IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 377 of 2006 Date of Decision : December 18, 2009 Sh. Parkash Chand & others Appellants Versus Sh. Gian Chand & others Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellants : Mr. Bimal Gupta, Advocate, for the appellants. For the respondent s : Mr. Rakesh Jaswal, Advocate, with Mr. Vinod Gupta, Advocate, for the respondents. Sanjay Karol, J. (Oral) The plaintiff-appellant herein is aggrieved of the concurrent finding of fact recorded by the Courts below. In the present Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, judgment and decree dated 12.1.2006 passed by the District Judge, Hamirpur, H.P. in Civil Appeal No. 65 of 2005, confirming the judgment and decree dated 27.4.2005 passed by the Civil Judge (Senior Division), Hamirpur, H.P. in Civil Suit No. 288 of 1996 has been assailed. The appellants herein are the legal representatives of the original plaintiff Smt. Parwati Devi and the respondents herein are 1 Whether reports of Local Papers may be allowed to see the judgment? 2 the legal representatives of the original defendant Sh. Lachhman Dass. The original parties are referred to as the plaintiff and defendant hereinafter. Plaintiff filed a suit in the Court of Civil Judge (Senior Division), Hamirpur, H.P. pleading that as per the Jamabandi (Revenue Record) for the year 1990-91, she is a co-sharer in possession of the land comprising Khata No. 121 min, Khatoni No. 140, Khasra No. 776/82, measuring 1 Kanal 17 Marlas, situated in Tika Yanwin, Mouza Mewa, Tehsil Bhoranj, District Hamirpur, H.P. (hereinafter referred to as the suit land). Defendant started raising construction thereupon hence plaintiff prayed for a decree for possession after demolition of the structure raised, if any. The defendant resisted the suit pleading existence of the structure on the suit land since the time of his ancestors, thus having perfected their title by way of adverse possession. Based on the pleadings of the parties the trial Court framed the following issues: “1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for? OPP 2. Whether in the alternative, the plaintiff is entitled to the decree for possession by way of demolition as prayed for? OPP 3. Whether the plaintiff has no cause of action? OPD 4. Whether the plaintiff is estopped from filing the suit by her act and conduct? OPD 3 5. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD 7. Whether the defendant has become owner of the land in suit by way of adverse possession as alleged? OPD 8. Relief.” Opportunity to lead evidence was afforded to the parties. Appreciating the material on record, the trial Court held that keeping in view the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, the defendant being a tenant with respect to 1 Kanal 10 Marlas out of the suit land, had perfected his title in accordance with law, which fact stood affirmed by the judgment and decree dated 24.12.1987 passed by the District Judge, Hamirpur, H.P. in Civil Appeal No. 51 of 1984 and affirmed by this Court in RSA No. 39 of 1988, decided on 31.8.1994. The previous litigation was between the defendant and Sh. Ram Singh a co-owner of the suit land. Hence the plaintiff was not entitled to the reliefs prayed for and consequently the suit was dismissed by the Civil Court in terms of judgment and decree dated 27.4.2005. The plaintiff’s appeal assailing the same was dismissed by the District Judge, Hamirpur, H.P. in terms of the impugned judgment and decree dated 12.1.2006 whereby the findings recorded by the trial Court stood affirmed. 4 The present appeal stands admitted on the following substantial question of law: “Whether the finding returned by the two Courts below that the respondent-defendant was earlier a tenant and has now acquired ownership of the suit land is illegal, especially when no such plea has been raised?” I have heard Sh. Bimal Gupta, learned counsel and Sh. Rakesh Jaswal and Sh. Vinod Gupta, learned counsel for the parties and also perused the record. The judgment dated 24.12.1987 passed by the District Judge, Hamirpur, H.P. in Civil Appeal No. 51 of 1984 is Ext. DA and the judgment dated 31.8.1994 passed by this Court in RSA No. 39 of 1988 is Ext. DX. The said decisions have attained finality, hence in terms of the said judgments the defendant herein has been declared to be owner in possession of 1 Kanal 10 Marlas of the instant suit land. Perusal of the same makes it abundantly clear that the subject matter of the previous litigation and the present suit is same and similar. Evidently the plea of tenancy has not been taken by the defendant in his written statement. But however the fact of the matter is that on 16.3.2005, the defendant moved an application under Order 8 Rule 1-A(3) of the Code of Civil Procedure seeking permission to place on record, in evidence the certified copy of the judgments dated 24.12.87 and 31.8.1994, which inspite of the 5 plaintiff’s opposition was allowed by the Court below vide order dated 4.4.2005 in the following terms: “This order shall dispose of application under order 8 rule 1-A(3) C.P.C. bearing C.M.A. No. 58/05 for granting permission to file and tender in evidence certified copy of judgment passed by the Learned District Judge Hamirpur in civil appeal No. 51 of 1984. Plaintiff contested the application by filing reply wherein it was stated that the defendant did not produce judgment in question at earlier stage and said judgment was not relevant for adjudicate the matter in question. I have heard both the parties and gone through the record carefully. In this suit defendant has already placed in evidence judgment passed by the Hon’ble High Court in RSA No. 39 of 1988 which is Ext. DX on record. The present judgment in question has been up held by the Hon’ble High Court in the aforesaid judgment DX. Therefore, in order to have better idea of the facts, to my mind the order passed by the learned District Judge is relevant. On behalf of plaintiff it was argued that in the aforesaid civil suit judgment which was relied upon by the defendant, present defendant was not a party. To my mind the legal value of this judgment is to be discussed on merits. If it would not be applicable to the present case then certainly defendant would not get its benefit. One fact is clear that in this judgment qua 1 kanal 10 marlas of the suit land, defendant was declared owner in possession. It is separate issue whether this finding is conclusive and binding on Parwati Devi plaintiff or not. It would be decided on merits. Therefore, by placing on record the judgment which was passed by learned District Judge 6 Hamirpur, H.P. on dated 24.12.1987 is only supplementary in nature as it would help to clarify judgment passed by the Hon’ble High Court, copy of which is Ext. DX. Since the judgment of Learned District Judge merged in the judgment passed by the Hon’ble High Court Ext. DX thus, no prejudice would be caused to the plaintiff if this judgment is ordered to be placed on record, hence for aforesaid reason the application is allowed and Ld. counsel for defendant tendered in evidence this judgment as Ext. DA. Put up for final arguments on 19.4.2005.” During trial the defendant had also led oral evidence with respect to prior litigation to which there was no objection at all. This is evident from the statements of the witnesses Smt. Parwati Devi (PW-1), Sh. Roop Chand (PW-2), Sh. Janak Singh (PW-3) and defendant Sh. Gian Chand (DW-1). Thus the findings that the defendants right as a tenant had fructified into ownership cannot be said to be illegal. In the previous litigation the defendant has already been neld to be owner in possession of the suit land to the extent of 1 Kanal 10 Marlas hence in the absence of plaintiff having any right therein the suit was rightly dismissed by the Courts below. Mr. Bimal Gupta, learned counsel has emphatically argued that evidence beyond pleadings could not have been looked into by the Courts below. In his support he has referred to the decisions reported in Firm Sriniwas Ram Kumar versus Mahabir Prasad and others, A.I.R. (38) 1951 SC 177; Vinod Kumar Arora versus Surjit 7 Kaur, (1987) 3 SCC 711; Abubakar Abdul Inamdar (Dead) by LRs and others versus Harun Abdul Inamdar and others, (1995) 5 SCC 612 and Messrs. Trojan & Co., versus RM. N.N. Nagappa Chettiar, A.I.R. 1953 SC 235 [Vol. 40 C.N. 56]. The decisions are clearly distinguishable as in the instant case not only evidence with respect to the prior litigation was led by the defendant but also the Court had specifically allowed the defendant to place on record the judgments passed with respect thereto. Mr. Bimal Gupta, learned counsel has referred to the decision reported in Gopalkrishna Gupthan versus Ammalu Ammal and others, AIR 1972 Kerala 196 (V. 59 C 58) to contend that the judgments rendered in the earlier litigation cannot be looked into as plaintiff was not party to the same. The contention needs to be rejected keeping in view the decision rendered by the Apex Court in Tirumala Tirupati Devasthanams versus K. M. Krishnaiah, AIR 1998 SC 1132 wherein it has been held as under: “9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kango v. Narayan Devji Kango, AIR 1954 SC 379, speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter partes is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. 8 Again B. K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram, AIR 1954 SC 606 held that a previous judgment not inter partes, was admissible in evidence under Section 13 of the Evidence Act as a ‘transaction’ in which a right to property was ‘asserted’ and ‘recognised’. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini, (1992) ILR 29 Cal 190 (198)(PC) that a previous judgment, not inter partes was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh, (1895) ILR 22 Cal 533 (PC) by Sir John Woodroffe in his commentary on the Evidence Act (1931, p. 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sunder, AIR 1934 PC 157: 61 IA 286.” The question of law is answered accordingly. In view of the aforesaid discussions I find no illegality, perversity or impropriety in the impugned judgment. The appeal is accordingly dismissed. (Sanjay Karol), Judge. December 18, 2009 (PK)