Soma Devi (deceased) through LRs vs Sudershan Singh & Ors.

1(a) Whether Chhaju Ram was a tenant of the land in dispute and after enforcement of the H.P. Tenancy and Land Reforms Act, Chhaju Ram became full owner in possession of the land in dispute? OPP 1(b) Whether father of the plaintiffs, namely Sant Ram, succeeded Chhaju Ram on his death and became owner of the land in dispute on the death of Chhaju Ram? OPP

2.

Whether the suit is not maintainable? OPD

3.

Whether this Court has got no jurisdiction to try the present suit? OPD.

4.

Whether the plaintiff has got no locus standi to file the present suit? OPD

5.

Relief.

1.

Whether the two Courts below were justified in raising a presumption against the defendant on the ground that she has not herself entered into the witness box?

2.

Whether the two Courts below were justified in not relying upon the statement made by the predecessor in interest of the plaintiffs given before the Tehsildar, while returning the findings in favour of the plaintiffs?

3.

Whether the suit of the plaintiff/respondent was barred by limitation?

4.

Whether the learned First Appellate Court has erred in omitting to consider and discuss the documents Dx, Dy and Dz, freshly tendered in evidence by way of additional evidence under Order 41, r.27 CPC, thereby vitiating the impugned judgment and decree?

Substantial Question of Law No.1:

"5.

Learned counsel for the respondent has placed reliance on Iswar Bhai C. Patel v. Harihar Behera [(1999) 3 SCC 457] wherein this Court has emphasised that withholding of the plaintiff himself from the witness box and thereby denying the defendant an opportunity for cross-examination of himself results in an adverse inference being drawn against the plaintiff. That proposition of law is undoubted. However, as we have already said, that is a fact to be kept in view and taken into consideration by the appellate court while appreciating other oral and documentary evidence available on record. Maybe, that from other evidence — oral and documentary — produced by the plaintiff, or otherwise brought on record, the plaintiff has been able to discharge the onus which lay on him, and, subject to the court forming that opinion, a mere abstention of the plaintiff himself from the witness box may pale into insignificance."

“It is also not necessary in law that always the party to the proceedings should examine himself. The requirement of law insists only that the party who puts forth his case should prove the material facts set up. A party without examining himself can as well establish his case, if possible, by examining the witnesses who are competent to testify. However, in cases where there is an onus placed on the party to discharge and if the facts required to be deposed are necessarily to be testified by the party in person, in such a situation, such a party runs the risk of facing adverse inference for non-examination. Otherwise, it is also open for the party to give evidence through the power of attorney, and such evidence would be valid substituted evidence of the plaintiff. Ultimately, appreciation of the probative value of the evidence and competence of the person testifying is a matter that is to be tested in the course of the cross-examination.”

“13.

Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view, the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in the exercise of the power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross-examined.”

18.

We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:

(a)

An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction, can only give formal evidence about the validity of the power of attorney and the filing of the suit.

(b)

If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.

(c)

The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which the principal alone has personal knowledge.

(d)

Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in the case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders.

(e)

Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.

(f)

Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.

(g)

Where the law requires or contemplates the plaintiff or other party to a proceeding to establish or prove something with reference to his “state of mind” or “conduct”, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his “bona fide” need and a purchaser seeking specific performance who has to show his “readiness and willingness” fall under this category. There is, however, a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or “readiness and willingness”. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.

Substantial Question of Law No.2:

16.

To conclude, both on principle and precedent, as also on the language of Section 35-B, the answer to the question posed at the very outset is rendered in the negative. It is held that the party defaulting in the payment of costs on the date fixed for the payment thereof (on which date this issue is not at all raised) cannot on subsequent date or dates be barred afresh from further prosecuting the suit or the defence, as the case may be.

"6.

Having heard the learned counsel for the parties, I am of the considered opinion that the view taken by the Civil Judge does not suffer from any illegality warranting interference of this Court under Section 115 of the Code. The judgment in the case of Prem Sagar (supra) is absolutely clear in as much as it is observed that if the issue of non-payment of costs is not raised, the same cannot be resuscitated. Moreover, the subsequent view taken by this Court in Slier Singh v. Mehma, 1993 (2) RCR (Civil) 558 (P&H): 1993 (1) PLR 751 is that the objection of Section 35-B of the Code is to secure efficacious prosecution of the suit and not to penalise the party against whom the costs have been awarded. Therefore, the principle of waiver would apply to this case. A similar view has been taken by this Court in the case of Pushpa v. Kundan Lal, 1994 (2) RCR (Civil) 134 (P&H): 1994 (1) PLR 717."

"13.

After considering all the aforesaid Authorities, with due respect to the Punjab and Haryana High Court, I am not inclined to accept the view taken by that Court. The Rules of Procedure are meant to be the handmaiden of justice to further the cause of justice. The party in a given case may have a very valid ground to explain why it could not pay the costs on the next date. The Court must always have a discretion to examine whether the reasons put forth by the party are valid or not. Section 148 CPC empowers a Court to extend time in any matter. This power would be set at nought if it is held that the provisions of Section 35-B CPC are mandatory and that the Court would have no option but to stop the further prosecution of the suit by the plaintiff or strike off the defence of the defendants in case of non-payment of costs. I am in agreement with the reasoning given by the Orissa, Patna, Gauhati and Rajasthan High Courts and consequently I hold that the provisions of Section 35-B CPC are not mandatory but are only directory. The Court may, in the absence of the concerned party, or in the absence of any plausible explanation for non-payment of costs, pass an order stopping the further prosecution of the case by the defaulting party. However, the Court, in some circumstances, may not pass such an order.

“This is a hopeless appeal. A certain Hote Khan is alleged by the appellant, who is in possession of certain lands which belonged to Hote Khan, to have given these lands to him. That story is not accepted, and there are concurrent findings as to the fact by both Courts. After Hote Khan's death, there was a transference of the lands in question by mutation of names effected upon the application of Hote Khan's widow. The Judicial Commissioners think it very probable that Hote Khan's widow, being an ignorant person and with no one to help her, transferred the lands in that way in order that her spiritual adviser might hold them as trustees. The spiritual adviser, who is the appellant wishes to keep them first upon the ground already specified which their Lordships have already disposed of and, secondly upon the ground that it was a gift made by the widow herself but that claim was never made in the defence presented and the learned Judicial Commissioners therefore, very truly find that no amount of evidence can be looked into upon a plea which was never put forward. The result is that their Lordships will humbly advise His Majesty that the appeal should be dismissed. As the respondents have not appeared, there will be no order as to costs.” (Emphasis supplied)

6.

There can be no doubt that under the law of pleadings facts mentioned in sub-clause (iii) are to be pleaded in the petition and thereafter proved at the trial for the purpose of an order of eviction against the tenant. In a decision of this Court in Hasmat Rai v. Raghunath Prasad [(1981) 3 SCC 103, 109: AIR 1981 SC 1711 : (1981) 3 SCR 605] it has been observed by Desai, J. that in order to obtain an order of eviction of a tenant under Section 12(1)(f) of Madhya Pradesh Accommodation Control Act, 1961, the landlord has to plead and establish (i) that he bona fide requires the accommodation let to the tenant for non-residential purposes for the purpose of continuing or starting his business; and (ii) that he has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or the town concerned. Further, it has been observed that any amount of proof offered without appropriate pleading is generally of no relevance. We respectfully agree with the above statement of law and reiterate the same. We are, however, not inclined to interfere with the impugned order of eviction in the instant case for the reasons stated hereinafter.” (Emphasis supplied)

13.

By and large, which part of the evidence is to be discarded as being outside the pleadings is something that the court considers when it discusses the evidence. There cannot also be any doubt that no amount of evidence can be looked into on a plea never put forward. (See Siddik Mohd. Shah v. Saran [AIR 1930 PC 57 (1)].) Therefore, at this stage, if the operation of those two orders is not stayed, it would mean that the examination of the witnesses will cover only that portion of the plea admitted to be put forward by Defendants 11 to 13 or in the plaint, and that would cause inconvenience to the trial which has been directed to be expedited by this Court. Merely because some more or not strictly necessary questions are also asked either in cross-examination or in chief examination, that cannot also prejudice the contesting defendants since they can always plead either that a part of the evidence has to be discarded as not being covered by the pleadings in the case, or that it is irrelevant.”

17.

It is a settled law that no amount of evidence beyond pleadings can be looked into. It is further the well-settled principle of law that the evidence adduced beyond the pleading would not be admissible nor can any evidence be permitted to be adduced which is at variance with the pleadings. The Court at the later stage of the trial, as also the Appellate Court, having regard to the rule of pleading would be entitled to reject the evidence wherefore there does not exist any pleading."

31.

Mr Verma, while placing reliance upon Deepak Prakash v. Sunil Kumar, (2014) 2 Shim LC 822 and C. Mackertich v. Stuart & Co. Ltd., (1971) 3 SCC 39: AIR 1970 SC 839, contended that no amount of evidence beyond Pleading can be looked into. There cannot be any quarrel with regard to the aforesaid proposition of law as laid down in the case referred to above. It is well settled that evidence adduced beyond the Pleadings would not be admissible, nor can any evidence be permitted to be adduced which is at variance with the Pleadings. However, the contention having been made by Mr Verma cannot be accepted since no Plea with regard to nonregistration of agreement, on the basis of which Plaintiff came into possession over the land, was raised in written statement having been filed by appellant-defendant, they cannot be allowed to raise this Plea in the instant appeal because of the fact that submission with regard to non-registration of agreement relied upon by the Plaintiff to claim ownership and possession of the suit land is purely legal submission and can be raised/made at any stage of the case.” (Emphasis supplied)

“8.

In our opinion, before undertaking the exercise of considering whether a party is entitled to lead additional evidence under Order XLI Rule 27(1) of the Code, it would be first necessary to examine the pleadings of such party to gather if the case sought to be set up is pleaded so as to support the additional evidence that is proposed to be brought on record. In the absence of necessary pleadings in that regard, permitting a party to lead additional evidence would result in an unnecessary exercise and such evidence, if led, would be of no consequence, as it may not be permissible to take such evidence into consideration. Useful reference in this regard can be made to the decisions in Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491: AIR 2009 SC 1103 and Union of India v. Ibrahim Uddin, (2012) 8 SCC 148. Thus, besides the requirements prescribed by Order XLI Rule 27(1) of the Code being fulfilled, it would also be necessary for the Appellate Court to consider the pleadings of the party seeking to lead such additional evidence. It is only thereafter, on being satisfied that a case as contemplated by the provisions of Order XLI Rule 27(1) of the Code has been made out, that such permission can be granted. In the absence of such exercise being undertaken by the High Court in the present case, we are of the view that it committed an error in allowing the application moved by the defendant for leading additional evidence.”

Substantial Question of Law No.3:

7.

In Besru vs. Shibu, 1999(1) Shim.L.C. 343, this Court has held: -

"10.

Admittedly, in the present case, no attempt was made by the Assistant Collector 2nd Grade to serve the plaintiff in accordance with the law. As such, the mutation is void ab initio, being violative of the principles of natural justice. It can be held, so far, as another reason why it was not passed by the competent authority. From Rule 29 of the Rules, it is clear that only an Assistant Collector of the Ist Grade was the competent Land Reforms Officer to hold an inquiry under Section 104 of the Act. It is further fortified by the Notifications dated 27th/29th September, 1995, whereby all the Tehsildars in Himachal Pradesh were conferred with powers of Assistant Collector of Ist Grade for purposes of Chapter X of the Act under which Section 104, pertaining to acquisition of proprietary rights by the tenants, fails. By another Notification of the same date, Tehsildars conferred with the powers of Assistant Collector, Ist Grade, were appointed Land Reforms Officers for carrying out the purposes of Chapter X of the Act within their respective jurisdiction with immediate effect. So far as the present case is concerned, from the perusal of the mutation, it is clear that it was attested by the Assistant Collector 2nd Grade, who had no jurisdiction to do so. Had the plaintiff been served in accordance with law and the competent authority held proper inquiry, the mutation conferring proprietary rights on the defendants would not have been passed in view of the Bar under sub-section (8)(a) of Section 104 of the Act."

8.

By Notification No.1-8/68-Rev.1 issued by the competent Authority under Section 86 of the Act, it is only the Assistant Collector, Ist Grade, who is empowered to take up proceedings of conferment of proprietary rights. Notification reads: -

"No.1-8/68-Rev.1- In exercise of the powers vested in him under sub-section (1) of section 86 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Act No.8 of 1974) and all other powers enabling him in this behalf, the Governor, Himachal Pradesh, is pleased to confer on all the Tehsildars in Himachal Pradesh, all the powers exercisable by an Assistant Collector of First Grade, for the purposes of Chapter IX of the aforesaid Act, within their respective jurisdiction, with immediate effect."

It is undisputed that the provision of conferment of proprietary rights by tenants is contained in Chapter IX of the Act as aforesaid.

These proceedings are, therefore, void ab initio, having been conducted by an officer who is not empowered to exercise the power to grant proprietary rights or to perform any other ancillary act. The very basis set up by the defendants for claiming ownership is, therefore, without any basis. This question would have concluded the entire controversy; however, since the appeal has been admitted on other questions, I am taking them up for consideration.

“8.

Now, when the plaintiff-respondent was in possession of the suit land and there were entries in revenue papers, continuing since 1967-68, Ex.P-3, showing the plaintiff in possession of the suit land, on payment of rent in kind, Assistant Collector 2nd Grade ought not to have entertained the application for correction of entries, in view of the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, which provides that on and with effect from the appointed day, i.e. 3.10.1975, a person recorded as non-occupancy tenant, would become owner, unless land owner exercises right to resume the tenanted land, and sub section (4) of Section 104 of the aforesaid Act says that if any dispute arises as to whether a person is a tenant under a land owner or not, the onus of proof shall be on the land owner to prove that the person recorded as tenant, is not a tenant. Assistant Collector 2nd Grade ought not to have passed the impugned order, as he had no jurisdiction in the matter. Jurisdiction of even Civil Courts is barred to entertain or determine this kind of dispute, by virtue of Section 112 of the H.P. Tenancy and Land Reforms Act, 1972. Such a question, as per rule 29 of the H.P. Tenancy and Land Reforms Rules, 1975, is required to be determined only by the Land Reforms Officer, exercising powers of Assistant Collector 1st Grade.”

20.

In the case of Besru v. Shibu, reported in 1999 (1) Shim. L.C. 343, this Court has held that it was evident from Rule 29 of the H.P. Tenancy and Land Reforms Rules, 1975 that only the Assistant Collector (1^st Grade) was a competent Land Reforms Officer to hold an enquiry under Section 104 of the Act. It has been held as follows:

“9.

Rule 28 of the Rules provides that mutation is to be attested in the presence of the parties and Rule 29 provides that a dispute under subsection (4) of Section 104 of the Act shall be decided by the Land Reforms Officer in his capacity as an Assistant Collector 1^st Grade in accordance with the relevant provisions of the Punjab Land Revenue Act or the H.P. Land Revenue Act, as the case may be, though the inquiry held by him would be summary inquiry.

In the H.P. Land Revenue Act, which applies to the present case. Sections 20 to 23 provide for summoning persons for the purpose of any business before a Revenue Officer and the mode of service of summons. Under Section 21 thereof, it is stated that summons issued by a Revenue Officer shall, if practicable, be served personally upon the person to whom it is addressed or, failing him, his recognised agent, or in case it is refused by affixation on the last known address or by sending the same by registered post of proclamation, etc.

10.

Admittedly, in the present case no attempt was made by the Assistant Collector 2^nd Grade to serve the plaintiff in accordance with the law. As such, the mutation is void ab initio being violative of the principles of natural justice. It can be held so for another reason that it was not passed by the competent authority. From Rule 29 of the Rules, it is clear that only the Assistant Collector of the 1^st Grade was the competent Land Reforms Officer to hold an inquiry under Section 104 of the Act. It is further fortified by the Notifications dated 27^th/29^th September 1995 whereby all the Tehsildars in Himachal Pradesh were conferred with powers of Assistant Collector of 1^st Grade for purposes of Chapter X of the Act under which Section 104, pertaining to the acquisition of proprietary rights by the tenants, fails. By another Notification of the same date, Tehsildars conferred with the powers of Assistant Collector 1^st Grade were appointed Land Reforms Officers for carrying out the purposes of Chapter X of the Act within their respective jurisdiction with immediate effect. So far as the present case is concerned, from the perusal of the mutation, it is clear that it was attested by the Assistant Collector 2^nd Grade who had no jurisdiction to do so. Had the plaintiff been served in accordance with law and the competent authority held a proper inquiry, the mutation conferring proprietary rights on the defendants would not have been passed in view of the Bar under sub-section (8)(a) of Section 104 of the Act.”

21.

In the case of Krishan Chand v. Jeet Ram, reported in Latest HLJ 2009 (HP) 978, this Court has held that the proceedings for conferment of proprietary rights conducted by A.C. 2^nd Grade would be void ab initio. This Court has further held that since the very purpose of the tenancy had been challenged, the Civil Court had the jurisdiction to decide the matter. It has been held as follows:

6.

Learned counsel has urged that proprietary rights were conferred on the appellants herein in accordance with law and has emphasised that Ex.DX-1 to DX-3, which are the basis and foundation for claiming ownership under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the ‘Act’).

8.

By Notification No. 1-8/68-Rev.1 issued by the competent Authority under Section 86 of the Act, it is only the Assistant Collector I^st Grade, who is empowered to take up proceedings of conferment of proprietary rights. The notification reads: -

“No. 1-8/68-Rev.1- In exercise of the powers vested in him under sub-section (1) of section 86 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Act No. 8 of 1974) and all other powers enabling him in this behalf, the Governor, Himachal Pradesh, is pleased to confer on all the Tehsildars in Himachal Pradesh, all the powers exercisable by an Assistant Collector of First Grade, for the purposes of Chapter IX of the aforesaid Act, within their respective jurisdiction, with immediate effect.”

It is undisputed that the provision of conferment of proprietary rights by tenants is contained in Chapter IX of the Act as aforesaid.

These proceedings are, therefore, void ab initio, having been conducted by an officer who is not empowered to exercise the power to grant proprietary rights or to perform any other ancillary act. The very basis set up by the defendants for claiming ownership is, therefore, without any basis.

13.

Coming to substantial question of law No. 4, a reading of Section 46 of the H.P. Land Revenue Act shows that if any person considers himself aggrieved as to any right of which he is in possession by an entry in a record-of-rights or in a periodical record, he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1963.

14.

It is well settled that for a suit for declaration, referred to in Section 46, limitation begins to run not from the date of the entry affecting the right of the person concerned, but from the date when he feels aggrieved by the entry and it is the satisfaction of such person as to when he feels aggrieved. Defendant cannot be heard to say that he (the plaintiff) felt aggrieved by the entry at some earlier point of time or when the entry was actually made.

Substantial Question of Law No. 4:

Final Order: