Hukam Chand and Others vs Charan Dass and Others

V.K. Ahuja, J.—This is a regular second appeal filed by the appellants u/s 100 of the CPC against the judgment and decree, dated 25.5.2000, passed by the learned Additional District Judge, Mandi, reversing the judgment and decree passed by the learned Sub Judge Ist Class, Mandi, dated 31.3.1994.

Briefly stated, the facts of the case are that respondent No. 1 Charan Dass, hereinafter after referred to as the plaintiff, filed a suit for permanent prohibitory injunction with consequential relief of possession as against the present appellants and profroma respondents for grant of an injunction. It was alleged that the land comprised in Khasra No. 653, measuring 0-6-8 bighas, has been recorded in the ownership of Zalam Singh and Wazir Singh, and in possession of Smt. Darshnu Devi. Smt. Darshanu Devi was the grand mother of the plaintiff and was non-occupancy tenant of the suit land. It was alleged that the possession of defendant late Nokhu has been recorded wrongly and that under the Himachal Pradesh Tenancy and Land Reforms Act, after the death of said Darshanu, the plaintiff had become the absolute owner of the suit land. Smt. Darshanu Devi had bequeathed her property in favour of the plaintiff by way of Will. It was further alleged that the defendants, without any right, title of interest have illegally encroached upon a portion of the suit land comprised in Khasra No. 653/1 measuring 0-2-12 bigha in October, 1980, behind the back of the plaintiff and has also constructed a house forcibly. The defendants also tried to encroach upon the remaining area measuring 0-3-0 bigha comprised in Khasra No. 653/3 and is causing unlawful interference in the suit land. The plaintiff has prayed for the relief of permanent injunction against the defendants in regard to Khasra No. 653/3 and has also prayed for possession of the land comprised in Khasra No. 653/1.

Defendant No. 1 pleaded that the suit land was in his exclusive possession. It was further pleaded that the defendant had constructed a shop and cow shed over a portion of the same in the year 1971-72. The defendant has raised the above construction on Khasra No. 653/1 measruing 0-4-18 bigha and has constructed another house and courtyard over Khasra No. 653/2 measuring 0-1-10 bigha and has also sown crops on some portion of the suit land. The land comprising khasra No. 653/2 was given by the defendant to Smt. Darshanu Devi for her residence but she was wrongly recorded as non-occupancy tenant in possession of the entire suit land. The defendant, on learning of the wrong entries, moved an application for correction before the A.C. 2nd Grade, Mandi, who passed an order on 11.7.1977. Smt. Darshanu Devi had admitted before the A.C. 2nd Grade that the house of the defendant is situated over Khasra No. 653 and he is in possession of the land measuring 0-4-18 bigha and she herself was in possession of the land measuring 0-1-10 bigha. The defendants, in the alternative, also pleaded adverse possession and denied that any Will was executed by Smt. Darshanu Devi in favour of the plaintiff, who has no right, title or interest in the suit land.

On the pleadings of the parties, the following issues were settled by the learned trial Court:

Whether the defendants encroached upon 0-2-12 bighas out of the suit land in the year 1980, as alleged? OPP

Whether the plaintiff is owner of suit land? OPP

Whether the plaintiff is in possession of suit land other than 0-2-12 bighas? OPP

Whether the defendant is in adverse possession of 0-4-18 bighas out of the suit land? OPD

Whether the suit is properly valued for the purposes of court fee and jurisdiction? If not, what is the correct value? OP parties.

5-A. Whether the plaintiff is entitled to the vacant possession of Khasra No. 653/1, measuring 0-2-12 bigha? OPD

5-B. Whether the defendant No. 1 is owner in possession of the suit land, as alleged? OPD

5-C. Whether the entries in favour of the defendant No. 1 are collusive and the order dated 11.7.1977 is void ab initio? OPP

6-A. Whether the suit is time barred? OPD

6-B. Whether the plaintiff has no locus standi to file the present suit? OPD

6-C. Whether the plaintiff is estopped to file the present suit from his act, deeds and conduct? OPD

Relief.

Parties led their evidence and the learned trial Court, vide its impugned judgment, decreed the suit of the plaintiff for injunction in regard to the land comprised in Khasra No. 653/2 over which the house of the plaintiff was situated, and for vacant land and the relief of permanent injunction was also granted in favour of the plaintiff and as against the defendants not to interfere in the suit land.

An appeal was preferred by the plaintiff Charan Dass against the aforesaid judgment and the suit of the plaintiff was decreed for vacant possession of the suit land by demolition of the house raised by the defendants in Khasra No. 653/1 and the defendants were also restrained from interfering in the possession of the plaintiff over the remaining suit land. By another judgment of the same date on an appeal filed by defendants Het Ram etc., the learned Appellate Court dismissed the appeal filed by the defendants. These two separate judgments were passed by the learned Appellate Court as against one judgment and decree passed by the learned trial Court. Both the parties had preferred separate appeals before the Appellate Court and both the appeals should have been disposed of by a common judgment, but the learned Appellate Court, in its wisdom, proceeded to decide both the appeals separately by passing different orders, as detailed above. The present appeal has been filed by Hukam Chand etc., who were the defendants before the learned trial Court. No second appeal appears to have been filed by the plaintiffs against the judgment and decree passed by the court below.

On appraisal of the record of the case, it is clear that on one hand there is judgment of the learned District Judge, dated 25.5.2000, vide which the appeal filed by the defendants against the judgment and decree of the court of the learned Senior Sub Judge was dismissed and the findings of the Senior Sub Judge granting the relief of injunction in regard to the part of the land comprised in Khasra No. 653/2 and in regard to the remaining vacant land in Khasra No. 653/3 in favour of the plaintiff and against the defendants were affirmed. Once that judgment and decree of the learned trial Court was upheld, the conclusion is that the suit of the plaintiff for injunction stood decreed. However, there is another judgment of the learned First Appellate Court, which is under challenge and that is also of the same date vide which the suit has been decreed for vacant possession of the suit land by demolishing the house in Khasra No. 653/1 and the relief of injunction has been granted in regard to Khasra Nos. 653/2 and 653/3, though in the plaint, the relief was claimed in regard to the land comprised in Khasra No. 653/1 and 653/3, as per the amended plaint as well as the original plaint and there was no mention of the land comprised in Khasra No. 653/2. The said appeal was dismissed filed by the defendants against which the present appeal has been filed. Different orders have been passed in both the aforesaid appeals. On one hand, the suit for injunction stands decreed and on the other hand, there is a decree for possession of the land as well as for injunction. The learned First Appellate Court, while allowing the appeal filed by the plaintiff should have mentioned that the relief granted in favor of the plaintiff is being modified to this extent and, therefore, the judgment of the learned trial Court would have merged in the present judgment, but the findings granting the relief of injunction have been affirmed and for the same land, the relief of possession has been granted by the learned First Appellate Court. These should have been depicted in common judgment and thereby both the appeals should have been disposed of by a common judgment to avoid any confusion.

In my view, the approach of the learned Appellate Court in passing two different judgments against the same judgment and decree of the learned trial Court cannot be said to be correct and both these appeals since they have arisen from one judgment should have been consolidated together and both should have been disposed of by common judgment. Different judgments have been passed by the learned Appellate Court which has made the task of this Court difficult to decide the matter and as such in my opinion, the case deserves to be remanded to the learned First Appellate Court to decide both the appeals preferred by the plaintiff and the defendants afresh in light of the observations made hereinabove. I am aware of the fact that no appeal had been preferred by the plaintiff, but since contradictory judgments have been passed by the learned First Appellate Court modifying the relief on one hand and affirming the judgment of the learned trial Court on the other hand, therefore, both these judgments are set aside. As such, the case is remanded back to the learned First Appellate Court with the directions to restore both these appeals to their original numbers, dispose of them by a common judgment after consolidating the same, and after rehearing the parties, pass the judgment in accordance with law. Needless to say that the matter was decided in the year 2000, therefore, it deserves to be disposed of by the First Appellate Court on or before 31.12.2010.

The appeal filed by the appellant, in these circumstances, is accepted. The parties, through their Counsel, are directed to appear before the learned Additional District Judge, Mandi on 27.9.2010.