundroo and daughter of Mangla is being shown owner of the suit land, even though Kali Ram after redemption and …3… purchase of the suit land remained in possession of the suit land till his life upto to the year 1952. Thereafter plaintiffs became owners in possession of the suit land. The entries in favour of defendant in revenue record are wrong, who taking benefit of revenue entries is bent upon to dispossess the plaintiffs, which compelled the plaintiffs to file the suit. 5. The defendant contested the suit by filing written statement in which he took preliminary objections of maintainability, locus standi, estoppel. On merits, he denied the oral sale alleged by plaintiffs. He pleaded that mortgage was redeemed by Mangla. The plaintiffs have no right, title and interest in the suit land. The defendant put forward the plea of adverse possession in alternative. 6. The plaintiffs filed replication and reiterated their stand. The suit was decreed on 20.12.1994. In appeal, the learned Addl. District Judge on 8.9.2000 remanded the suit with the direction to reframe the issues. The following issues were reframed:- 1. Whether the plaintiffs are entitled to the relief of declaration to the effect that the revenue entries in favour of the defendant in respect of suit land measuring 12.19 bighas comprised in kh. No.33, 64 and 156/142 situated at village Lajhoon as illegal, wrong and not binding of the plaintiffs? OPP 2. Whether the plaintiffs are entitled to the relief of declaration to the effect, to be declared owner in possession of the suit land on the basis of oral purchase from Mangla and writing Yadashat executed in S.2003 Baisakh to this effect as prayed for? OPP 3. If issues No.1 and 2 are proved in affirmative, whether the plaintiffs are entitled for the relief of …4… permanent prohibitory injunction against the defendant ? OPP 4. Whether the defendant has become owner of the suit land by way of adverse possession? OPD 5. Whether the suit is barred by limitation? OPD 6. Whether the plaintiffs have no cause of action to file this suit? OPD 7. Whether the plaintiffs have no locus standi to file this suit? OPD 8. Whether the plaintiffs are estopped by their own acts and conduct to file the suit? OPD 9. Relief. 7. The issues No.1 to 3 were answered in affirmative, issues No.4 to 8 in negative and the suit was again decreed on 3.12.2001. The lower appellate Court on 22.9.2005 dismissed the appeal and affirmed the judgment, decree dated 3.12.2001, hence present appeal which has been admitted on following substantial questions of law:- 1. Whether Ext.PW-7/A (Ext.P-1) the alleged memorandum of sale allegedly having been executed on 27th Baisakh-2003, is not admissible in evidence for want of production of original because same has been produced from file of earlier litigation in Suit No.71/1 of 1970 as decided by learned Sub Judge Ist Class, Kandaghat and for want of seeking permission to lead secondary evidence. Neither it could be received in evidence nor any reliance could be placed thereon? 2. Whether presumption of correctness is attached to entries in revenue record Ext.DW-1/A to Ext. DW-1/D for the period from 1952-53 in which predecessor of appellant is recorded as owner in possession Ext.DW- 1/B, jamabandi for the year 1956-57, in which appellant …5… is recorded as owner in possession, jamabandi Ex.DW- 1/C, for the year 1992-93 in which appellant is recorded as owner in possession, therefore, in the absence of any rebuttal to the same, suit merits dismissal? 3. Whether respondents having set up agreement for sale pertaining to suit land allegedly having taken place in the month of Chait-2003 BK, for a sale consideration of Rs.1500/- in the absence of evidence for payment of sale consideration, memorandum Ext.PW-7/A cannot be relied upon? 4. Whether provisions of Transfer of Properties Act and Indian Registration Act were applicable to the transaction of suit land because Ext.PW-7/A is being claimed by respondents to be sale deed, therefore, it was required to be registered? 8. The plaintiffs filed an application under Order 41 Rule 27 read with Section 151 CPC for tendering in evidence Field Book pertaining to suit land comprised in old khasra Nos.33,64 min, 156/142 min depicting new khasra Nos.254, 291, 365, 367, 366 and 292 together with Missal Haquiat prepared during settlement showing ownership and possession of the plaintiffs over the suit land except khasra No.366 which has been recorded in possession of Irrigation and Public Health Department and khasra No.292 in possession of General Public. It has been stated that Field Book and Missal Haquiat have been prepared after the filing of the present appeal. The additional evidence is necessary in order to adjudicate the real controversy between the parties. Additional evidence application has been opposed by the defendant. According to defendant additional evidence is not relevant and appeal can be decided on the basis of available material on record. …6… 9. I have heard the learned counsel for the parties and have also gone through the record. The plaintiffs have filed application for additional evidence for proving Field Book and Missal Haquiat prepared during settlement after the filing of the appeal. The plaintiffs are claiming that additional evidence supports the case of the plaintiffs. The defendant has opposed the additional evidence application. The documents sought to be taken on record by way of additional evidence are subsequent to the filing of the suit, therefore, much importance cannot be given to such documents which have come into existence during the pendency of the suit. Moreover, the additional evidence will not assist this Court in order to adjudicate the real controversy between the parties. In these circumstances, the additional evidence is not required by this Court to decide the lis between the parties. The additional evidence application being CMP NO.962 of 2010 is dismissed. 10. The substantial question of law No.1 is taken up first for determination. Ex.P-1 is the certified copy of document dated 27th Baisakh-2003 which has been placed on record in the statement of PW-2 Ram Rattan. The admissibility of this document in evidence was objected when it was taken on record. PW-7 Inder Dutt Copyist has placed on record Ex.PW-7/A. It has been submitted that Ex.PW- 7/A and Ex.P-1 are copies of document Ex.DW-5/A of Suit No.71 /1 of 1970, decided on 14.8.1980 by learned Sub Judge Ist Class, Kandaghat in Suit Jeet Ram v. Narain Ram. Ex.DW-5/A was earlier mark ‘X’ in Suit No.71 /1 of 1970, Ex.PW-7/A or Ex.P-1 are inadmissible for want of primary evidence, more particularly when no …7… permission for leading secondary evidence to prove Ex.PW-7/A or Ex.P-1 has been taken. 11. Ex.PX/6 is the certified copy of statement of Jeet Ram in Civil Suit No. 71 /1 of 1970 which was tendered in evidence on 5.12.1994 in the present suit by counsel for plaintiffs as per his statement recorded by the learned trial Court. This document was taken on record without objection from defendant. In P.C. Purushothama Reddiar vs. S. Perumal, AIR 1972, SC 608, it has been held that it is not open to a party to object to the admissibility of documents which are marked as exhibits without any objection from such party. Therefore, statement of Jeet Ram defendant made by him in Civil Suit No.71 /1 of 1970 shall be deemed to have been duly proved. 12. In Ex.PX/6 Jeet Ram has stated that he identified his signature on mark ‘X’, whatever written in it he has heard and understood and the same is correct. Mark ‘X’ was later on exhibited as Ex.DW-5/A which in the present case is Ex.PW-7/A or Ex.P-1. Mark ‘X’ is the part of statement of Ex.PX/6 which is admissible under Sections 74, 77 of the Evidence Act being certified copy of statement recorded by Court. In Saudagar Singh alias Sagu vs. The State of Punjab, 1974, PLR 57 (DB) it has been held that the statements made by witnesses in the commitment proceedings admittedly come within the scope of public document as defined in section 74 of the Evidence Act. Certified copies thereof could be granted under section 76 and the said certified copies could be produced and used in proof of the contents of the same under section 77, Evidence Act. …8… Presumption of genuineness would also be available in respect of the said certified copies of their depositions under section 80, Evidence Act. 13. Jeet Ram defendant in statement Ex.PX/6 has admitted the correctness of mark ‘X’ which later on became Ex.DW-5/A in Civil Suit No. 71 /1 of 1970 and Ex.PW-7/A (Ex.P-1) in the present case, therefore, in view of statement Ex.PX/6 it can be safely concluded that Ex.PW-7/A (Ex.P-1) dated 27th Baisakh -2003 has been duly proved. Moreover, under section 58 of the Evidence Act facts admitted do not require proof. Once document dated 27th Baisakh 2003 Ex.PW-7/A (Ex.P-1) has been proved on record, therefore, it was not necessary for plaintiffs to prove these documents by taking recourse to secondary evidence. The learned counsel for appellant has cited some case law on secondary evidence but reference to that case law is not necessary once Ex.PW-7/A (Ex.P-1) is found to be proved even without the help of secondary evidence. The substantial question of law No.1 is accordingly decided against the appellant. 14. The substantial questions of law No.2,3 and 4 are interconnected, therefore, these substantial questions of law are taken up collectively for determination. Ex.DW-1/A is the copy of jamabandi 1952-53 showing Sundru mother of defendant owner in possession of khasra No.156. Jeet Ram is shown owner in possession of khasra No.156/142 in jamabandi Ex.DW-1/B 1956-57 as well as in jamabandi Ex.DW-1/C 1992-93. In jamabandi Ex.DW-1/D 1992-93 Jeet Ram is shown owner in possession of khasra Nos. 33,64. It has been submitted that presumption of truth is …9… attached to jamabandies. The learned counsel for defendant has relied Dumnu Ram v. Madan Lal and others, AIR 2002 HP 141 on the point when oral evidence is equally balanced then reliance can be placed on revenue record. The presumption attached to jamabandies is rebutable. The jamabandies are not documents of title. The question hinges on document Ex.PW-7/A (Ex.P-1). 15. The certified copy of judgment dated 14.8.1980 Ex.PX/7 in Suit No. 71 /1 of 1970 has been placed on record in the present case. In the earlier suit document Ex.PW-7/A (Ex.P-1) was also before the Court but it was exhibited as Ex.DW-5/A. Mangla had land in village Kalikamlaroo and village Lajhoon. The Suit No. 71 /1 of 1970 was filed by defendant with respect to land at one point of time owned by Mangla in village Kalikamlaroo. The suit land is in village Lajhoon which was also owned by Mangla. In Ex.PW-7/A (Ex.P-1), both the lands of Mangla owned in villages Kalikamlaroo and Lajhoon are involved. 16. In the context of document Ex.DW-5/A which in the present case is Ex.PW-7/A ( Ex.P-1) the learned Sub Judge in judgment dated 14.8.1980 Ex.PX/7 has held as follows:- “It is written in this document that Smt. Mangla had sold the suit land to Kali Ram in the year 1940 A.D. and she later on received its consideration of Rs.1500/- on 21st Chait 2003 B.K. 2003 comes to about the year 1946 A.D. In this document Smt. Mangla writes that she actually sold this land to Kali Ram in the year 1940. So it means that the sale was oral and this document was prepared only as a memorandum of sale and it is not a sale deed for which registration would be required. …10… There was no bar to oral sale at that time in Pepsu State.” The judgment dated 14.8.1980 has attained finality. 17. It has been submitted on behalf of the defendant that judgment Ex.PX/7 is of no help to plaintiffs. The land involved in the present case was not involved in the earlier suit. The parties in the earlier suit were also not the same. There is no issue of res judicata; hence judgment Ex.PX/7 cannot be relied in decreeing the suit of the plaintiffs. The Ex.PW-7/A (Ex.P-1) refers to transfer of land. The sale consideration is Rs.1500/- as per the document and therefore, in absence of registration of Ex.PW-7/A (Ex.P-1), the same cannot be read in evidence. There is no evidence of payment of Rs.1500/- to Mangla, hence it cannot be said that the suit land even orally was sold by Mangla to Kali Ram. 18. The Supreme Court in Ishwardas v. The State of Madhya Pradesh and others, AIR 1979 SC 551 has held that in order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim. Once the questions at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference. The plea of res judicata may be sustained, without anything more. …11… 19. In Gorie Gouri Naidu (Minor) and another v. Thandrothu Bodemma and others (1997) 2 SCC 552 the facts were that the High Court disposed of appeal wherein the High Court held that deed of gift was invalid in law. The Supreme Court held that By the impugned judgment, the Division Bench of Andhra Pradesh High Court has held that in view of such declaration of the said deed of gifts as invalid, no claim of title on the basis of the said deed of gift or family settlement can be made, such decision of the Division Bench is justified since the said earlier decision in declaring the deeds of gift as invalid, is binding between the parties. 20. The Supreme Court in K.Ethirajan (dead) by LRs. V. Lakshmi and others, AIR 2003 SC 4295 has held that the principle of res judicata under Section 11 of the Code of Civil Procedure is attracted where issues directly and substantially involved between same parties in the previous and subsequent suit are same-may be – in previous suit only part of property was involved when in subsequent suit, whole property is subject matter. 21. The defendant earlier had filed Suit No. 71 /1 of 1970 against many persons including Khiali Ram, Anokhi Ram, Ram Rattan and Gian Chand. After the deletion of name of Khiali Ram on account of his death Anokhi Ram became plaintiff No.1.in the present suit. In other words the parties in the present suit were also parties in Suit No. 71 /1 of 1970 decided by learned Sub Judge Ist Class, Kandaghat on 14.8.1980. In view of judgment Ex.PX/7 dated 14.8.1980 now defendant cannot be permitted to say that plaintiffs are not the owners of suit land. In the previous judgment dated …12… 14.8.1980 which has attained finality it has been held suit land was sold by Mangla to Kali Ram in the year 1940, she received sale consideration Rs.1500/- on 21 Chait 2003 BK corresponding to 1946 AD. The payment of sale consideration of Rs.1500/- to Mangla for purchasing the suit land and the other land has already been held in the judgment dated 14.8.1980. The document Ex.PW-7/A ( Ex.P-1) which was Ex.DW-5/A in Suit No. 71 /1 of 1970 has already been held to be a memorandum and not sale deed, hence being memorandum of past transaction does not require registration under the Registration Act. It has not been denied that in the year 1940, Section 54 of the Transfer of Property Act was not applicable in the area where the land in dispute is situated. Therefore, no writing for transferring the suit land was required. The oral sale of land was permissible. In these circumstances, Raghunath and others v. Kedarnath, AIR 1969 SC 1316 relied by learned counsel for the defendant is not applicable in the present case. 22. It has been proved on record that the suit land was sold to Kali Ram predecessor of plaintiffs but somehow mutation of sale was not attested in favour of Kali Ram or plaintiffs and for that reason name of predecessor-in-interest of the defendant or defendant regarding suit land was reflected in jamabandies Ex.DW-1/A, Ex.DW- 1/B and Ex.DW-1/D which are not documents of title. The presumption of truth attached to jamabandies Ex.DW-1/A, Ex.DW-1/B and Ex.DW-1/D has been rebutted from the fact that the suit land was already sold to Kali Ram predecessor of plaintiffs by Mangla predecessor of defendant and Kali Ram was put in possession of the …13… suit land therefore, entries of owner in possession of defendant or his predecessor in jamabandies Ex.DW-1/A, Ex.DW-1/B and Ex.DW-1/D are wrong. The defendant cannot take benefit of Ex.DW-1/A, Ex.DW-1/B and Ex.DW-1/D showing him or his predecessor as owner in possession of the suit land. In these circumstances Dumnu Ram (supra) is not applicable. The two Courts below have rightly appreciated the material on record. Thus, seen from any angle it has been proved on record that plaintiffs through their predecessor have purchased the suit land by way of oral sale which has been recorded in the memorandum Ex.PW-7/A (Ex.P-1) and they are in possession of the suit land. The substantial questions of law No.2,3 and 4 are decided against the defendant. 23. In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. August 19, 2011. ( Kuldip Singh ) (sks) Judge.