IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA Nos.201 of 1998 and 73 of 1999. Judgment Reserved on: 23.9.2008. Date of decision: 21.10.2008. 1. RSA No.201 of 1998. Bhagh Singh …Appellant Versus Harnam Singh & Others …Respondents 2. RSA No.73 of 1999. Harnam Singh …Appellant Versus Bhagh Singh & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 RSA No.201 of 1998. For the Appellant: Mr.Ajay Sharma, Advocate. For the Respondents: None. RSA No.73 of 1999. For the Appellant: Mr.R.K. Sharma, Advocate. For Respondent No.1: Mr.Ajay Sharma, Advocate. Dev Darshan Sud,J. Both these appeals are being disposed of by a common judgment as they arise out of the same judgment of the learned District Judge. Plaintiff Harnam Singh filed a suit for declaration to the effect that he is co-owner in 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 joint possession with defendant No.2 Bhag Singh and proforma defendant Karam Singh of land comprised in Khasra No.1044 (old 353), Khatta No.128, Khatauni No.383, measuring 0-17-19 HM, situated in Tikka and Mauza Chalwara, Tehsil Jawali, District Kangra, H.P. according to the Jamabandi for the year 1988-89. The allegations in the plaint are that defendant No.1 Smt.Vidya Devi on the basis of wrong revenue record prepared during settlement showing the plaintiff, defendants No.2 and 3 as Kabizan purchased the suit land from defendant No.1 on the basis of which a registered sale deed Ex.D-5, dated 24.11.1990 was executed and mutation No.285 was attested on these basis. The case set up by the plaintiff was that Babu Ram son of Ram Singh, the predecessor-in- interest of the plaintiff, defendant No.2 and proforma defendant No.3, was non-occupancy tenant upon the suit land and remained in possession as such. On the enforcement of the H.P. Tenancy and Land Reforms Act, the plaintiff, defendant No.2 and proforma defendant No.3 became owners, but on the death of Babu Ram who was Lamberdar, defendant No.2 stepped into the shoes of his father, and also became a Lamberdar. He misused his position and during settlement proceedings and in connivance with the revenue officials and Smt.Vidya Devi, defendant No.1, manipulated the revenue entries/record and had the entries changed to his advantage. The defendants 3 contested the suit on various grounds. They submitted that initially late Shri Babu Ram, father of the plaintiff and proforma defendant No.3 and defendant No.2, was in possession of the suit land. However, after his death they were recorded as Kabizan and denied the other allegations. On the issues as settled, the learned trial Court declared that the plaintiff alongwith defendant No.2 and proforma defendant No.3 as co-owners in joint possession of the suit land and the sale deed Ex.D-5 as illegal and not binding upon the rights of the plaintiff. Bhag Singh, defendant No.2, appealed against the judgment of the learned trial Court. The learned District Judge, on a consideration of the entire evidence, partly accepted the appeal holding that defendant No.2, plaintiff Bhag Singh and proforma defendant No.3 Karam Singh, as co-owners in joint possession of the suit land and sale deed Ex.D- 5, dated 14.11.1990 as valid and subsisting and binding on the interests of the parties. A decree for injunction was granted restraining Bhag Singh from changing the nature of the suit land or dispossessing the plaintiff and proforma defendant No.3 till the suit land is partitioned in accordance with law. Both Bhag Singh, defendant No.2, and Harnam Singh, plaintiff, being dissatisfied by the judgment have appealed to this Court. 4 Taking up RSA No.201 of 1998 (defendants appeal) first, it was admitted on the following substantial questions of law:- “1. Whether Civil Court has got jurisdiction to decide the controversy in hand in view of the Full Court Judgment of this Hon’ble Court? 2. Whether statement of a witness who filed written statement and thereafter stated against the said written statement and documentary evidence on record can be believed? Taking up question No.2 first, learned counsel for the appellant urges and submits that the evidence on record cannot be accepted as the evidence of the defendants is in variance with their written statement(s). He submits that in this eventuality the Court has no option but to reject the evidence as they resile from the admissions made by them in their written statement. Prima facie, the submission made is attractive. However, on a conspectus of the entire material on record, this submission cannot be accepted. No doubt, no evidence can be looked into which is at variance with the pleadings. At the same time, if both the parties go to trial with their eyes open and allow evidence in variance with the pleadings without objection, they cannot afterward 5 object and plead that they were taken by surprise. In-fact, from the record I do not find that the appellant herein has at any point of time objected to the evidence being admitted. He has allowed such evidence to be taken on the record of the case. Two decisions of the Supreme Court, namely, Bhim Singh (dead) by L.R.s and another vs.Kan Singh, AIR 1980 727, hold that if a plea has not specifically been made and yet it is covered by an issue by implication and the parties knew that such plea was involved throughout, the mere fact that the plea has not specifically been taken in the pleadings would not disentitle a party from claiming the relief prayed for. To similar effect is the decision of the Supreme Court in Kali Prasad Aggarwalla (Dead by LRs.) and others vs.M/s.Bharat Coking Coal Ltd., and others, AIR 1989 SC 1530, where the Court holds that if the parties go to trial knowing the cases of each other and lead evidence in respect of their respective claims. Such evidence is to be considered by the Court. After such consideration no complaint can be made by any party to say that such evidence should not be looked into. From the record I find that there was no protest by the appellant herein for the exclusion of evidence which has been led by the opposite party. There was also no such point involved for consideration by the appellate Court as being urged 6 before this Court. This question, therefore, is decided in favour of the respondents and against the appellant. In Ananda Chandra Chakrabarti vs. Broja Lal Singha and others, A.I.R. 1923 Calcutta 142, the Court holds that the purpose is to confine the evidence to the pleadings. In case of variance, the test is whether the defendant has been taken by surprise if relief is granted on the facts established by the evidence. I do not find any such case having been set up in this Court. Question No.2: This question need not be open for this Court. In Chhunia Devi vs. Jindu Ram, 1991(1) Sim.L.C. 223 relied upon by the learned counsel has later-on been distinguished by this Court holding that where the very basis of the revenue entries are questioned, it cannot be said that the Civil Courts do not have jurisdiction to try the matter. It is undisputed before me that the plaintiff has urged before the trial Court that entries were changed in the revenue record in connivance with the revenue staff. There is no question about jurisdiction of the Civil Courts being barred. This question is also decided in favour of the respondents and against the appellant herein. 7 RSA No.73 of 1999: In this appeal substantial question raised for determination is: “Whether the learned lower First Appellate Court has mis-read and mis- interpreted the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 while partly accepted the appeal of the appellant-respondent Bhag Singh?” On this question, I do not find that any foundation has been laid by the appellant herein on the question sought to be urged before me, as to whether the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act has been misinterpreted by the Courts below. Obviously, for deciding this question, the factual foundation would have to be considered. I do not find any such error having been committed by the appellate Court. This question, therefore, is decided against the appellant. As a sequel of my findings on the questions of law as raised, I do not find any merit in both these appeals which are accordingly dismissed. October 21, 2008. (Dev Darshan Sud) (aks) Judge.