Leela Devi vs Madan Lal and Others

Kuldip Singh, Judge

This appeal has been directed against judgment, decree dated 31.10.2000 passed by learned District Judge, Kangra at Dharamshala, in Civil Appeal No. 102-D/XIII/99 affirming judgment, decree dated 20.03.1999 passed by learned Sub Judge-I,Dharamshala, District Kangra, in Civil Suit No. 140/1993.

The facts, in brief, are that Punnu Ram, predecessor-in-interest, of the appellants had filed suit against respondents and others for declaration that he is owner and in exclusive possession of Khasra No. 1578, measuring 0-36-71 hectares Mohal Jhikli Barol, Ghaniara. The revenue record showing Mahloo, predecessor-in-interest of Bimla Devi, Madan Lal, Hoshiar Singh and Piare Lal, who were initially original defendants, in possessory column as gair maurasi and Bal Kishan, Jai Kishan and Sant Ram in ownership column, is against the factual position on spot. Punnu Ram was not bound by such entries. The consequential relief of permanent prohibitory injunction was also prayed. It has been alleged that Punnu Ram about 30/35 years back came to live in Village Darnoo. He constructed a house and started cultivating suit land on ''galla-batai''. Mahloo elder brother of Punnu Ram continued to reside with the joint family at his native village Satowari Chath and, later on, joined Army. On retirement from Army, he joined Irrigation Department in Punjab and retired in the year 1985-86. He died in the year 1988 leaving behind Bimla Devi, Madan Lal, Hoshiar Singh and Piare Lal.

Punnu Ram started cultivating the suit land as tenant, but in view of respect and honour to his elder brother Mahloo, got entered his name as tenant over the suit land. Punnu Ram had been paying ''gallabatai'' to owners. Mahloo neither cultivated the suit land nor he was inducted as tenant by owners over the suit land.

Bal Kishan, Jai Kishan,Sant Ram owners of the suit land being clever persons in order to deprive Punnu Ram in connivance with Bimla Devi, Madan Lal, Hoshiar Singh and Piare Lal to defeat the rights of Punnu Ram, got mutation No. 597 entered in the revenue record in favour of Madan Lal, Hoshiar Singh and Piare Lal. Bal Kishan, Jai Kishan and Sant Ram in collusion with Bimla Devi, Madan Lal, Hoshiar Singh and Piare Lal filed suit but Punnu Ram was not impleaded as party in that suit, who later on was impleaded as a party.

Punnu Ram had applied for correction of revenue entries before the revenue authorities that he was in possession of suit land earlier as tenant and after coming into force H.P. Tenancy and Land Reforms Act, he became owner of the suit land. Punnu Ram requested the other side for admitting his claim, but without any positive result, therefore, the suit was filed.

Bimla Devi, Madan Lal, Hoshiar Singh and Piare Lal contested the suit by filing written statement. They took preliminary objections that suit is liable to be stayed u/s 10 CPC. The suit is not maintainable as Punnu Ram was not in possession, the Court has no jurisdiction to try the suit. Bimla Devi, Madan Lal, Hoshiar Singh and Piare Lal are owners of the suit land. Punnu Ram had no locus standi to file the suit nor he had cause of action to file the suit. The pleas of estoppel, malafide were also taken. They prayed for dismissal of the suit with special costs. On merits, they pleaded that they are in physical possession of the suit land and Punnu Ram never cultivated the suit land in any manner. Mahloo was tenant at will of the suit land and after his death Bimla Devi, Madan Lal, Hoshiar Singh and Piare Lal became tenants and owners u/s 104 of the H.P. Tenancy and Land Reforms Act. The remaining claim of Punnu Ram was denied.

Jai Kishan and Sant Ram filed written statement and they took preliminary objections of no cause of action, locus standi, bar u/s 10 CPC. It was pleaded that suit was filed against dead person Bal Kishan. Sushil Kumar a necessary party was not impleaded. The pleas of valuation and jurisdiction were taken. On merits, stand of Punnu Ram was denied. It was pleaded that Punnu Ram never cultivated the suit land. The tenancy of Mahloo, Bimla Devi, Madan Lal, Hoshiar Singh and Piare Lal on the suit land was denied. The suit land is in cultivating possession of Jai Kishan, Sant Ram and successors of Bal Kishan. It has been submitted that Bal Kishan, Jai Kishan and Sant Ram have already filed suit for declaration of their title and possession. The replications were filed. Bimla Devi died during the pendency of the suit.

On the pleadings of the parties, the following issues were framed :

Whether the plaintiff is the tenant of the suit land under defendant No. 5(a) and (b) and defendant No. 6 & 7 and has become owner by virtue of H.P. Tenancy Land Reforms Act? OPP.

Whether the defendants No. 1 to 4 are tenant in possession under defendant No. 5(a),(b) 6 & 7 of the suit land and have become owner of the same under the Act ? OPD 1 to 4.

Whether the defendants No. 6 and 7 and other co-owners are in self cultivation of the suit land? OPD 6 & 7.

Whether the entires showing the predecessor in interest of the defendant No. 1 to 4 as tenant of the suit land is wrong and contrary to the spot, as alleged? OPD 6 & 7.

Whether this court has no jurisdiction to try the suit? OPD.

Whether the plaintiffs are liable to pay special costs U/s 35-A of CPC to the defendant No. 1 to 4 ? OPD 1 to 4.

Whether the plaintiff has no cause of action? OPD 6 & 7.

Whether the plaintiff has no locus standi to sue? OPD 6 &

Whether the act and conduct of the plaintiff bar to suit? OPD 6 & 7.

Whether the suit is time barred ? OPD 6 & 7.

Whether the suit barred u/s 10 CPC? OPD 6 &7.

Whether the suit is not correctly valued for the purposes of court fee and jurisdiction ? OPD 6 & 7.

Relief.

The issues No. 1,3,4 were answered in negative, issue No. 5 was also answered in negative, but with the conclusion that Court has jurisdiction. The issues No. 2,7, 8,11 were held in affirmative, issues No. 6,9,10 and 12 were not pressed and the suit was dismissed on 20.03.1999. The appeal filed by Punnu Ram was dismissed by learned District Judge on 31.10.2000, hence second appeal. Punnu Ram died during the pendency of the second appeal and his legal representatives were brought on record. The second appeal has been admitted on following substantial question of law:-

Whether dismissal of application under Order 23 Rule 1 CPC by the first appellate court vitiated the findings?

I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by learned counsel for the appellants that the lower appellate Court has erred in dismissing the application under Order 23 Rule 1 CPC filed by Punnu Ram, predecessor-in-interest, of the appellants in the lower appellate Court. This has vitiated the findings. Punnu Ram had filed application under Order 23 Rule 1(3) read with Section 151 CPC for leave to withdraw the appeal and the suit with liberty to institute a fresh suit. This application was dismissed by learned District Judge on 01.09.2000. The learned counsel for the respondents has submitted that learned District Judge has rightly dismissed the application of Punnu Ram under Order 23 Rule 1(3) read with Section 151 CPC and no fault can be found with the order dated 01.09.2000.

The Order 23 Rule 1(3) CPC is as follows:-

(3) Where the Court is satisfied,-

(a)that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

In the application under Order 23 Rule 1(3) CPC, it has been stated that in view of the pendency of the correction application relating the suit land, in the revenue revisional Court, the present suit is liable to be returned being without jurisdiction of the Civil Court. It has been further stated that appellant wants to withdraw the appeal and suit with permission to file a fresh suit on the same cause of action after the final disposal of the matter by the competent revenue Court.

The learned District Judge in the order dated 01.09.2000 has observed that application for correction may have been filed by the appellant, after filing of the suit and once the party has already approached the Civil Court, it cannot be said that he can be permitted to withdraw the suit so that he could avail remedies available to him under the Revenue Act. The findings of the Civil Court are binding on the revenue Court and not of revenue Court on the Civil Court. There is no question of allowing the application of the appellant for withdrawal of the appeal as well as of suit with permission to file fresh suit on the same cause of action. The parties had been agitating the case before the trial Court for nearly 7 1/2 years and, therefore, no permission can be granted to withdraw the appeal and suit with permission to file fresh suit on the same cause of action. In the impugned judgment, it has also been observed that there is nothing on record to substantiate the submission that any appeal or revision has been filed or is pending. The application for withdrawal of the appeal and suit has been dismissed by making detailed reasons, no further reasons are required to be given for dismissing the application.

In K.S. Bhoopathy and Others Vs. Kokila and Others, it has been held that recourse to Order 23 Rule 1(3) cannot be taken where the claim as set out in the original suit is weak and adverse findings have been recorded against the plaintiff. It has been further held that it is the duty of the Court to satisfy itself that there exists proper grounds for granting such permission for withdrawal of the suit with leave to file a fresh suit by the plaintiff and in such matters the statutory mandate is not complied by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted at the first or the second appellate stage, prejudice to the defendant is writ large as he loses the benefit of the decision in his favour in the lower Court.

The permission to withdraw the appeal and suit was sought by Punnu Ram, predecessor-in-interest, of the appellants on the ground that he had filed appeal, revision against the decision in correction of revenue entry case. The learned District Judge has observed that nothing has been placed on record that, in fact such appeal or revision has been filed. Moreover, decision of the revenue authority in correction of revenue entry case is subject to decision of Civil Court. The Section 46 of the H.P. Land Revenue Act, 1954, provides that if any person considers himself aggrieved as to any right of which he is in possession by any entry in a record of rights or in a periodical record, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1963.

It is, thus, clear that Civil Court has superior jurisdiction for adjudicating a dispute regarding an entry in record of rights or a periodical record. It has not been pointed out how requirement of Order 23 Rule 1(3) CPC has been satisfied by appellants or their predecessor-in-interest Punnu Ram even if it is assumed that any appeal or revision was filed by Punnu Ram against the decision in a revenue entry case. The learned District Judge has committed no error in refusing the predecessor-in-interest of the appellants to withdraw the appeal, suit in the facts and circumstances of the case. The trial Court decided the controversy against Punnu Ram and by filing the application under Order 23 Rule 1(3) CPC, he and his successors cannot be permitted to wipe out the findings recorded against them. There is no merit in the appeal, therefore, substantial question of law is decided against the appellants.

In view of above, the appeal fails and is accordingly dismissed with no order as to costs.