Nathu Ram and Others vs Pukh Raj and Others

Vineet Kothari, J—These connected first appeals under Section 96 CPC are being disposed of by this common judgment. The facts are taken from S.B. Civil First Appeal No. 120/1988 - Nathuram & Anr. Vs. Pukhraj Mahendra Kumar & Anr.

The defendants Nathuram and Prabhu Ram both sons of Moti Bhil, the two brothers have filed the present two first appeals under Section 96 of the Civil Procedure Code, aggrieved by the judgment and decree of the learned District Judge, Sirohi dated 15.07.1988 in Civil Suit No. 146/1984 (46/1982) - Pukhraj Mahendrakumar Vs. Shri Jetha, Shri Prabhuram and Shri Nathuram. The suit was filed for mandatory injunction and for possession of a plot of land measuring 330 feet x 132 feet, which was purchased by the plaintiffs from seller Bharat Kumar S/o. Smt. Shanti Bai for Rs. 7,000/- on 22.10.1969 by registered sale deed. The suit was decreed in favour of the plaintiffs by the learned trial court and the defendants Shri Jetha S/o. Lalaji (uncle of Nathuram) and Nathuram and Prabhuram, and the defendants-Prabhuram and Nathuram were directed to hand over the possession of the suit land in question to the plaintiffs.

While deciding the issue No. 1 about the title and the rightful possession of the plaintiffs since 1969, the learned trial court returned the following findings:-

The defence set up by the defendants about their own title on the said plot claiming it to be falling within Khasra No. 1081, the learned trial court held against the defendants that the defendants had no right, title or interest even over that land of Khasra No. 1081 and they had waived their rights by giving an application before the learned Sub Divisional Officer, Sirohi on 01.09.1975 that the land of Khasra No. 1081 was also wrongly entered in their name and the entries may be corrected and the recovery of revenue (lagaan) from them may be stopped. The sale in favour of the plaintiffs was in Khasra No. 1080 of the aforesaid plot. But since the defendants unauthorizedly entered into that suit land, therefore, the relief of possession was also claimed by the plaintiffs.

The findings of the learned trial court on issue No. 4 are also quoted below for ready reference:-

The decree passed by the learned court below is also quoted below for ready reference:-

Being aggrieved by the same, the defendants filed the present first appeal before this Court on 06.10.1988.

Mr. H.R. Soni, learned counsel appearing for the defendants submitted that the patta issued in favour of Smt. Shanti Bai, the mother of Bharat Kumar, who executed the sale deed in favour of the plaintiffs on 22.10.1969 was itself not valid and legal, as the condition of raising four feet high boundary wall on the said land was not satisfied by the plaintiffs. No survey No. 3, as mentioned in the sale deed, was mentioned in the patta. The Jama Bandi (revenue record) clearly recorded the name of defendants Nathuram and Prabhuram as Khatedars in Khasra No. 1081, whereas the sale deed in favour of plaintiffs refers to Khasra No. 1080 and the neighbourhood of the property sold did not match with the land in possession of the defendants, and therefore, under the garb of that sale deed, the decree for possession could not have been passed in favour of the plaintiffs. He also submitted that the patta issued for the alleged price of Rs. 1500/- for 87,120 square feet, which is equivalent to 5 bighas @ Rs. 300/- bigha was also incorrect since the market price of that land was much higher. Mr. H.R. Soni also refuted that the defendants had entered into any compromise with the other similarly situated purchaser of 1/3rd portion of the said land purchased from Smt. Shanti Bai, namely, Shri Mafatlal, and the suit filed by the defendants for cancellation of such alleged compromise decree was dismissed, and though a second appeal (S.B. Civil Second Appeal No. 302/2008 - LRs of Nathu Ram & Anr. Vs. LRs of Mafat Lal) filed by the defendants against the same, was dismissed by this Court on 02.12.2010, and even the Special Leave to Appeal (Civil). . . ./2011 CC 6560/2011 - Nathu Ram (D) TR. LRs. & Anr. Vs. Mafat Lal Jain (D) TR. LRs filed by the defendants against that order came to be dismissed by the Hon''ble Supreme Court on 18.04.2011, but the present respondents-plaintiffs Pukhraj and Chhaganlal could not take any advantage of the same. About the findings on issue No. 4 quoted above, Mr. H.R. Soni submitted that the defendants never filed such application giving up their rights in Khasra No. 1081 and it was for the plaintiffs-respondents to prove that any such waiver was made by the defendants before the learned Sub Divisional Officer, Sirohi vide their application dated 01.09.1975, as alleged.

Mr. H.R. Soni relied upon the following judgments in support of his submissions, which are mostly not applicable in the facts of the present case:-

Theja V. Nagarjuna Vs. V. Nagarjuna, AIR 2000 SC 3529 : (2000) 7 JT 342 : (2000) 9 SCC 453 : (2000) AIRSCW 3213 .

Panni Lal Vs. Rajinder Singh and Another, (1993) 1 DMC 603 : (1993) 3 JT 340 : (1993) 2 SCALE 806 : (1993) 4 SCC 38 : (1993) 3 SCR 589 .

Karuppaswamy and Others Vs. C. Ramamurthy, AIR 1993 SC 2324 : (1993) 2 BC 341 : (1993) 4 JT 192 : (1993) 3 SCALE 165 : (1993) 4 SCC 41 : (1993) 1 SCR 121 Supp .

Dev Kishan and Others LRs. of Kishan Lal Vs. Ram Kishan and Others, AIR 2002 Raj 370 : (2003) 2 RLW 1250 : (2002) 4 WLC 130 : (2002) 4 WLN 481 .

Vidhyadhar Vs. Mankikrao & Anr., 1999 (1) Apex Court Journal 438 (SC).

Ram Khilari Vs. State of Rajasthan, AIR 1999 SC 1002 : (1999) CriLJ 1450 : (1999) 1 Crimes 81 : (1999) 1 JT 453 : (1999) 1 SCALE 417 : (1999) 9 SCC 89 : (1999) AIRSCW 629 : (1999) 2 Supreme 28 .

Hardayal and Another Vs. Jaggasingh and Others, AIR 1969 Raj 89 .

M. Narayana Rao Vs. G. Venkata Reddy and Others, AIR 1977 SC 208 : (1977) 1 SCC 771 : (1977) 1 SCR 490 .

Amrendra Pratap Singh Vs. Tej Bahadur Prajapati and Others, AIR 2004 SC 3782 : (2004) 98 CLT 19 : (2003) 9 JT 201 : (2003) 10 SCALE 45 : (2004) 10 SCC 65 : (2003) 6 SCR 42 Supp : (2004) AIRSCW 4103 : (2003) 8 Supreme 597 .

Papaiah Vs. State of Karnataka and others, (1996) 7 AD 590 : AIR 1997 SC 2676 : (1996) 9 JT 292 : (1996) 7 SCALE 100 : (1996) 10 SCC 533 : (1996) 5 SCR 206 Supp : (1997) AIRSCW 2642 : (1996) 7 Supreme 617 .

State of Madhya Pradesh Vs. Babu Lal and Others, AIR 1977 SC 1718 : (1977) 2 SCC 435 .

Smt. Surasaibalini Debi Vs. Phanindra Mohan Majumdar, AIR 1965 SC 1364 : (1965) 1 SCR 861 .

Banwari lal Vs. Anand & Ors., 2012 Law Suit (Raj.) 930.

Chhail Singh and Others Vs. State of Rajasthan and Others .

15 Chhail Singh and Others Vs. State of Rajasthan and Others .

Balu and Others Vs. Birda and Others, AIR 1983 Raj 13 : (1982) WLN 258 .

Dau Lal Vs. State, 1983 RRD 165.

Hansraj Vs. Pyarchand, 1957 RLW 203.

Firm Seth Hiralal Hazarilal Vs. Jagan Nath, AIR 1957 Raj 298 .

Nutan Kumar and others Vs. IInd Additional District Judge, Banda and others, AIR 1994 All 298 : (1993) AWC 1090 .

S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 : (1993) 2 BC 546 : (1993) 6 JT 331 : (1995) 109 PLR 293 : (1993) 4 SCALE 277 : (1994) 1 SCC 1 : (1993) 3 SCR 422 Supp : (1994) 1 UJ 1 .

Devraj Vs. Hazarilal, 1959 RLW 114.

Murarilal vs. State of M.P., 1980 CriLJ 396 (SC) .

Nagar Palika, Jind Vs. Jagat Singh, Advocate, AIR 1995 SC 1377 : (1995) 3 JT 281 : (1995) 111 PLR 225 : (1995) 2 SCALE 512 : (1995) 3 SCC 426 : (1995) 3 SCR 9 : (1995) 2 UJ 241 .

Government of Andhra Pradesh and others Vs. Karri Chinna Venkata Reddy and others, AIR 1994 SC 591 : (1995) 1 SCC 462 Supp .

Kalyan Singh Vs. Smt. Chhoti Widow of Gangaram & Ors., WLN 1973 (Part-1) 240.

Ganesh Prasad Vs. Badri Prasad Bholanath and Others, AIR 1980 All 361 .

Ram Kishore Sen & Ors., Vs. Union of India & Ors., AIR 1962 Calcutta 282 (V. 52 C. 52).

Damodaran Vs. Karimba Plantations Co. Ltd. and Others, AIR 1959 Ker 358 .

Rishal Singh Vs. Smt. Sarita Manocha, 1997 DNJ (Raj.) 578.

Firm Ramchand Bhagirath and Others Vs. Ganpat Ram, (1972) WLN 1116 .

ADIL Jamshed Frenchman (D) by LRs. Vs. Sardar Dastur Schools Trust and Others, AIR 2005 SC 996 : (2005) 1 CTC 718 : (2005) 2 JT 332 : (2005) 141 PLR 227 : (2005) 2 SCC 476 : (2005) 2 UJ 781 .

Smt. Jamna and Others Vs. Bhuwana, AIR 1998 Raj 214 .

Abdul Gani Vs. Saduram and Others, (1977) WLN 641 .

Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, AIR 2008 SC 2033 : (2008) 3 CLT 23 : (2008) 4 SCALE 718 : (2008) 4 SCC 594 : (2008) AIRSCW 4959 .

The multiplication of authorities does not help the appellants, as most of the judgments under Section 42 of the Rajasthan Tenancy Act are not applicable to the facts of the present case as it is not a case of sale of land belonging to SC/ST Category to a person of General Caste.

Per contra, Mr. R.K. Thanvi, Senior Advocate assisted by Mr. R.K. Purohit, Mr. Narendra Thanvi and Mr. Shailesh Agarwal vehemently supported the impugned judgment and decree, and urged that the defendants cannot be allowed to go back on their own admission and they have no right, title or interest over the suit land in question and the chain of title in favour of the plaintiffs was duly proved by the plaintiffs and the possession decree for the unauthorized possession of the defendants has rightly been granted by the learned court below. Taking this Court through the statements of PW-1 Pukhraj, DW-2 Prabhuram and DW-1 Jetha, Mr. Thanvi urged that the learned trial court has rightly decided the issue No. 4 in favour of the plaintiffs, that even for so called claim of the defendants over khasra No. 1081, with which the plaintiffs have no connection, the defendants had given up their rights admitting that it was wrongly entered in their favour in Jamabandi (revenue record). Mr. Thanvi urged that in the year 1948 itself, the land in question was converted into abadi land, and therefore, khasra No. 1081 was never recorded after 1948 as agricultural land, and out of the said abadi land, the patta was issued in favour of Smt. Shanti Bai for price of Rs. 1500/-, out of which three sales were made by her or her son Bharat Kumar in favour of Pukhraj, Mafatlal and one Chhaganlal (respondent in S.B. Civil First Appeal No. 52/1991 - Nathu Ram & Anr. Vs. Chhagan Lal & Anr.). A suit for injunction was filed by Mafatlal against these very defendants for their purported encroachment, in which they entered into a compromise admitting the validity of patta issued in favour of Smt. Shanti Bai and there being no right, title or interest in their favour in the said suit land. Later on, a futile attempt was made by the defendants to seek cancellation of that compromise decree, which was rejected upto the Hon''ble Supreme Court. Mr. R.K. Thanvi, therefore, urged that a different stand could not be taken by the defendants with respect to the other two sales in the present first appeals filed by them against the decree for possession and mandatory injunction asking them to vacate the said land and hand over the peaceful possession to the plaintiffs. Mr. R.K. Thanvi therefore, prayed that the present first appeals of the defendants deserve to be dismissed with costs and suitable mesne profits should be given for the unauthorized occupation and use of the plaintiffs'' land by the defendants since the date of filing of suit in 1984.

I have heard the learned counsels for the parties at length and perused the record as well as the judgments cited at the Bar.

In the considered opinion of this Court, the present first appeals of the defendants-Nathuram, Prabhuram and Jetha Ram (not even an appellant) have no merit and the same deserve to be dismissed.

The first and foremost reason is the estoppel for the defendants to take the different stand in different litigations for the same suit land, as the one taken against the purchaser of 1/3rd portion of the same land, namely, Mafatlal. In that matter, the defendants have lost the legal battle upto the Hon''ble Supreme Court of India. The relevant extract of the order passed by this Court, while dismissing S.B. Civil Second Appeal No. 302/2008 - LRs of Nathu Ram & Anr. Vs. LRs of Mafat Lal in a suit filed by them for setting aside the compromise decree is quoted below for ready reference:-

"4. The present suit No. 2/1989 was filed by the present plaintiffs for setting aside of that compromise/consent decree dated 01.09.1975 on the ground that the signatures on the compromise/written statement filed by the defendant was not that of real defendants, namely, Nathu Ram and Praburam; and secondly, one of the defendant, namely, Prabhuram was minor on the date of alleged compromise between the parties.

Learned trial court as well as learned appellate court concurrently dismissed this subsequent suit filed by the present appellants, and hence, this second appeal has been filed. Learned counsel for the appellants, Mr. T.S. Champawat urged that the opinion of hand-writing expert produced before the learned trial court even though marked as Exhibit, was not believed by the learned trial court and the suit has wrongly been dismissed. Secondly, the School Certificate produced in respect of age/date of birth of one of the defendant-Prabhuram has also been disbelieved even though it was marked Exhibit by the learned trial court. He further argued that since no objection was raised by the original plaintiffs, defendants in the present suit, Mafat Lal, therefore, the finding arrived in the present matter by the learned trial court rejecting the suit of the plaintiffs deserve to be set aside. In support of aforesaid contentions, Mr. T.S. Champawat placed reliance on the judgment delivered by Hon''ble the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, AIR 2003 SC 4548 : (2004) 6 JT 442 : (2004) 136 PLR 612 : (2003) 8 SCALE 474 : (2003) 8 SCC 752 : (2003) 4 SCR 450 Supp : (2003) AIRSCW 5316 : (2003) 8 Supreme 193 .

On the other hand Mr. Sandeep Shah, learned counsel for the respondents, the original plaintiff-Mafat Lal vehemently submitted that finding of facts given by the learned courts below cannot be said to be perverse in any manner, and no substantial question of law arises in the present second appeal. He submitted that as far as the opinion of the hand-writing expert is concerned, in the absence of the said hand-writing expert having been produced before the learned trial court to prove his opinion, the contents thereof cannot be relied upon by the learned trial court. In support of his contention, he placed reliance on the judgment delivered by Hon''ble the Supreme Court in the case of Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. and Others, AIR 2010 SC 806 : (2009) 4 CompLJ 283 : (2009) 12 JT 377 : (2009) 12 SCALE 474 : (2009) 9 SCC 709 : (2009) 14 SCR 424 , in which the Apex Court has held that evidence of hand-writing expert is admissible, when (i) expert is heard, (ii) he must be within a recognized field of expertise, (iii) his evidence must be based on realistic principles, and (iv) he must be qualified in that discipline and that without examining the expert as a witness, no reliance can be placed on his opinion alone.

So far as the other ground viz. date of birth of one of the original defendant, namely, Prabhuram is concerned, learned counsel for the respondent placed reliance on the decision of Hon''ble the Supreme Court in the case of Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 : (1988) 3 JT 389 : (1988) 2 SCALE 328 : (1988) 2 SCR 1 Supp : (1988) 2 UJ 442 , wherein in para 14 and 15 it has been held that merely because the documents such as extract of School Register, mark list or certificate of Education Board etc. are proved, it does not mean that the contents of documents are also proved. Mere proof of such documents would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Learned counsel for the respondent also relied upon a decision of Hon''ble the Supreme Court delivered in the case of Ravinder Singh Gorkhi Vs. State of U.P., AIR 2006 SC 2157 : (2006) CriLJ 2791 : (2006) 5 JT 468 : (2006) 5 SCALE 682 : (2006) 5 SCC 584 : (2006) 3 SCR 615 Supp : (2006) AIRSCW 2648 : (2006) 4 Supreme 337 .

He also urged that compromise deed produced before the learned trial court on 01.09.1975 was properly verified by the learned trial court itself and the defendants, Nathu Ram and Prabhuram were duly identified by their advocate Mr. B.L. Gemawat; and in fact, in the present suit, the plaintiffs-appellants, Nathu Ram and Prabhuram merely produced a photostat copy of the said compromise concealing the portion thereof, in which identification part of the said advocate was there, upon which the defendant-Mafat Lal (original plaintiff) submitted a certified copy of the original compromise deed before the learned trial court and upon satisfying about the genuineness of signatures and verification, learned trial court dismissed the present suit. He, therefore, submitted that there is no question of resiling back from the said compromise and the learned courts below were perfectly justified in rejecting the present suit filed by the original defendant-Nathu Ram and Prabhuram for setting aside such consent decree.

I have given my thoughtful consideration to the rival submissions advanced by the learned counsels for the parties at bar and carefully gone through the judgments and decree passed by the learned courts below and, so also, perused the authorities cited before me. This Court is satisfied that learned courts below have not committed any error in rejecting the suit filed by the original defendants, and the present plaintiffs-appellants by impugned judgments. The evidence sought to be relied upon by the present plaintiffs-appellants, namely, hand-writing expert''s opinion and the school certificate with respect to age of Prabhuram were the evidence, which do not have any credibility and were not even properly proved before the learned trial court. As held by the Hon''ble the Supreme Court in the case of Ramesh Chandra Agrawal (supra), when the so-called expert has not been produced as witness before the learned trial court, the contents of his opinion could not be relied upon by the learned trial court and mere marking of a document as Exhibit, does not render such documents worthy of any credence unless it is properly proved by the plaintiffs. Secondly, as held by Hon''ble the Supreme Court in the case of Birad Mal Singhvi (supra), the school certificate produced by the plaintiffs with respect to age of Prabhuram, has also been disbelieved as he himself admitted in the cross-examination that at the time of his marriage, he was 21 years of age.

Be that as it may; these are findings of facts given by the learned courts below and do not bear any stigma of perversity on the basis of the evidence, which has been produced before the learned trial court. The efforts of the original defendant, presently appellants-plaintiffs, to get a decree of consent dated 01.09.1975 in the suit for injunction set aside, in the present round of litigation on the basis of so-called evidence produced before the learned trial court, also cannot be appreciated. This would put a closed litigation upon a compromise into a pool of endless litigation once again if this Court were to interfere with such concurrent findings of fact in a second appeal under Section 100 of CPC. No substantial questions of law arises in the present appeal and the same deserves to be dismissed.

Accordingly, the present second appeal being devoid of merit fails and the same is hereby dismissed. No costs."

The Special Leave to Appeal (Civil). . . ./2011 CC 6560/2011 - Nathu Ram (D) TR. LRs. & Anr. Vs. Mafat Lal Jain (D) TR. LRs, was also summarily dismissed by the Hon''ble Supreme Court on 18.04.2011. The aforesaid order therefore, became final.

The defendants therefore, cannot be allowed to agitate now that they have an independent right over the suit land, which according to them, falls within khasra No. 1081, for which they possess a Jamabandi in their favour. Even if it was to be assumed for arguments sake, though it is not so, the falsity of their claim even on the part of khasra No. 1081 stood belied by their own application filed before the learned Sub Divisional Officer, Sirohi on 01.09.1975 on the basis of which issue No. 4 was decided against them, as quoted above.

Besides this, the defendants vide Exhibit-2-Patta in favour of Smt. Shanti Bai and Exhibit-5, a Blue Print Map prepared by the Public Works Department and permission given by the Municipal Council for raising the construction of the boundary wall in favour of the plaintiff-Pukhraj clearly shows that the concerned government departments were clear and sure about the identity of the land belonging to the plaintiffs and the plaintiff had also raised construction of a boundary wall thereon and predecessor-in-title had earlier constructed the pillars of 4 feet height over the said boundary of the land. Therefore, there is no confusion or mistake about the identity of the land of the plaintiffs, for which the suit has been decreed in their favour, and there is no merit in the defence purportedly raised by the defendants in the present suits. Not only they have tried to raise a false plea on the basis of Jamabandi in their favour for khasra No. 1081, for which they could never establish its contiguous existence with khasra No. 1080, on which the patta was issued in favour of Smt. Shanti Bai way back in the year 1948 and without challenging any of the sale deeds or patta in favour of Smt. Shanti Bai, the defendants cannot be permitted to claim any right of possession over the suit land in question. Therefore, their defence has rightly been negatived by the learned trial court and there is no evidence on record to establish any semblance of right of the defendants over the said suit land.

The judgments relied upon by Mr. H.R. Soni, learned counsel appearing for the defendants-appellants are of little help to the appellant, as factually, there is no evidence on record on the basis of which, they could be said to have any valid claim over the land in question, nor it is a case of transfer of land belonging to the reserved category. There is no reason to take a different view of the matter than the one taken by the learned trial court by detailed, just and reasoned judgment based on the correct appreciation of the relevant and cogent evidence in favour of the plaintiffs, and therefore, the present first appeal of the defendants are liable to be dismissed.

Accordingly, the present first appeals are dismissed with costs of Rs. 5000/- each. The defendants-appellants shall also pay mesne profits @ Rs. 1000/- per year from the year 1984 to the plaintiffs-respondents in each appeal for the unauthorized use and occupation of the suit land in question and the defendants are also directed to hand over the peaceful and vacant possession of the suit land in question to the plaintiffs-respondents within a period of three months from today, and clear off the arrears of the mesne profits and costs within the aforesaid period of three months. The plaintiffs-respondents shall be otherwise entitled to expeditious execution of the decree and also initiate contempt proceedings before this Court. Copy of this order may be sent to the concerned parties as well as the learned trial court below forthwith.