IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 105 alongwith RSA No. 106 of 2000. Judgment reserved on : 20.4.2010 Date of decision : May 31, 2010 1. RSA No. 105 of 2000 Hardas Singh and others ..Appellants. Vs Sarwan Singh and others ..Respondents. 2. RSA No. 106 of 2000 Hardas Singh and others …Appellants. Vs Vidya Devi Dhillon and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellants : Mr. Ashok Sud, Advocate. For the respondents : Mr. H.K.Bhardwaj, Advocate for respondents No.1 to 3 & 4(a) in RSA 105 of 2000 and for respondent No. 1(a) in RSA No. 106 of 2000 Kuldip Singh , Judge This judgment shall dispose of RSA No. 105 of 2000 and RSA No. 106 of 2000. RSA No. 105 of 2000 2. This appeal has been directed against the judgment, decree dated 20.9.1997 passed by the learned Additional District Judge (I), Una in Civil Appeal No. 31/92/91 affirming judgment, decree 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 dated 7.10.1991 passed by the learned Sub Judge 1st Class (I) Una in Case No. 210/1987. 3. The facts in brief are that respondents had filed a suit for declaration with consequential relief of permanent prohibitory injunction that they alongwith others are owners in possession as vendees of land measuring 2 Kanals 10 Marlas comprised in Khasra No. 10557/1351 min (1-17), 1156 (0-13) vide jamabandi 1978-79 and entries in the cultivation column in the name of appellants as tenants are illegal, null and void. The entry of tenancy in favour of the appellants is a mere paper entry and same confers no right on the appellants nor the same is binding upon respondents. The appellants never came in possession of the suit land nor they were inducted as tenants. The appellants on the basis of wrong entry are threatening to take forcible possession of the suit land. In these circumstances, suit was filed in which prayer in alternative for possession was also made. 4. The suit was contested by the appellants on the grounds of non-joinder , maintainability, improper signing and verification of plaint. The respondents are not in possession of the suit land. On the contrary, the appellants are in possession as tenants on payment of rent since the time of their ancestors, before the appellants their father was tenant on the suit land and after his death appellants are in possession of the suit land as tenants at will. The entries in their favour are correct. There is also a cattle shed and cane crusher of the appellants on the suit land. In replication, respondents controverted the stand taken by the appellants and reiterated their own case. 5. On the pleadings of the parties the following issues were framed:- 3 1. Whether the plaintiffs are owners in possession of suit land? OPP. 2. Whether suit is bad for non-joinder of necessary parties ? OPD. 3. Whether the plaint is not properly verified and signed as alleged, if so, its effect? OPD. 4. Whether the suit is not maintainable as alleged? OPD 5. Relief. The issue No.1 was answered in favour of the respondents and issues No.2 to 4 were answered against the appellants and the suit was decreed by the learned Sub Judge on 7.10.1991. In appeal, the learned Additional District Judge (I) Una, on 20.9.1997 upheld the judgment, decree dated 7.10.1991. The appellants have assailed the judgment, decree dated 20.9.1997 in second appeal which has been admitted on the following substantial questions of law: 1. Whether the learned court below has committed error of law by not framing specific issue of Res-judicata which resulted in wrong findings regarding binding nature of judgment dated 27.10.89 ( Ex.P5)? 2. Whether long continuous entries of possession and tenancy recorded in Jamabandi since 1963-64 can be disbelieved only on the ground that Rapat Rojnamcha of first entry has not been produced? 3. Whether civil court has jurisdiction to try and determine the question of Tenancy of agriculture land in view of full court decision of this Court. RSA No. 106 of 2000 6. The appellants were defendants in case No. 196 of 1987 which was dismissed by the learned Sub Judge 1st Class (I), Una on 16.1.1991 but judgment and decree dated 16.1.1991 were reversed by the learned Additional District Judge (I), Una on 20.9.1997 in Civil Appeal No. 15/91 RBT No. 195/94. 4 7. The facts, in brief, are that respondents had filed a suit for declaration that they are owners in possession of land measuring 4 Kanals 19 Marlas comprised in Khewat No. 532 min, Khatauni No. 1788, 1790 bearing Khasra Nos. 12588/3/89(3-6), 11265/3187(1-13) vide jamabandi for the year 1978-79 situated in village Kungrat, H.B.No. 527 Tehsil and District Una. The entries in the column of possession of appellants as tenants are wrong with consequential relief of permanent injunction or in the alternative for possession. 8. The further case of the respondents is that suit land is possessed by them being vendees as hissadars. The appellants No.1 to 3 or their predecessor-in-interest have no right, title or interest nor they came in possession of the suit land much less as tenants. The entries in the name of appellants as non-occupancy tenants are wrong, incorrect and baseless. The respondents came to know about these revenue entries a month prior to the filing of the suit but, however there was no interference, the appellants were asked, they admitted the claim of respondents, but a month prior to the institution of the suit the appellants resiled from their commitment and for the last 15 days before institution of the suit, appellants started extending threats to interfere in the possession of the respondents on the suit land. On these allegations, the respondents filed the suit. 9. The appellants contested the suit and took preliminary objections of non-joinder of necessary parties, improper verification. On merits, the possession of the respondents on the suit land was denied. It was alleged that predecessor-in-interest of the appellants was inducted as tenant at will on payment of rent by owners, he remained in possession of the suit land and after his death, the 5 appellants succeeded to his tenancy rights. The appellants defended the revenue entries. A plea of estoppel has also been taken on the ground that respondents are seeing the possession of the appellants on the suit land, therefore, they are estopped from filing the suit in view of their conduct. The respondents filed a replication and denied the case set-up by the appellants in the written statement. 10. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners in possession of suit land as alleged? OPP. 2. Whether suit is bad for non-joinder of necessary parties ? OPD. 3. Whether suit is not maintainable as alleged ? OPD 4. Relief. The issue No.1 was answered that respondents are owners alongwith others but not in possession. It was held that issues No.2 and 3 were not pressed and the suit was dismissed on 16.1.1991. The respondents filed appeal against the decision dated 16.1.1991, the learned Additional District Judge allowed the appeal on 20.9.1997 of the respondents and set-aside the judgment, decree dated 16.1.1991 and decreed the suit of the respondents. Hence, the second appeal by the respondents which has been admitted on the following substantial questions of law:- 1. Whether the learned court below has committed error of law by not framing specific issue of res-judicata which resulted in wrong findings regarding binding nature of judgment dated 27.10.89 (Ex.P-5) ? 6 2. Whether long continuous entries of possession and tenancy recorded in Jamabandi since 1963-64 can be disbelieved only on the ground that Rapat Rojnamcha of first entry has not been produced? 3. Whether civil court has jurisdiction to try and determine the question of tenancy of agriculture land in view of full court decision of this court ? 11. I have heard Mr. Ashok Sud, Advocate, learned counsel for the appellants and Mr. H.K.Bhardwal, Advocate, learned counsel for respondents No.1 to 3 and 4(a) in RSA No. 105 of 2000 and counsel for respondent No. 1(a) in RSA No. 106 of 2000 and I have also gone through the record. It has been submitted by the learned counsel for the appellants that the Courts below have committed error of law by not framing the issue of resjudicata which resulted wrong findings regarding the binding nature of judgment dated 27.10.1989. The consistent long revenue record supports the case of the appellants that they are in possession of the suit land as tenants. But the courts below have erred in not relying revenue record since 1963-64 on the ground that change reflected in the first entry has not been proved through rapat rojnamcha. It has also been submitted that Civil Court has no jurisdiction to determine the question of tenancy in view of Chuhniya Devi Vs. Jindu Ram, (1991) 1 S.L.C. 223. The learned counsel for the respondents has supported the impugned judgment, decree. 12. The substantial questions of law No. 1 to 3 in RSA No. 105 of 2000 and substantial questions of law No. 1 to 3 in RSA No. 106 of 2000 are interconnected, therefore, all substantial questions of law in both the appeals are taken collectively for disposal. In RSA No. 105 of 2000 copy of judgment dated 27.10.1989 in Civil Suit No. 73 of 1987 7 is Ex.D6 and not Ex.P-5 as mentioned in substantial question of law No.1. In fact, Civil Suit No. 73 of 1987 was filed by the appellants herein against Mohan Singh etc. and copy of the plaint of Civil Suit No.73 of 1987 is Ex.PY. Ex. PX is the statement of Darshan Singh S/o Faquiria in Civil Suit No. 73 of 1987, Ex.D-1 is the copy of Khatauni Istmal for the year 1984-85, Ex.D-2 is the copy of jamabandi for the year 1978- 79, Ex.D-3 is the copy of jamabandi for the year 1973-74, Ex.D-4 is the copy of jamabandi for the year 1968-69, Ex.D-5 is the copy of jamabandi for the year 1963-64, Ex.D-7 is the copy of judgment in Civil Suit No. 196 of 1987 Dilawar etc. Vs. Hardass Singh decided on 16.1.1991 by Sub Judge 1st Class (I), Una. In lower appellate court in C.A. No. 31/92/91 Ex.PX judgment dated 18.5.1993 in Civil Appeal No. 211 of 1989 was taken on record by way of additional evidence. 13. In RSA No. 106 of 2000 Ex.PW-1/A is the copy of Special Power of Attorney of Dilawar Singh Chaudhary in favour of Mohan Singh S/o Karam Singh. Ex.P-4 is the copy of plaint in Civil Suit No. 73 of 1987 decided on 27.10.1989, Ex.P-5 is the copy of statement of Darshan Singh S/o Sh. Faquiria in Civil Suit No. 73 of 1987 decided on 27.10.1989, Ex.D-1 is the copy of jamabandi for the year 1978-79, Ex.D-2 is the copy of jamabandi for the year 1973-74, Ex. D-3 is the copy of jamabandi for the year 1968-69, Ex.D-4 is the copy of jamabandi for the year 1963-64, Ex.D-5 is the copy of judgment in Civil Suit No.73 of 1987 decided on 27.10.1989 by learned Sub Judge (II) Una. In lower appellate Court in C.A. No. 15/1991 RBT No. 195/94 Ex. DX judgment dated 18.5.1993 decided by the learned District Judge, Una in Civil Appeal No. 211 of 1989 was taken on record by way of additional evidence. 8 14. The appellants had pleaded tenancy on land measuring 7 Kanals 19 marlas in Civil Suit No. 73 of 1987. Mohan Singh and Gurdev Singh respondents herein were defendants alongwith others in Civil Suit No.73 of 1987. The learned Sub Judge vide judgment dated 27.10.1989 held that appellants herein are tenants at will on land measuring 7 Kanals 19 Marlas which was the subject matter of Civil Suit No. 73 of 1987. It has been submitted on behalf of the learned counsel for the respondents that in the written statements filed by appellants in both the suits from which the appeals have arisen, they have not taken the plea of resjudicata nor there is an averment that they were held tenants on the suit land in previous judgment dated 27.10.1989. The foundation of resjudicata is not in the written statement in both the suits nor there is any evidence to this effect. It has been submitted on behalf of the respondents that in these circumstances, the appellants cannot be permitted to raise the point of resjudicata in the appeals. 15. The learned counsel for the appellants has submitted that the parties in both the suits were conscious about the fact that in the earlier judgment dated 27.10.1989 the appellants were held tenants on the suit land, the necessary documents such as plaint in Civil Suit No. 73 of 1987, judgment dated 27.10.1989 are on record in both the suits. On behalf of the appellants the effect of previous judgment dated 27.10.1989 was argued before the learned trial court and in the lower appellate Court. It has also been submitted on behalf of the appellants that since judgment dated 27.10.1989 and plaint of Civil Suit No. 73 of 1987 are on record, therefore, even in absence of plea in the written statement or issue of resjudicata it cannot be said that appellants are 9 not entitled to raise the plea of resjudicata. The learned counsel for the appellants has relied Gurbachan Singh and another Vs. Smt. Sansari Devi and others, 1995 (1) S.L.C. 88 in support of his contention wherein it has been held that the normal rule is that judgment, not inter-parties, is not binding on the person who is not a party to the suit but has high probative value and was relevant and admissible under Section 13 of the Evidence Act. He has also relied Sohan Singh Vs. Murti Rani and others (2008) 3 CCC 711 on the same principle. There is no dispute with the proposition of law laid down in Gurbachan Singh (supra) and Sohan Singh (supra) but the question in the present appeals is whether the judgment dated 27.10.1989 will apply as resjudicata in the two suits out of which the above appeals have arisen. 16. Assuming that appellants in presence of plaint of Civil Suit No. 73 of 1987 and judgment dated 27.10.1989 can raise the plea of resjudicata even without plea in written statement and an issue to this effect. In judgment dated 27.10.1989 in Civil Suit No. 73 of 1987 it is clear that suit was filed by Hardass, Jeet Singh, Darshan Singh all sonsof Faquiria against five persons namely Mohan Singh, Gurdev Singh both sons of Karam Singh, Smt. Naresh Kumari W/o Mohan Singh, Parkasho W/o Sarwan Singh and Darshan Singh S/o Kishan Singh. The memo of parties of judgment dated 7.10.1991 in case No. 210 of 1987 out of which RSA No. 105 of 2000 has arisen indicates that suit was filed by 20 persons including Mohan Singh and Gurdev Singh who were defendants in Civil Suit No. 73 of 1987. In Civil Suit No. 73 of 1987 though appellants herein were plaintiffs but out of several respondents in RSA No. 105 of 2000 only Mohan Singh and Gurdev 10 Singh were defendants in Civil Suit No. 73 of 1987. Thus, by no stretch it can be said that parties in Civil Suit No. 73 of 1987 decided on 27.10.1989 and in case No. 210 of 1987 decided on 7.10.1991 the parties were same or they were claiming through the parties in the earlier case No. 73 of 1987. In RSA No. 106 of 2000 almost same is the position. RSA No. 106 of 2000 has arisen out of case No. 196 of 1987 decided on 16.1.1991. The suit was filed by 19 persons against Hardass, Jeet Singh and Darshan Singh who are appellants in RSA No. 106 of 2000. The perusal of memo of parties in case No. 196 of 1987 and in judgment dated 27.10.1989 it is clear that the parties in two suits are not same nor all of them are claiming through parties in Civil Suit No. 73 of 1987. The Section 11 of the Code of Civil Procedure provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. In view of above discussion it is clear that parties in Civil Suits out of which RSA No. 105 of 2000 and RSA No. 106 of 2000 have arisen and in Civil Suit No. 73 of 1987 decided on 27.10.1989 are not same nor all the parties in RSA No. 105 of 2000 and RSA No. 106 of 2000 are claiming through parties in Civil Suit No. 73 of 1987 decided on 27.10.1989, therefore, judgment dated 27.10.1989 is not resjudicata in the present dispute between the appellants and respondents. 17. The substantial question of law No.1 in each appeal is with respect to not framing of specific issue of resjudicata by the trial Court. 11 The issue is framed on the basis of pleadings of the parties. The appellants in the written statements in the two suits have not specifically pleaded resjudicata. In these circumstances, the trial Court had committed no error in not framing the issue of resjudicata in each suit. In any case, the question of resjudicata has otherwise been considered and it has been found that judgment dated 27.10.1989 is not resjudicata in any suit out of which the above appeals have arisen. Thus taken from any angle, the substantial question of law No.1 in each appeal is decided against the appellants. 18. The appellants are relying on revenue record in the form of jamabandis commencing from 1963-64. It has been submitted that the long standing revenue entries are in favour of appellants. The names of appellants first time appeared in jamabandi for the year 1963-64. It is not the case of the appellants that earlier to the year 1963-64 their names were recorded in the jamabandi regarding the land in dispute. In other words, the change in the jamabandi in favour of appellants came for the first time in the year 1963-64. In these circumstances, it was incumbent upon the appellants to place relevant material on record to show on what basis change was effected in jamabandi for the year 1963-64 in their favour. In Durga (deceased) and others Vs. Milkhi Ram and others 1969 P.L.J. 105 it has been held by the Supreme Court that where the earlier revenue entries were changed in the later revenue entries and the change was effected without any mutation and there was no order of the revenue authorities showing how the change was made, although the presumption would be in favour of the later entries but that presumption was a rebuttable one and it would stand rebutted by the fact that the alteration in the later entries was 12 made unauthorisedly or mistakenly. In the present case no explanation has been given for effecting the change in the jamabandi for the year 1963-64 in favour of the appellants. In these circumstances, jamabandies for the year 1963-64 onwards do not carry presumption of truth in favour of the appellants and they cannot take benefit of such revenue record. The substantial question of law No.2 in each appeal is decided against the appellants. 19. In Chuhniya Devi Vs. Jindu Ram 1991 (1) S.L.C. 223 (FB) the following question was before the Full Bench : whether the civil court has jurisdiction, in respect of an order, (a) made by the competent authority under the H.P. Land Revenue Act, 1954, and b) of conferment of proprietary rights under section 104 of the H.P.Tenancy and Land Reforms Act, 1972, which has not been assailed under the provisions of these Acts.” The Full Bench answered the question as follows:- “(a) that an order made by the competent authority under the H.P.Land Revenue Act, 1954, is open to challenge before a civil court to the extent that it relates to matters falling within the ambit of section 37(3) and section 46 of that Act; and b) the civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under section 104 of the H.P.Tenancy and Land Reforms Act, 1972, except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with.” 20. In RSA No. 105 of 2000 which has arisen out of case No. 210 of 1987 the suit was for declaration with consequential relief of permanent prohibitory injunction and in alternative for possession. In case No. 196 of 1987 the suit was for declaration with consequential 13 relief of permanent prohibitory injunction and in alternative for possession. The case No. 196 of 1987 is involved in RSA No. 106 of 2000. The plaintiffs in both the suits have not challenged the conferment of proprietary rights under Section 104 of the H.P.Tenancy and Land Reforms Act, 1972, both the suits were based upon title, therefore,theCivil Court has the jurisdiction to try both the suits. The substantial question of law No.3 in both the appeals is decided against the appellants. 21. The learned lower appellate court has rightly appreciated the material on record. There is no perversity in the impugned judgments, decrees nor misconstruction, misinterpretation of material on record by lower appellate court has been established. There is no merit in both the appeals which are liable to be dismissed. 22. No other point was urged. 23. In view of the above discussion, both the appeals are dismissed with no order as to costs. ( Kuldip Singh ) Judge. May 31, 2010. (GR) 14 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 106 of 2000. Judgment reserved on : 20.4.2010 Date of decision : May 31, 2010 Hardas Singh and others …Appellants. Vs Vidya Devi Dhillon and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?2 For the appellants : Mr. Ashok Sud, Advocate. For the respondents : Mr. H.K.Bhardwaj, Advocate for respondent No.1 (a) Kuldip Singh , Judge For judgment, see judgment of date rendered in RSA No. 105 of 2000 titled as Hardas Singh and others Vs Sarwan Singh and others. (Kuldip Singh) May 31, 2010 Judge (GR) 2 Whether reporters of Local Papers may be allowed to see the Judgment ?