Ram Gopal and others vs Hira and others

B.S. Yadav, J.—The facts leading to this second appeal are that the present appellants who are the sons of the vendors, Mansukh, Ram Sarup and Tara Chand, had filed the suit for possession of agricultural land measuring 100 Bighas 4 Biswas by preemption. This land was sold by the vendors to the present respondents Hira, Birbal and Harmukh for Rs. 14,000/ by means of a registered sale deed dated 7th December, 1965. The plaintiffs claimed superior right of preemption on the ground that they were the sons of the vendors.

The vendeedefendants contested the suit and pleaded that they were tenants on the suit land and in recognition of their right, the suit land had been sold to them. They also pleaded that they were tenants on the suit land and therefore,plaintiffs had no right of preemption. They further took up other pleas, but it is not necessary to refer to them, because the only controversy between the parties that was raised before me, was, whether the vendees were tenants on the suit land, at the time they purchased it.

It may be mentioned here that the learned trial Court had held the vendees to be tenants at the relevant time. It was further held that the sale had taken place in recognition of their right of preemption as tenants. In view of that finding and findings on some other issues, the plaintiffs'' suit was dismissed. Feeling aggrieved, the preemptors filed an appeal which was heard by the learned Senior Subordinate Judge (with Enhanced Appellate Powers), Bhiwani. He held that out of the vendees, Hira and Harmukh were the tenants of the suit land and therefore, the sale qua them was protected under section 17A of the Punjab Security of Land Tenures Act, 1953 (briefly the Act). Qua Birbal vendee, it was held that he was not a tenant on the suit land. Accordingly, he partly accepted the appeal. It was dismissed so far as the shares of Hira and Harmukh were concerned. The judgment and decree of the trial Court were set aside so far as Birbal vendee was concerned and qua his share which was 1/3rd in the suit land, a decree for possession by preemption was passed in favour of the plaintiffs on payment of Rs. 6,303/35 paise. Still not satisfied, the plaintiffs have now come to this Court in second appeal.

The vendees have also filed cross objections against that part to the decree of the learned lower appellate Court by which the suit of the plaintiffs had been decreed qua Birbal vendee. This order will dispose of the appeal, as well as the crossobjections.

Before I proceed further, I may take up Civil Miscellaneous No. 908C of 1985 filed by the appellants under Order 41 rule 27 read with Section 151 of the Code of Civil Procedure for permission to lead additional evidence. They want to produce in evidence copy of the ejectment order dated 31st December, 1958 passed by the Assistant Collector I Grade under the Act for ejectment of the presentvendees. That application was filed by Haria who was earlier the owner of the suit land. The circumstances in which this application was filed may be briefly narrated.

As appears from the pleas taken by the vendees in their written statement and the evidence led by them, Haria was the owner of the suit land measuring 100 Bighas 4 Biswas along with some other land. He sold the land to Mansukh, Ram Sarup and Tara Chand, the present vendors by means of a sale deed dated November 4, 1964. The present vendees Hira, Harmukh and Birbal filed a suit for preempting that sale on the ground that they were tenants on the suit land under the vendor at the time of sale.Their suit was dismissed by the trial Court vide judgment, copy Ex.PW 2/A, on the ground that an ejectment order had been passed against them prior to that sale and they ceased to be tenants on the suit land on the date of that sale. For coming to this conclusion, reliance was placed upon Hans Raj and others v. Smt. Brahmi Devi, 1960 PLJ 71. The then preemptor, namely Hira and others filed an appeal against that judgment which was also dismissed. They then filed Regular Second Appeal No. 1018 of 1968, decided on November 2, 1973 in this Court. It was accepted qua Hira and Mansukh and qua Birbal it was dismissed. The judgment is reported as Hira Singh and others v. Haria and others, 1973 PLJ 760. It was held in that case that the tenancy of Birbal had come to an end when the ejectment order was passed on 31st December, 1958. However, the tenancy of Hira and Harmukh did not cease in spite of that order as qua them, the ejectment order was conditional one and they were not to be ejected forthwith from their respective portions of the land and were to be ejected only when they were accommodated on some other (surplus) land. Thus, the earlier suit qua Hira and Harmukh was decreed with respect to the land measuring 59 Bighas which was under their tenancy. Hira and Harmukh did not take out execution proceedings in respect of that decree as during the tendency of that second appeal, the present vendors who were vendees in the earlier sale sold the suit land to them and Birbal. The vendees in the present suit had taken a plea that the suit was liable to be stayed on account of the pendency of that second appeal. The learned trial Court did not stay the suit. However, as noticed earlier, the plaintiffs'' suit was dismissed by it. The learned lower appellate Court stayed the hearing of the appeal in view of the stay order granted in the earlier second appeal. Thus, before the learned Courts below it was not disputed by the vendeedefendants that in respect of the suit land an ejectment order had been passed qua them though it was a conditional one so far as Hira and Harmukh vendees were concerned. In fact, in the present second appeal also, the learned counsel for the respondents, in reply to the argument of the learned counsel for the appellants, first, urged that the judgment in Hira Singh''s case (supra), so far as the finding given in that case, that Hira and Harmukh were the tenants on the suit land, was res judicata. When it was put to him, how the present plaintiffs could be held to be bound by that judgment as they were not parties to it, the learned counsel for the respondents changed the trend of his arguments and urged that the certified copy of the ejectment order had not been produced on the record and therefore, it cannot be said that it related to the suit land. He further urged that the contents of the ejectment order narrated in Hira Singh''s case (supra) could not be taken into consideration for deciding the present appeal. In support of his contention, he also referred to Khub Narain Missir and others v. Ramchandra Narain Dass, AIR 1951 Patna 340, to show that the facts in the previous judgment cannot be used in a subsequent case to decide the points which are in issue in that case. Thereupon the appellants filed this application for permission to lead additional evidence.

The learned counsel for the respondents objected to the production of the certified copy of the ejectment order dated December 31, 1958 at this stage and argued that a party should not be allowed to remove the lacuna occurring in his case. In support of his contention, he placed reliance upon State of U.P v. Manbodhan Lal Srivastava, AIR 1957 S.C. 912 wherein it was remarked :

"It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. Of course, the position is different where the appellate Court itself requires certain evidence to be adduced in order to enable it to do justice between the parties."

There is no dispute with the above proposition of law laid by their Lordships. However, as noticed earlier, in the Courts below, there was no dispute between the parties that an ejectment order in respect of the suit land had been passed by the Assistant Collector on 31st December, 1958 against Hira, Harmukh and Birbal. Under Order 41 Rule 27(1)(b) of the Civil Procedure Code, if a sufficient cause exists, the appellate Court can permit the production of additional evidence. I think such a cause exists in the present case for doing justice between the parties. The necessity of production of this evidence has arisen in the circumstances already narrated. In K. Venkataramiah v. A. Seethatama Reddy & others, AIR 1963 S.C. 1526 it was remarked :

"Apart from this, it is well to remember that the appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause." There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under Rule 27(1)(b) of the Code".

I think that the production of the ejectment order is necessary, in the interest of justice, to determine if the ejectment order had been passed against the present vendees in respect of the suit land and what are its terms. Additional evidence can be allowed even when there is some lacuna, i.e. obscurity in the evidence. Reference can be made to The Municipal Corporation of Greater Bombay v. Lala Pancham & others, AIR 1965 S.C. 1008 wherein it was remarked :

"No doubt, under R.27 the High Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the Court is empowered to admit additional evidence."

Hence, in view of the circumstances of the present case, I allow the production of the certified copy of the ejectment order at this stage.

It may be mentioned here that the learned counsel for the respondents did not state before this Court that in case this copy of the ejectment order was allowed, then the respondents should be given a chance to rebut it. It was also not disputed that the ejectment order relates to the suit land.

The operative portion of the order of Assistant Collector dated 31st December, 1958 reads as follows :

"In view of the above facts order that Birbal be ejected from 1 standard acre and 5<$E1/4> units of land out of the suit land. The portion measuring 1 standard acre and 5<$E1/4> units out of the suit land will be ejected by himself and ejectment will take place between 1st May and 15th June, 1959. The other respondents will be ejected from their respective portions of the suit land as and when they are accommodated on some surplus area by the Collector."

The learned counsel for the appellants argued that though the ejectment qua Hira and Harmukh was a conditional one and they were not to be ejected from the land under their tenancy till alternative land was provided to them, but, in spite of that condition, it would terminate their tenancy. In support of his contention, he has cited Rikhi Ram & another v. Ram Kumar & others, AIR 1975 S.C. 1868. In that case also, a conditional order of ejectment had been passed on 22nd May, 1967 against the tenants. Before the ejectment order had been passed, the landlord, had sold the land. The tenants filed a suit to preempt the sale. The trial Court decreed the suit on 20th June, 1967, i.e. after the ejectment order had been passed against the tenants in respect of the land. The vendees filed appeal in the first appellate Court, but they failed. They came to this Court in second appeal. After referring to the decision of the Supreme Court, reported as Bhagwan Das v. Chet Ram, AIR 1971 S.C. 369, this court remarked:

"The only question advanced by Mr. Jain, learned counsel for the respondent is that the preemptor remained in possession of the land, but that is hardly material. In order to succeed in the preemption suit the respondent had to be a tenant. This relationship was put to an end by the ejectment decree. Therefore, he was not possessed with the essential qualification. In this view of the matter the decision of the Supreme Court fully applies and I cannot accept the contention of Mr. Jain that it is distinguishable because his client remained in possession of the property in dispute in spite of the ejectment decree."

The appeal was accepted and the plaintiff''s suit was dismissed. The tenants then filed an appeal in the Supreme Court by special leave. Their Lordships of the Supreme Court dismissed that appeal and it was remarked :

"The third point urged on behalf of the appellants is also not fit to succeed. A copy of the order of eviction passed by the Assistant Collector was incorporated in the supplementary paper book and placed before us. The order shows that eviction was allowed from the entire land. The appellants were directed to be ejected forthwith from a portion and their actual eviction from the rest of the land was deferred till the allotment of the surplus land. We are, therefore, of the view that the appellants did not continue to be tenants of any portion of the land sold to respondents 1 and 2 on the date the decree for preemption was passed in their favour. Hence the decree was not sustainable in respect of any portion of the land."

The above observations of their Lordships of the Supreme Court clearly support the arguments of the learned counsel for the appellants that Hira and Harmukh ceased to be tenants after the ejectment order, though conditional was passed against them.

The learned counsel for the respondents advanced lengthy arguments based upon section 9A of the Act, Rule 20C of the Punjab Security of Land Tenures Rules, 1956 and section 39 to 48 of the Punjab Tenancy Act, 1887 and argued that till a tenant is physically ejected pursuant to an ejectment order, he does not cease to be a tenant under the landlord. I need not discuss these arguments in detail as in Rikhi Ram''s case (supra) their Lordships of the Supreme Court remarked:

"The reason suggested for making a distinction appears to be attractive but was not forceful enough to persuade us to take the view that the decision of this Court in Bhagwan Das''s case (AIR 1971 S.C. 369), requires reconsideration. The landlord could not determine the tenancy by his unilateral action under the Land Tenures Act. An order of eviction was necessary to be obtained under Section 9. The relationship of the landlord and the tenant ceases to exist between the parties after the passing of an order of ejectment against the tenant. Dispossession in execution of the order is not necessary for determination of the tenancy."

Hence, physical ejectment of a tenant against whom an order of ejectment has been passed is not necessary to determine the tenancy.

The learned counsel for the respondents also argued that the observations made by their Lordships in Rikhi Ram''s case (supra) should not be taken as a precedent for deciding the status of the vendees in the present case. According to him, the observations made in some case without taking relevant provisions of a statute under consideration, have not to be applied in another case. In support of this argument, he has placed reliance upon M/s Raval & Co. v. K.G. Ramachandran & others, AIR 1974 S.C. 818 : 1974 R.C.R.(Rent) 170 wherein it was remarked :

" We are not called upon in this case to consider whether those two cases were correctly decided. But we must point out that the general observations therein should be confined to the facts of those cases. Any general observation cannot apply in interpreting the provisions of an Act unless this Court has applied its mind to and analysed the provisions of that particular Act. We may also point out that in both those cases the contract of tenancy was not subsisting. In a sense, therefore, the observations therein were not really necessary for deciding those cases."

However, the above observations are not applicable to the facts of the present case. In Rikhi Ram''s case (supra), the ejectment order passed by the Revenue Court under section 9 of the Act had come up for interpretation. In the present case also, the ejectment order was passed against the vendees under that section. Therefore, it is futile to urge that their Lordships of the Supreme Court did not interpret the ejectment order in the light of the relevant provisions of law applicable to the case. Under Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all the Courts within the territory of India. I may quote here Ballabhdas Mathuradas Lakhani and others v. Municipal Committee, AIR 1970 S.C. 1002 wherein it was remarked:

"The first question is concluded by the judgment of this Court in Bharat Kala Bhandar''s case, (1965) 3 S.C.R. 499. That case arose under the C.P.& Berar Municipalities Act, 1922. The right of a Municipality governed by that Act to levy under section 66(1)(b) a tax on bales of cotton ginned at the prescribed rate was challenged by a taxpayer. This Court held that levy of tax on cotton ginned by the taxpayer in excess of the amount prescribed by Article 276 of the Constitution was invalid, and since the Municipality had no authority to levy the tax in excess of the rate permitted by the Constitution, the assessment proceedings levying tax in excess of the permissible limit were invalid, and a suit for refund of tax in excess of the amount permitted by Article 276 was maintainable. The decision was binding on the High Court and the High Court could not ignore it because they thought that "relevant provisions were not brought to the notice of the Court."

Reference may also be made to Jaswantsighjiju Deo v. The Union of India & others, AIR 1970 Delhi 190, wherein it was remarked :

"Even apart from this consideration, it is not permissible for the appellant to again attack the constitutionality of Section 87B before this Court, the same having been upheld, as valid law, by the Supreme Court. According to Article 141 of the Constitution, the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The validity of Section 87B having been upheld by the Supreme Court it is a valid piece of law which is binding on all the Courts in the country."

Hence, the learned counsel cannot urge before this Court that the interpretation put by their Lordships in Rikhi Ram''s case (supra) upon a conditional order of ejectment passed under section 9 of the Act should be ignored, as some other provisions of the Act or of the Punjab Tenancy Act were not brought to the notice of their Lordships at the time of decision of that case.

Lastly the learned counsel for the respondents argued that the ejectment order which had been obtained by Haria shall be deemed to have been abandoned as no execution proceedings were taken out pursuant to it and on the other hand, the land had been sold to the persons against whom the ejectment order had been passed. This argument has also no force. It has nowhere been pleaded by the vendees that the ejectment order was ever waived. On the other hand, their plea was that the land had been sold to them in recognition of their tenancy rights. It has already been discussed above that the vendees had ceased to be tenants at the time they had purchased the tenancy rights. In fact, their tenancy rights were in dispute even when they had filed the suit for preemption against the sale by Haria in favour of the present vendors. Therefore, the question of abandonment of the ejectment order does not arise.

For the foregoing reasons, I accept the present appeal and set aside the judgment and decree of the learned lower appellate Court to the extent by which the decree of the learned trial Court was confirmed qua 2/3rd share of Hira and Harmukh. Accordingly, I grant a decree for possession by preemption in favour of the plaintiffs against the defendants in respect of the remaining 2/3rd share also; on payment of Rs. 12,660/70 paise to which amount only Hira and Harmukh will be entitled. If the plaintiffs have not already deposited that amount pursuant to the judgment dated September 25, 1984 by which this appeal was earlier allowed ex parte they should deposit this amount on or before 20th August, 1985, failing which the suit with respect of that share, shall stand dismissed.

In view of the above findings, the crossobjections filed by the defendants automatically fail and these are accordingly dismissed.

In view of the circumstances of this case, the parties are left to bear their own costs in the appeal, as well as the crossobjections.

Crossobjections dismissed.