IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 305 of 2007, CMP No.515/2007, CMP No.135/2011 Reserved on : 29.9.2011 Date of Decision : 29th December, 2011 1. Sh. Sant Ram s/o late Sh. Surat Ram, 2. Sh. Devi Singh s/o late Sh. Surat Ram, 3. Smt. Nirmala Devi wd/o late Sh. Ram Singh, 4. Sh. Ram Dass s/o Sh. Banku Ram, 5. Master Nishat (minor) s/o late Sh. Ram Singh 6. Ms. Pratibha (minor) d/o late Sh. Ram Singh Appellants No.5 & 6 are minors through their mother & natural guardian Smt. Nirmala wd/o late Sh. Ram Singh. all r/o village Satoli, P.O. Darla, Tehsil Arki, Distt. Solan …..Appellants Versus: Sh. Ram Rattan s/o Sh. Beli Ram, r/o village Drawru, P.O. Darla, Tehsil Arki, Distt. Solan …Respondent Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes For the appellants: Mr. Manohar Lal Sharma, Sr. Advocate with Mr. Dharamveer Sharma, Advocate For the respondent : Mr. Bhupender Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate. - 2 - Justice Sanjay Karol, J. This is the defendants’ (appellants herein) regular second appeal, filed under Section 100 of the Code of Civil Procedure, 1908. 2. Concurrent findings of fact recorded by the Courts below are assailed in the present appeal, which stands admitted on the following substantial question of law:- “3. Whether documentary evidence by way of Ex.:D-1, D-2, Ex.P-2 to P-7 have been completely misread, misinterpreted and ignored as to cause injustice?” 3. Plaintiff (respondent herein) filed a Civil Suit against original defendants, S/Sh. Kanshi Ram (defendant No.1), Devi Singh (defendant No.2), Ram Singh (defendant No.3) and Sant Ram (defendant No.4) (hereinafter referred to as the defendants/ appellants, some of whom are now being represented by their successors-in-interest). 4. Plaintiff prayed for the following relief:- “It is, therefore, humbly prayed that decree for permanent prohibitory injunction restraining the defendants from taking forcible possession of land comprising Khata Khatauni No. 9/14 Min Kh. No. 10 measuring 3-13 bigha, situate in village Satoti Parg, Dhar, Tehsil Arki Distt. Solan H.P. and also stopping them from cutting and removing trees or changing the nature of land in any manner whatsoever, themselves or through any body else be passed with costs of suit.” - 3 - 5. Plaintiff claimed himself to be in exclusive possession of the suit land, mortgaged in favour of his predecessor-in-interest by the predecessors-in-interest of the defendants. In support, he relied upon revenue entries i.e. Missal Haqiyat for the year 1961- 62 (Ex.P-2), Jamabandies for the years 1964-65 (Ex.P-3), 1969- 70 (Ex.P-4), 1994-95 (P-5), Khasra Girdawries for the years 1994-95 (Ex.P-6) and 1999-2000 (Ex.P-7). 6. Defendants resisted the suit, inter alia, denying that the suit land was ever mortgaged in favour of the plaintiff/his predecessors-in-interest. They categorically denied plaintiff’s possession, in fact to the contrary, asserted their own possession over the suit land. In support of their claim, they relied upon the judgment dated 22.8.2003 (Ex.DA) passed by the Additional Chief Judicial Magistrate, Arki, Distt. Solan in Criminal Case No.54/2 of 2002. The subject matter of dispute is the very same land, with regard to which action under penal laws was taken against the plaintiff. They also relied upon plaintiff’s statement (Ex.D-1) recorded in the very same proceedings admitting the defendants to be in possession over the suit land. 7. On the strength of pleadings of the parties, trial Court framed the following issues:- 1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? ……OPP. 2. Whether the plaintiff has no locus-standi to file the present suit? ……OPD. 3. Whether the plaintiff has no cause of action? ……OPD. - 4 - 4. Whether the plaintiff is estopped from filing the suit by his own acts, conduct and acquiescences? …OPD 5. Relief. 8. Significantly with regard to prior litigation or previous statement no specific issue was framed. 9. Based on the evidence (oral or documentary) led by the parties, issues were decided in favour of the plaintiff and consequently suit was decreed in the following terms:- “13. The cumulative effect of my findings arrived supra is that the suit of the plaintiff succeeds and it is decreed. Plaintiff has been shown in settled possession of the land in dispute, he cannot be dispossess therefrom except in due course of law and further the defendants are permanently restrained from interfering in the suit land or dispossessing the plaintiff, till he is dispossessed therefrom in due course of law. The parties are left to bear their own costs. Decree sheet be prepared accordingly. File, after its due completion be consigned to record room.” 10. Defendants’ assailed the judgment and decree dated 25.4.2006 passed by Civil Judge (Jr. Division), Arki, District Solan in Civil Suit No.31/1 of 2002 before the District Judge, Solan and in terms of judgment and decree dated 2.4.2007 passed by Additional District Judge Solan, defendants’ Civil Appeal No.35- S/13 of 2006 stands dismissed. 11. Findings of fact recorded by the trial Court stands affirmed by the Lower Appellate Court on all counts. - 5 - 12. Sh. Manohar Lal Sharma, Senior Advocate appearing for the defendants has attacked the impugned judgment and decree dated 2.4.2007 on the ground that Courts below misdirected themselves in recording its findings with regard to the plaintiff’s possession over the suit land; material piece of evidence was misread and misinterpreted; keeping in view the ratio of law laid down by the Apex Court in Krishna Mohan Kul v. Pratima Maity, (2004) 9 SCC 468, this Court would be fully justified in interfering with concurrent findings of facts recorded by the Courts below; revenue record i.e. Jamabandies do not confer title and hence keeping in the view the law laid down by the Apex Court in Jattu Ram vs. Hakam Singh & Ors., (1993) 4 SCC 403, reliance on the same by the lower Appellate Court is misconceived in law; revenue entries being contradictory are ex- facie illegal. Mortgagee cannot be a non-occupancy tenant as is so recorded by the revenue authorities; Courts below erred in not considering the judgment dated 22.8.2003 (Ext.DA) and statement (Ext.DB) showing the plaintiff not to be in possession over the suit land, thus, rendering the findings returned by the Courts below to be erroneous and perverse, resulting into travesty of justice. Still further, it is argued that rejection of defendants’ application, in part, for adducing additional evidence is contrary to the ratio of law laid down by the Apex Court in Jaipur Development Authority vs. Kailashwati Devi, (1997) 7 SCC 297 and Om Prakash & Anr. Vs. Jai Prakash, (1992) 1 SCC 710. - 6 - 13. Rebutting the same, Mr. Bhupender Gupta, Senior Advocate, appearing for the plaintiff has urged that only after fully considering and appreciating the material placed on record in accordance with law, by the parties, Courts below have returned findings holding the plaintiff to be in continuous and uninterrupted possession over the suit land which cannot be disturbed except in accordance with law; findings of fact returned by the Courts below cannot be said to be erroneous, perverse or unreasonable. They are not of such a nature, as no reasonable person would arrive at such a conclusion on the basis of material, though placed on record but required to be considered in accordance with law; Courts below rightly did not go into the question of title for the reason that suit was based on the strength of the possession and for this very reason, no issue with regard to title was either pressed by the parties nor framed by the trial Court; while not disputing the legal proposition that revenue entries (Jambandies) do not confer any title, it is urged that their evidentiary value being corroborative in nature, Courts below correctly relied upon the same. Neither entries in the revenue records have been misread nor are there any contradictions therein, as Jamabandi (Ext. P-2) clearly reveals plaintiff’s possession as a mortgagee. Further it is argued that keeping in view the ratio of law laid down by the Apex Court in Anil Behari Ghosh vs. Latika Bala Dassi & Ors., AIR 1955 SC 566 and Karam Chand Ganga Prasad vs. Union of India, (1970) 3 SCC 694, judgment (Ex.D2) rendered in criminal proceedings cannot be considered for deciding a civil - 7 - dispute interse between the parties and that plaintiff’s statement (Ex.D-1) not put to him cannot be said to be material piece of evidence being hit by the provisions of Section 145 of the Indian Evidence Act, 1872. 14. Before the Lower Appellate Court, appellants moved an application under Order 41 Rule 27 CPC seeking permission to adduce additional evidence, by placing on record two sets of additional documents. The same was partly allowed. The first set of documents i.e. Copies of revenue record (Jamabandies) for the year 1948-49, 1956-57 and Missal Haqiyat for the year 1961-62 filed by the defendants were taken on record and exhibited. They were also considered in deciding the appeal. These documents reveal that prior to the year 1961-62, name of plaintiff’s father is not mentioned in the list of mortgagees with whom the suit land was mortgaged. The other document is statement of successor-in- interest of Sh. Ram Dittu, whose name figured in the list of mortgagees. The purpose was to establish the fact that possession of the suit land was in fact handed over by the mortgagees to the successor-in-interest of the defendants, thus falsifying the plaintiff’s stand, which request for taking the documents on record and leading additional evidence was rejected. 15. Alongwith the present appeal defendants initially filed an application (CMP No.514/2007) under Order 41 Rule 5 CPC seeking interim relief from being dispossessed by the plaintiff - 8 - from the suit land. The same was however dismissed on 25.6.2008. 16. Defendants also moved application being CMP No. 515 of 2007, under Order 26 Rule 9 CPC, for appointment of a Local Commissioner but no interim order in their favour was passed and the same was directed to be listed alongwith the main appeal. On 26.2.2011, defendants moved yet another application being CMP No.135/2011 (under Order 41 Rule 5 CPC), seeking the very same relief which was sought in CMP No. 514/2007, annexing two documents i.e. (i) application dated 9.10.2007 filed by the plaintiff under Order 21 Rule 32 CPC before the Decretal Court praying for initiation of proceedings for attachment and sale of defendants property for having willfully committed contempt of Court; (ii) Order dated 6.8.2010, passed by Asstt. Collector 2nd Grade, Arki, Distt. Solan on the defendants’ application filed under Section 37 of the H.P. Land Revenue Act 1953, seeking correction of the revenue entries. 17. For obvious reasons plaintiff is opposing this application. 18. Noticeably, appellants have not filed any application under Order 41 Rule 27 CPC, seeking permission to adduce additional evidence and/or take on record documents annexed with CMP No. 514/2007. 19. Principles with regard to the exercise of jurisdiction by the High Court, under Section 100 Code of Civil Procedure, 1908 are now well settled. - 9 - 20. The Apex Court in Hari Singh vs. Kanhaiya Lal (1999) 7 SCC 228 has held that “the jurisdiction of courts in first appeals, second appeals or revisions are all to the extent conferred by the legislature. No litigant possesses any natural or inherent right to appeal against any order, unless a statute confers it and it is to the extent it is conferred. Thus the area of challenge is also hedged by the legislature. Hence challenge to the impugned order has to be confined with such limitation.” 21. The word ‘substantial’ as qualifying question of law has been clarified by the Apex Court in Gurdev Kaur vs. Kaki, (2007) 1 SCC 546 to mean “having substance, essential, real, of sound worth, important or considerable.” It is further held that “even if the first appellate Court commits an error in recording a finding of fact, that itself will not be a ground. In other words, a search for truth has to be reconciled with the doctrine of finality. An unqualified right of first appeal may be necessary for the satisfaction of the defeated litigant; but a wide right of second appeal is more in the nature of a luxury. To interfere, because they seem to feel that a decree following upon a gross mis- appreciation of evidence involves injustice -no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact.” 22. In Municipal Committee Hoshiarpur vs. Punjab State Electricity Board & Ors., (2010) 13 SCC 216, the Apex Court has further held that “it is only in very exceptional cases and on - 10 - extreme perversity power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection.” 23. Further in Ramanuja Naidu vs. V. Kanniah Naidu & Anr., (1996) 3 SCC 392, the Apex Court has held that “what is administered in courts is justice according to law and considerations of fair play and equity, however, important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.” 24. However in Kulwant Kaur vs. Gurdial Singh Mann (Dead) by LRs & Ors. (2001) 4 SCC 262, the Apex Court held that “technicality alone by itself ought not to permit the High Court to decide the issue since justice oriented approach, is the call of the day presently.” 25. But then subsequently in Manjunath Anandappa URF Shivappa Hansi vs. Tammanasa & Ors., (2003) 10 SCC 390, it clarified that “an appellate power interferes not when the order appealed is not right but only when it is clearly wrong. The difference is real, though fine.” 26. The ratio of law laid down by the Apex Court in Chunilal V. Mehta & Sons Ltd. versus Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, even post - 11 - amendment of the provisions of Section 100 CPC, stands reiterated by the Apex Court and in its various judicial pronouncements, it is held that it would be open for the High Court to interfere with the findings of facts recorded by the Court below only where findings of facts are vitiated by; (i) non-consideration of relevant evidence, {Jagdish Singh vs. Nathu Singh, (1992) 1 SCC 647 & Ram Das vs. Gandia Bai, (1997) 1 SCC 74}; (ii) conclusion is based on no evidence, {Ramanuja Naidu (supra), Neelkantan vs. Mallika Begum, (2002) 2 SCC 440}. (iii) Conclusions are biased and evidence is not sufficient to support the same; {Ramanuja Naidu (supra)}; (iv) material evidence having a direct impact on the decision of the case was ignored; {Ram Das (supra) & Bharatha Matha vs. R. Vijaya Renganathan , (2010) 11 SCC 483}; (v) misread evidence which led to miscarriage of justice, {Rohini Prasad vs. Kasturchand (2000) 3 SCC 668}; (vi) Rejected the witness accepted by the trial Court, {Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar, (1999) 3 SCC 722}; (vii) Findings are erroneous being contrary to the mandatory provisions of law applicable/settled by the Apex Court, {Kondiba Dagadu Kadam (supra)}; (viii) assumed jurisdiction not vested in the Court {Kondiba Dagadu Kadam (supra)}; - 12 - (ix) not appreciating oral and documentary evidence properly which materially prejudices the case of the parties rendering the findings to be perverse, {Kulwant Kaur vs. Gurdial Singh Mann, (2001) 4 SCC 262, Neelkantan (supra), Ramlal vs. Phagua (2006) 1 SCC 168 & Municipal Committee Hoshiarpur (supra)}; (x) interpretation of documents which goes to the root of title of a party, {Dinesh Kumar vs. Yusuf Ali, (2010) 12 SCC 740}. (xi) where the courts have wrongly cast the burden of proof, {Narendra Gopal Vidyarthi vs. Rajat Vidyarthi, (2009) 3 SCC 287}; 27. The Apex Court has held that the High Court cannot set aside findings of the first Appellate Court in the following circumstances; (i) No point of law pleaded before the Courts below {V. Pechimuthu vs. Gowrammal,(2001) 7 SCC 617, Hero Vinoth (Minor) vs. Seshammal, (2006) 5 SCC 545}; (ii) to arrive at a different conclusion on reappraisal of evidence, to adjudge the adequacy or sufficiency of evidence to sustain the conclusion of facts, {Ramanuja Naidu (supra)}, (iii) mere equitable consideration, {Kondiba Dagadu Kadam (supra)}; (iv) the first Appellate Court did not advert to all the reasons given by the trial Court, {Arumugham (dead) by LRs & Ors. vs. Sundarambal & Anr. (1999) 4 SCC 350}; - 13 - (v) where two inferences are possible, the one drawn by the lower Appellate Court is binding on the High Court, {Kondiba Dagadu Kadam (supra), Karnataka Board of Wakf vs. Anjuman-E-Esmail Madris-Un-Niswan, (1999) 6 SCC 343 and Hero Vinoth (supra)}; (vi) Another view is possible on re-appreciation of the same evidence, {Navaneethammal vs. Arjuna Chetty (1996) 6 SCC 166)}. 28. Having carefully considered the rival contentions of the parties, appreciating the ratio of law laid down by the Apex Court in its various judicial pronouncements and the evidence led by the parties (oral and documentary), I am of the considered view, that no case for interference is made out in the present appeal. The appeal was admitted on a limited substantial question of law, yet I have considered all the contentions raised by the parties. 29. Plaintiff’s witnesses, S/Sh. Ram Rattan ( PW-1) (marked as PW-3 while being cross-examined); Prem Singh (PW-2) and Hari Ram ( PW-3) (marked as PW-1 while being cross-examined), have fully supported the plaintiff’s case of possession over the suit land. These witnesses appear to be truthful and reliable. Their testimonies inspire confidence. They have not only proved that plaintiff has been in possession of the suit land over a considerable period of time, but have also proved that, in fact defendant had threatened the plaintiff on 7.2.2002 from dispossessing him from the suit land. - 14 - 30. No doubt, defendant Sh. Sant Ram (DW-1) has examined himself as also S/Sh. Devi Singh (DW-2) and Amar Singh (DW-3) in his favour, but I find statement of the plaintiff to be more convincing, inspiring confidence and trustworthy. 31. Further oral testimony of the plaintiff stands duly corroborated by the documentary evidence i.e. Ext.P-2 to Ext.P-7, which unambiguously establishes his possession, continuous and uninterrupted, over the suit land since the year 1961-62 onwards till the date of filing of the suit, i.e. 21.2.2002. It is not a case where such entries were prepared either by collusion or exercising fraud. Khasra girdawries, are prepared after every six months, which also shows the plaintiff to be in possession of the suit land. The Courts below, in my considered view, have correctly read, interpreted and appreciated these documents and rightly held him to be in possession of the suit land. There cannot be any dispute about the proposition of law that entries of revenue record do not confer any title, but however, it is equally settled that there is a presumption of truth attached to such entries which, in the instant case, have not been rebutted by the appellants at all. 32. In Jattu Ram (supra), the Apex Court was dealing with the case where in the teeth of contractual conditions, Revenue Officer had recorded entries in the revenue record which were prima facie false. It is in this background that revenue entries were disbelieved and held that jamabandi entries are only for fiscal purpose and do not create any title. - 15 - 33. To the defendants’ advantage, here I may also reproduce the following observations made by the Apex Court in Baleshwar Tewari (dead) by LRs. and others v. Sheo Jatan Tiwary and others, (1997) 5 SCC 112: “ …….Entries in Revenue records is the paradise of the patwari and the tiller of the soil is rearely concerned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with entries.” 34. But then, significantly Jattu Ram (supra) was subsequently referred to by the Apex Court in Suraj Bhan & Ors. Vs. Financial Commissioner & Ors. (2007) 6 SCC 186 and later on in Narasamma & Ors. vs. State of Karnataka & Ors. (2009) 5 SCC 591, wherein entries showed a party to be in possession of the suit land and the Court held that the one objecting to the same has to discharge the burden of producing material, documentary or otherwise to show to the contrary. 35. It is also true that plaintiff has placed on record revenue record from the years 1948-49 to 1961-62, which do not show plaintiff/his predecessors-in-interest to be a mortgagee but then in my considered view Courts below have rightly held that subsequent entries over a continuous and considerable period of time, would in any event, supersede prior entries. In fact reliance by the defendants on earlier revenue entries, itself contradicts their own stand taken in the written statement that the suit land was never mortgaged by them or that their predecessors-in- - 16 - interest were always possessing the same. Revenue entries after the year 1961-62 have not been rebutted by the defendants. 36. Mr. Manohar Lal Sharma, Senior Advocate for the appellants has invited my attention to the following observations made by the Apex Court in Krishna Mohan Kul (supra): “13. In judging the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even dehors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court. 14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly stated in Ashburner's Principles of Equity, 2nd Ed., p. 229, thus : "When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donor's will." - 17 - 15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian Contract Act, 1872 (in short 'Contract Act'). 16. At this juncture, a classic proposition of law by the Privy Council needs to be noted. In Mst. Farid-Un-Nisa v. Munshi Mukhtar Ahmad and another (AIR 1925 PC 204) it was observed as follows : "It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not." 17. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though