IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 367 of 2002 Date of Decision : July 07, 2011 Bhim Singh (since deceased) through his LRs Inder Singh & Ors. …Appellants vs. Krishan Dutt …Respondent. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. G. D. Verma, Sr. Advocate with Mr. B. C. Verma, Advocate. For the respondent : Mr. Neeraj Gupta, Advocate. Sanjay Karol, J (Oral). This regular second appeal, filed under Section 100 of the Code of Civil Procedure was admitted on the following substantial questions of law:- “1. Whether the learned District Judge below has acted illegally and he has assumed the jurisdiction, which was not lawfully vested in him in as much as he entertained an application under Order 41 Rule 27 C.P.C. in the absence of any lawful reasons and thereby injustice was caused to the appellant. 2. Whether keeping in view the proceedings started by the appellant by moving an application Ext.D-1 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 for determination of his claim of tenancy of the suit land and for correction of the entries in the revenue record, therefore, the Civil Suit was debarred to entertain the suit or the suit filed by the respondent was required to be stayed, being subsequent in point of time. 3. Whether the status of right of tenancy over the agriculture land can be determined only by the Revenue Court and Civil Court has no jurisdiction to exercise jurisdiction in such like cases/matters. 9. Whether in view of the findings, as recorded by the ld. District Judge, the appellant is going to be deprived of his right of establishing the claim of tenancy over the suit land before the Revenue Court.” 2. On 15.11.1999, plaintiff Krishan Dutt (respondent herein) filed a suit for permanent injunction against defendant Bhim Singh (appellant herein). Plaintiff claims to be owner in possession of the suit land. The same is being interfered with by the defendant. Defendant resisted the suit claiming tenancy over the suit land with effect from June 1970. According to the defendant, steps for getting the revenue record rectified to this effect were already taken prior to the institution of the suit. 3. Based on the pleadings of the parties, the trial Court framed the following issues:- “1) Whether the plaintiff is owner in possession of the land in suit, as alleged? ....OPP 2) Whether the defendant has caused interference in the land in suit, as alleged? ....OPP 3 3) Whether the defendant is in possession of the land in suit as tenant w.e.f. June 1970, as alleged? ..OPD 4) Whether the suit is not maintainable in the present form? ..OPD 5) Whether the Court has no jurisdiction, as alleged? ...OPD 6) Whether the plaintiff has no locus standi? ......OPD 7) Whether the matter is already subjudice in a court of complete jurisdiction? ...OPD 8) Relief.” 4. Plaintiff’s suit was held to be not maintainable for want of jurisdiction since defendant had already initiated proceedings for rectification of the revenue record, in relation to the tenancy, before the Assistant Collector Ist Grade. On merits, the trial Court returned the following findings: “15. Plaintiff has proved on record copy of jamabandi for the year 1996-97 Ext.PX and copy of Khasra Girdawri Ext.PY. Though, it is seen from Ext.PX and PY that plaintiff is shown in possession of the suit land but at the same time the oral evidence adduced by the parties is evenly balanced. Both the parties have staked rival claims in respect of the possession and none of the parties are firm about it. Matter is already subjudice before Assistant Collector Ist Grade as could be seen from Ext.D1 wherein defendant has claimed himself to be in possession of the suit land w.e.f. 1970. However, neither the plaint nor the statement of PW1 contain even an iota in respect of pendency of said application for correction of revenue entries. It has come in the evidence that plaintiff is hale and hearty and even 4 cultivates his land but he has not stepped into the witness box. The transaction is alleged to have taken place in the year 1970 but PW1, PW2 and PW3 are to young to state anything about the so called transaction of 1970. It was, therefore, the plaintiff who could have come and stepped into the witness box to dispel all doubts but he has miserably failed. It appears that he has purposely not appeared so as to suppress some truth. Hence, an inference adverse to him is required to be drawn. The application before Assistant Collector Ist Grade is presented on 4.6.1999 but till 15.11.1999 plaintiff kept mum and filed the present suit during pendency of said application without even parting any detail of said application. It appears that the story of so called interference is cooked up lateron with a view to defeat the claim of the defendant. In the circumstances, plaintiff has miserably failed to establish on record that defendant created interference in the suit land on the alleged dates or has threatened to carry out interference in future. On the contrary, defendant has resorted to the procedure established by law by moving an application before the appropriable forum. However, it is established by the plaintiff on record that he is owner of the suit land. But the evidence of the plaintiff is not cogent and satisfactory that he is also in possession thereof. Similarly, defendant too has failed to establish that he had seen inducted tenant by the plaintiff on payment of 1/4th Batai in the year 1970 or he has been possessing the suit land over since 1970. In the circumstances, Issue No.1 is decided partly in favour of the plaintiff and partly against him. Issue No.2 is decided against the plaintiff and in favour of the defendant and Issue No.3 is decided against the defendant and in favour of the plaintiff.” (Emphasis supplied) 5 5. Accordingly, plaintiff’s Civil Suit was dismissed in terms of judgment and decree dated 18.01.2001 passed by Sub Judge, Rajgarh, Camp at Sarahan, Distt. Sirmaur. 6. Aggrieved of the same, plaintiff filed an appeal which stands allowed in terms of judgment and decree dated 24.06.2002 passed by District Judge, Sirmaur at Nahan. The lower Appellate Court reversed the findings passed by the trial Court and decreed the plaintiff’s suit. The suit was held to be maintainable. The Civil Court had jurisdiction to adjudicate the dispute. It was held that plaintiff was admitted to be the recorded owner of the suit premises and consequently his possession had to be protected. 7. Record reveals that before the lower Appellate Court, plaintiff’s application seeking permission to place additional evidence stood rejected in terms of order dated 10.9.2001. Record also reveals that plaintiff’s another application filed under Order 6 Rule 17 CPC seeking amendment of the plaint stood allowed in terms of order dated 20.12.2001 by the lower Appellate Court. The amendment was with respect to the prayer clause. Defendant also filed written statement to the amended plaint. With regard to the framing of additional issues and affording opportunity of leading evidence, on 24.4.2002, the Court passed the following order:- “24-4-2002 PRESENT: Sh. A.K.Rewal, Adv.counsel for the appellant Sh. M.Iqbal, Adv.counsel for the respondent 6 On the pleadings of the parties no new issue arises. However, the Ld. counsel for the appellant intends to tender in evidence copy of mutation No. 265 and copy of Jamabandi for the year 1981-82. These documents exhibited in evidence as Ext.A1 and A2 (exhibition of the documents objected to by the Ld. counsel for the respondent on the ground that the application to this effect filed by the appellant was rejected by this Court). The objection is hereby over-rulled because the application filed by the appellant under Order 41 Rule 27 CPC was dismissed as at that time there was no pleading of production of these documents in evidence. Now to come up on 1-5-2002 for evidence if an of the respondent in rebuttal. Sd/- District Judge, Nahan.” 8. Defendant availed of the said opportunity and also filed a copy of the judgment and closed his rebuttal evidence on 1.5.2002. Undisputedly, neither the plaintiff nor the defendant have assailed the orders passed by the lower Appellate Court on 20.12.2001, 24.4.2002 and 1.5.2002. According to Mr. G. D. Verma, learned senior counsel the evidence taken on record by the lower Appellate Court is in violation of the provisions of order 41 Rule 27 CPC. In my considered view, the contention needs to be rejected. The Court is well within its power to accept any document or examine witnesses to enable it to pronounce the judgment or for any other substantial reason, the Court is fully empowered in law to do so. Admittedly, plaintiff did not object to the production of the documents in Court. It also did not object 7 that additional evidence could not be led by the parties. To the contrary, it also availed of the opportunity to lead additional evidence and placed on record copy of the judgment. Hence, it cannot be said that the procedure prescribed in law was not followed by the lower Appellate Court or that the evidence tendered by the plaintiff was also in violation of Order 41 Rule 27 CPC. 9. Undisputedly, trial Court had repelled the defendant’s contentions with regard to his plea of tenancy. Issue No.3 was specifically decided against the defendant. He was held not to be a tenant on the suit land since June, 1970. True, that defendant was not obliged to file an appeal assailing the said findings but nonetheless it was open for him to have assailed the same by filing cross objections in the plaintiff’s appeal. The Apex Court in Banarsi & Ors. vs. Ram Phal, (2003) 9 SCC 606, has simply held that appeal is to be filed against a decree and not the findings in the judgment. Hence reliance thereupon by the appellant is misconceived. In the instant case, it was open for the defendant to have filed objections which he did not do. Be that as it may be, even the lower Appellate Court, after appreciating the evidence placed on record by the parties, has come to the conclusion that defendant failed to prove his tenancy. Also from the record, except for the fact that defendant had instituted proceedings before the Revenue Officer for rectification of the revenue record, there is nothing to substantiate his plea of 8 tenancy. Plaintiff’s title with respect to the suit land is not in dispute and also cannot be disputed. 10. The lower Appellate Court, after appreciating the entire material on record has rightly come to the conclusion that copy of the judgment (Ext.PX) pertaining to the year 1996-97 itself shows plaintiff to be owner in possession of the suit land. To this effect, plaintiff has also placed on record other revenue records (Ext.A-1 & A-2) pertaining to different periods. Even if the same is to be ignored position would not change materially. The fact of the matter is that defendant is claiming his tenancy through the plaintiff. Ext.A-1 & A-2 reflects that plaintiff had gifted part of the suit land to the State for setting up a Bhawan. This negates the defendant’s plea of tenancy. 11. It is also urged by Mr. Verma that plaintiff failed to step into the witness box and examine himself as a witness, instead he asked his son to appear as his Attorney. As such, best evidence in support of the defendant’s case has been concealed, suppressed and withheld by the plaintiff. This is rather a strange plea. The contention needs to be rejected. Plaintiff, as has come in the statement of PW-1, was infirm. Also he was old in age. Importantly, plaintiff never admitted defendant’s plea of tenancy. Hence, he was under no obligation to step into the witness box to depose in favour of the defendant. In any event, it was open for the defendant to have called him as his witness or taken appropriate steps for his personal examination. 9 12. It is also urged by Mr. Verma that plaintiff has suppressed the factum of initiation and pendency of the proceedings before the Collector. It is not so. Suit was instituted on 15.11.1999, whereas the application before the revenue authority was instituted on 4.6.1999 and there is nothing on record to show that prior to the same, notice in the application was served upon the respondent therein, or that he had knowledge about the pendency of the same. As such, reliance upon the decisions rendered by the Apex Court in Azhar Hasan & Ors. vs. Distt. Judge, Saharanpur & Ors. (1998) 3 SCC 246 and by this Court in Shankar vs. Rukmani & Ors., 2003 (I) Shim. L.C. 300, is misplaced by the appellant herein. 13. Lower Appellate Court, in para-17 of the judgment has rightly held that defendant was trying to interfere with the plaintiff’s possession at different point in time. Defendant himself has been claiming to be in possession of the suit land as a tenant. Thus, he disputed the plaintiff’s right to own and possess the suit land. Hence decree was rightly passed. 14. From the record, nothing could be pointed out as to how and in what manner the impugned judgment is either perverse or has resulted into travesty of justice. It also cannot be said that the same is based on erroneous appreciation/ misreading/misconstruction of pleadings and evidence placed on record by the parties. Civil Court was well within its jurisdiction to decide the lis between the parties in the absence of any statutory 10 bar with regard thereto. Hence, I see no ground to interfere with the impugned judgment and decree. Substantial questions of law are answered accordingly and the present appeal is accordingly dismissed. July 07, 2011. (Sanjay Karol) (rana) Judge.