Hira Lal Altas Huta Lal vs Shivlal and Others

B.R. Tuli, J.—Basanta and Hira Lal plaintiffs filed the suit for possession by way of redemption of a Gatwar situated in village Aurangabad, tehsil Palwal, district Gurgaon, which has been described in detail in para 1 of the plaint and is shown red in the plan attached to it The allegations of the plaintiffs are that Dharam Singh son of Chuni mortgaged with possession the mortgagee rights in the Gatwar in dispute to Vasdev and Bansi Dhar. predecessors-in-interest of the defendants for Rs 541/- on l0th January. 1898 and that the plaintiffs are the heirs of Dharam Singh mortgagor and are entitled to redeem the Gatwar and obtain its possession from the defendants. Ghisa defendant did not contest the suit in spite of service and the proceedings were taken ex -parte against him. Shib Lal and Matru, defendants 2 and 3, contested the suit on various grounds and on the pleadings of the parties the following issues were framed by the learned trial Court:

Have the plaintiffs locus standi to sue ?

Is the suit within time ?

Are Dharam Singh, Thandi, Boda and Dule necessary parties and what is the effect of not impleading them ?

Does the relationship of mortgagor and mortgagee subsist between the parties ?

Is the suit bad for not describing the property correctly ?

Relief.

The learned trial Court held that the plaintiffs had satisfactorily established that they were the heirs of Dharam Singh and that the original owners of the Gatwar in suit were not necessary parties to the suit. It was also held that the suit was within limitation and there was no serious defect description of the Gatwar. A decree for possession of the Gatwar in dispute on payment of Rs. 541/- was accordingly passed in favour of the plaintiffs, against the defendants on 7th July, 1958. Defendants 2 and 3 felt aggrieved from that decree and filed an appeal in the Court of the District Judge, Gurgaon, which was heard by the Additional District Judge, Rohtak at Gurgaon, and was accepted on 3rd March, 1959. The learned lower appellate Court came to the conclusion that no presumption could be raised in favour of the plaintiffs that the judgment, Exhibit P. X, or the mutation Exhibit P. 3, had been correctly decided and, therefore, these documents were not of any help to the plaintiffs. With regard to the oral evidence led by the parties, it was held that the same was not satisfactory. On that basis the learned lower appellate Court came to the conclusion that issue 1 had not been correctly decided by the learned trial Court and the finding on that issue was reversed with the result that the appeal was accepted. No other point was pressed before him. Feeling aggrieved from that decree, Hira Lal filed the present appeal in this Court. During the pendency of the appeal Hira Lal appellant and Basant Lal alias Basanta, respondent 9, who was also co-plaintiff with Hira Lal in the trial Court, died and they have been represented by their legal representatives in this appeal.

After the death of the appellant, his legal representatives filed an application under Order 41, rule 27 and section 151 of the CPC for permission to produce the judgments of the Additional Divisional Judge, Delhi, dated 22nd January. 1907 and 20th March, 1907, in Civil Appeal No. 808 of 1906, as additional evidence. This application came up for preliminary hearing before Gurdev Singh J. on 29th November, 1960, when the learned Judge ordered that it should be. decided by the Bench hearing the appeal. Notice of the application was given to the counsel for the respondents. Before me this application has not been pressed and, therefore, it has been dismissed.

The learned counsel for the appellants has vehemently argued that the learned lower appellate Court has wrongly excluded from consideration the copy of the mutation order, Exhibit P. 3, and the copy of the judgment, marked P. According to him these documents were relevant u/s 13, read with Section 43 of the Indian Evidence Act. The document. Exhibit P. 3, is a copy of the order of mutation made with regard to the state of Dharam Singh after his widow Suit. Ramdai had contracted remarriage in Karewa form with Sanwalia. Before the revenue officer Smt. Ramdai and Sanwalia appeared and admitted that they had married in Karewa form. The revenue officer sanctioned the mutation with regard to succession to Smt. Ramdai in favour of Hira Lal and Basanta who are the same persons as the plaintiffs in the present suit. This mutation order was passed on 17th May, 1907 and it is stated therein that the heirs had already taken possession. Smt. Ramdai was the widow of Dharam Singh who had become his heir after his death. After she remarried Sanwalia, Hira Lal and Basanta applied for the mutation to be made in their favour and for deletion of the name of Smt. Ramdai as the heir of Dharam Singh and this right of theirs was recognized by the revenue officer in the presence of the respectable of the village and Smt. Ramdai who was the person directly affected by that order. This mutation has remained unchallenged.

Exhibit P. X. is the copy of the judgment dated 20th May, 1953 delivered by Shri Girdhar Krishan Bhatragar. Sub Judge First Class, Gurgaon at Palwa), in suit No. 264 of 1952, filed by Hira Lal against Chain Sukh and others including Basant Lal son of Misri Lal, for possession by redemption of 10 Bighas and 11 Biswas of agricultural laud situated in the area of village Aurangabad, on the ground that he and Basanta were the heirs of Dharam Singh and were entitled to the possession of the suit-land by redemption. The mortgage had been made by Dharam Singh, mutation with regard to which was sanctioned on 17th August, 1897. In that suit it was alleged in the plaint that defendants 1 to 7 got the name of the plaintiff (Hira Lal) and his uncle Basanta, defendant 8 wrongly removed from the revenue records and they still continued to be the mortgagors of the disputed land. Defendant 4 in that suit falsely described himself as the mortgagor and got the land redeemed from defendants 1 to 3 and then mortgaged a part of the land with defendants 5 to 7 and were, therefore, made parties to the suit. Defendant 4 contested that suit inter alia on the ground that the plaintiff, Hira Lal, had no locus standi to sue for redemption as he had not been shown as a mortgagor in the revenue records. It was not admitted that Hira Lal plaintiff and Basmta, defendant 8, were mortgagors of the land in dispute and on these pleadings issues 2 and 3 were struck as under:

Had the plaintiff no locus standi ?

Were the plaintiff and defendant 8 mortgagors of the land or representatives of the mortgagor ?

After considering the evidence led by the parties, the learned Subordinate Judge held that plaintiff Hira Lal and defendant 8 Basanta, were the heirs of Dharam Singh and they continued to be the mortgagors of the land in dispute and there had been no extinction or sale of their right to redeem. It is thus clear that on the two occasions when order of mutation, Exhibit P 3, and the judgment, Exhibit P. X. were passed the right claimed by the plaintiffs Hira Lal and Basanta was that they were the heirs of Dharam Singh and, therefore, entitled to succeed to his estate after the remarriage of his widow Smt. Ramdai. This right has been asserted and claimed by the plaintiffs and was recognized by the revenue officer and the Subordinate Judge First Class by deciding that the plaintiffs were the heirs of Dharam Singh. The same right has been claimed by the plaintiffs in the present suit and, in my opinion, the order Exhibit P. 3 and the judgment, Exhibit P. X, are relevant under Sections 13 and 43 of the Indian Evidence Act and their probative" value is very high. It was net necessary for the plaintiffs to prove that the order and the judgment had been correctly passed. The fact that the said order and the judgment have stood to this day and have not been challenged or set aside in any proceedings, goes to prove that they were correctly made. The learned lower appellate Court was, therefore, not correct in keeping them out of consideration on that ground.

The learned counsel for the appellants has relied on the following judgments:

1 AIR 1931 89 (Privy Council) , in which their Lordships held as under:

A judgment not inter parties holding that a partition of a certain estate was proved is only admissible under the provisions of Sections 13 and 43 as establishing a particular transaction in which the portability of the estate was asserted and recognized.

The earlier judgment relied upon before their Lordships was in a suit filed in 1793 wherein Pandara estate was divided. On the same basis it was asserted in the suit in which the appeal went to the Privy Council that the said judgment should be accepted as evidence that Thakur Sib Singh got Achra villages by partition which resulted from the 1793 suit. This contention with regard to the Achra villages was not accepted by their Lordships but their Lordships held that the judgment in 1793 suit was relevant to establish that Pandara estate was partitioned as a result of 1793 suit.

AIR 1937 69 (Privy Council) In that case their Lordships held that -

a judgment is not admissible as evidence against one who is a stranger to the suit. But the judgment in a prior suit together with the plaint which preceded it and the steps in execution which followed it are evidence of an assertion by the holder of a judgment of the right which he claims to acquire and are then admissible in evidence of his right. Such judgment is of great evidence even against third parties.

In that case the question related to the admissibility of a decree passed in 1916 and with regard to that it was observed as under:

The judgment of 1916 together with the plaint which preceded it and the steps in execution which followed are evidence of an assertion by the Raj of the right which it claims to have acquired in 1903 and are thus admissible evidence of the right.

On the same reasoning it can be said in the instant case that the order, Exhibit P. 3 and the judgment, Exhibit P.X, are admissible evidence of the right of the plaintiffs to succeed to the estate of Dharam Singh which they had successfully asserted in those proceedings and which right had been recognized by the revenue officer in mutation proceedings and by the Subordinate Judge First Class in the suit.

Harihar Prasad Singh and another v. Deonarain Prasad A. I. R. 1956 S. C. 305, in which their Lordships held as under:

The word ''Sir'' is synonymous with ''kamat'' and ''ziraat'', and means private lands of the proprietor. (Vide Section 116). These recitals are of considerable importance, as they occur in deeds inter-parties. The respondents are right in contending that they cannot be regarded as admissions by the mortgagees as the deeds were executed by the mortgagors; but they are certainly admissible u/s 13, Evidence Act, as assertions of title, and as it is under these documents that the first party defendants claim, their probative value as against the second party defendants who claim under them is high.

The learned counsel for the respondents has submitted that this judgment is not helpful to the appellants because it related to a document between the parties and did not relate to a judgment. The mortgagor and the mortgagees both were parties to that document and even if the mortgagees had not signed the document, they were aware of the right which had been asserted by the mortgagor and they never disputed, that right. The distinction made by the learned counsel is not of much importance because what was decided in the case was that the mortgage-deed was a transaction wherein the mortgagor asserted certain right to the land in suit. Similarly the right which was asserted by the, plaintiffs in the mutation proceedings in 1907 and in the suit in 1953, was to the estate of Dharam Singh as his heirs after his widow Smt. Ramdai had remarried Sanwalia. That right had been recognised and, in my opinion, the documents Exhibit P. 3. and P. X, are good evidence of the right of the plaintiffs'' claim in the present suit, that is, they are heirs of Dharam Singh and as such are to he deemed to be mortgagors of the land in suit which they are entitled to redeem.

The learned counsel for the respondents has submitted that the expression "right" used in Section 13 of the Evidence Act, relates to the relief claimed and allowed by the previous judgment and not the basis on which the relief was claimed. He thus submits that the judgment, Exhibit P. X, is relevant to prove that the plaintiffs got possession of the land by redemption but it cannot be used in support of their right to redeem the land as heirs of Dharam Singh. Similarly the order of Mutation, Exhibit P. 3, can be taken into evidence in support of the fact that the plaintiffs succeeded to the estate of Smt. Ramdai. I regret my inability to agree to this submission. In my view, what was disputed on the previous occasions was the right of the plaintiffs to succeed to the estate of Dharam Singh as his heirs. This right was successfully asserted and claimed by them and it was recognized by the revenue officer in Exhibit P. 3 and by the Civil Court vide judgment, Exhibit P. X. The learned counsel for the respondents has placed his reliance on the following judgments:

Ramaji Batanji Vs. Manohar Chintaman and Others, , in which a Division Bench of the Bombay High Court held that-

a judgment in another suit which is not inter parties is not evidence to establish the truth of the matters decided in that judgment. The findings of fact arrived at on the evidence in one case are not evidence of that fact in another case.

One of the points for determination in the appeal was whether house No. 580 belong to Marotrao. With regard to this house the case of the plaintiff was that it originally belonged to Pandurang Damaji, sister''s son of Marotirao, who sold house along with other property to one Bashinath by a sale-deed of 1896 and that the sale deed in favour of Kashinath was really benami in favour of Marotrao. In order, to prove this case the plaintiff relied on two judgments, Exhibit 1-2 p-9, judgment of trial Court in a suit filed by Pandurang (Civil Suit No. 216 of 1918), and Exhibit 1-2 P-8, judgment of the first appellate Court in the same litigation, and on the register of civil suits showing that Second Appeal No 427 of 1919 in this matter was dismissed by the Judicial Commissioner''s Court. With regard to the judgment, Exhibit 1-2 P-8, it was observed by the learned Judges that it was not clear from the judgment to what property that appeal related. According to the learned counsel for the appellant the appeal related to house No. 580 but the judgment showed that although originally the claim was in respect of a house, the plaintiff ultimately confined his claim only to a site shown by the letters C.C.D.D. in the sketch filed with the plaint. It was, therefore, held by the learned Judges that it was difficult to conclude that it had anything to do with house No. 580 which was the subject-matter of litigation before them. It is thus clear that the fact which was being sought to be proved by the previous judgments was that the previous litigation related to house No. 580 but it was found that the judgments did not show that it related to that house The facts of that case, therefore, have no relevancy to the facts of the instant case.

AIR 1948 109 (Lahore) in which it was held by Achhru Ram J, that-

the decision in the previous suit is only relevant u/s 13, Evidence Act, for the purpose of proving that at that time there was a successful assertion on the plaintiffs'' part of their title to a 1/6th share in the property in dispute. The finding on which the judgment was based or the reasons given by the learned Judge in support of that finding are not relevant.

This judgment helps the appellants rather than the respondents.

Ajmer Singh and others v. Jangir Singh, Tek Singh A. I R. 1952 Pepsu 76, in which it was held that -

Section 13 of the Evidence Act makes relevant only certain transactions and instances for the purposes of establishing the existence of any right or custom.

The respondent''s counsel has not been able to cite even a single authority in support of his contention that when a judgment in a previous case is not relevant under sections 40, 41 and 42 of the Indian Evidence Act and it cannot be shown to be relevant under any other section of the Act, it can still be produced as a piece of evidence. Section 43 of the Evidence Act, which I have reproduced above, lays down that such a judgment, even if it relates to a fact in issue in the subsequent case, is not relevant at all.

The learned Judges definitely held that the judgment which is not relevant under sections 40, 41 and 42 can be taken as evidence if it is relevant under any other section of the Evidence Act. The order, Exhibit P. 3, and the judgment, Exhibit P. X., are relevant, as held above, u/s 13 of the Evidence Act and are, therefore, relevant also u/s 43 of that Act.

Tahliram Tackchand and another v Mt. Miral wife of Jamalshah A I. R 1938 Sind 132 in which it was held as under:

Therefore though a judgment in other proceedings even not inter parties is admissible in evidence as, what has been described as an integration of judicial proceedings, themselves held to be transaction within the meaning of Section 13, its admissibility is subject also to other provisions of the Evidence Act, and is subject to the overriding principle that the Evidence Act does not make a finding of fact arrived at on the evidence before one Court in one case evidence of that fact in another case. And after all the purpose of Section 13 is clear. It is to enable a right which may be constituted by a number of facts by the exercise of the right its animo domini, on numerous occasions, to be proved by transactions or particular instances in which the right or custom in question was asserted or denied, but by evidence otherwise admissible. A judgment is admissible because it is the evidence of integration of a litigation or a judicial proceeding, a transaction within the meaning of Section 13, Evidence Act, for the purpose of ascertaining the parties to the dispute and the contentions of the parties, the subject of the dispute, and the final decision of the Court, but not for the purpose of proving the reasons for the Court''s decision and for using its findings of fact as evidence of those facts in another case.

This judgment helps the appellants rather than the respondents, because it was held by the learned Judges that the previous judgment was admissible for the purpose of ascertaining the contentions of the parties, the subject of the dispute and the final decision of the Court. The contentions of the parties and the subject of dispute in the previous two proceedings giving rise to the order, Exhibit P. 3, and the judgment, Exhibit P. X., were that the plaintiffs were the heirs of Dharam Singh deceased and as such were entitled to his estate. The same right is being claimed in the present suit and, therefore, they are relevant and admissible in evidence.

AIR 1937 437 (Lahore) , in which it was held that-

judgment in a previous suit may be relevant u/s 13, Evidence Act, for establishing a particular transaction, but the findings of facts and reasons upon which the judgment is founded are no part of the transaction and cannot be relevant in a subsequent suit.

It is not clear from the reported Judgment what was the content of the judgment of the Subordinate Judge dated 1st June, 1935 which was sought to be made relevant in the suit and, therefore, this judgment is of no help to the respondents.

Gadadhar Chowdhury and Others Vs. Sarat Chandra Chakravarty and Others, , in which the learned Judges held as under:

Though the recitals and findings in a judgment not inter parties are not admissible in evidence, such a judgment and decree are admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed.

In that case it had not been shown that the assertion of the right in the subsequent suit was the same as in the earlier suit, and, therefore, this judgment does not advance the case of the respondents any further.

Rangayyan and another v. Innasimuthu Mudali A. I. R. 1956 Mad. 226, in which the learned Judge held that Section 13 "applies to all kinds of rights, whether rights of full ownership, or falling short of ownership, e. g., rights of easement etc. A right may be public, or general, or private. Further, a right may be incorporeal, e. g. a right of way; or corporeal e. g. right of ownership." It was further held that-

a transaction is a business or dealing which is carried on or transacted between two or more persons; it is something which has been concluded between persons by a cross or reciprocal action; and, in the largest sense, it means that which is done.

The learned Judge continued to observe:

On account of the governing qualification ''by which'' in regard to any transaction if it is a case which is sought to be made admissible on the ground of the right being created, claimed, modified, asserted or denied, then it must be shown to be not apart from the transaction by which it was created, claimed etc. Instance of creation or modification of a right would be inconceivable apart from the transaction ''by which'' it was created or modified.

A little later, the learned Judge held as under:

There is no impediment therefore on the wording of Section 13 of the Evidence Act as it stands, where the existence of a right is in question, it is permissible for the party relying on its existence to prove any transaction by which it was recognized, a particular instance in which it was exercised by means of recitals of boundaries in documents not inter parties. The narrower construction that is sought to be placed upon Section 13 lias no merit even otherwise because as laid down by Lord Hardwicke in ''Omychund v. Barker", (1744) 1 Atk. 21 (Z9). ''The Judges and Sages of law have laid it down that there is but one general rule of evidence the best that the nature of the case will admit.

This judgment helps the appellants rather then the respondents. According to the learned Judge any transaction, which includes a judgment by which the right was recognized, is admissible as evidence of that right u/s 13 of the Evidence Act in a subsequent suit.

After bestowing my careful consideration on the facts of the case, in the light of the provisions of Sections 13 and 43 of the Evidence Act, and the judgments referred to above, I am of the opinion that the order, copy of which is Exhibit P.X, had been rightly taken into consideration by the learned trial Court to prove the right of the plaintiffs as heirs of Dharam Singh deceased to redeem the land in suit and these documents had been wrongly kept out of consideration by the learned lower appellate Court. On the basis of these documents, I have no hesitation in holding that the plaintiffs (now represented by their legal representatives) had the right and locus standi to file the suit for redemption of the land in suit against the defendants.

In the result this appeal is accepted, the decree passed by the lower appellate Court is set aside and the decree passed by the learned trial Court is restored since the point of law involved was not free from difficulty, I leave the parties to bear their own costs of this appeal.