State Of HP vs Sham Lal & Ors

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 31.8.2007, passed by the learned Additional District Judge, Una, HP, (learned Appellate Court) vide which the judgment and decree dated 28.6.2002, passed by the learned Senior Sub Judge, Una, HP (learned Trial Court) were partly upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience.

Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court seeking a declaration that they are owners-in-possession of the land bearing Khewat No. 382, Khatauni No. 565, Khasra Nos. 200, 201, 205 and 206, measuring 0-42-66 hectares, situated in Village Jhalera, Tehsil and District Una, HP, as recorded in the Misal Haquiat Bandobast Jadeed Sani for the year 1987-88 (hereinafter referred to as the suit land), and the Mutation No.63 sanctioned by the Revenue Officer in favour of defendant No.1 is wrong, illegal and without jurisdiction. A consequential relief of permanent injunction for restraining the defendants from interfering with the suit land was also sought. It was asserted that land measuring 18 Kanal 08 Marla, bearing Khasra No. 596, situated in Village Jhalera, Tehsil and District Una, HP was recorded as Shamlat Taraf of Hukumat Hasab Hisse Jadi in the proprietary column. Shiv Dayal and Ralla were recorded to be in cultivation. Fattu raised a mango garden over the land. His name was recorded in the Bandobast Sani of the year 1863. The other co-sharers objected to the entry, and the Deputy Commissioner of Hoshiarpur, on 29.5.1963, declared Fattu to be the occupancy tenant of the land. An appeal preferred against the order was dismissed on 14.8.1963. The owners applied for partition of their land. The land measuring 18 Kanal 08 marla, was excluded from partition because it was in exclusive possession of Ralla and Shiv Dayal, sons of Fattu. Ralla died issueless, and his estate was inherited by Shiv Dayal. The name of State of Himachal Pradesh was entered in the column of ownership after the commencement of H.P. Village Common Lands (Vesting and Utilization) Act, 1974. However, the plaintiffs continued to be in possession. Bhagat Ram, etc., filed a suit against the plaintiffs in the year 1982 seeking a declaration. The suit was dismissed on 29.1.1987 after holding that the land had not vested in the Panchayat or the State. An appeal was preferred and was dismissed on 28.12.1989. Some observations were made by the learned District Judge regarding the tenancy of the plaintiffs. Mutation No.63 was sanctioned by the Revenue Officers, and the plaintiff's name was deleted from the possessory column based on those observations. The defendants started interference with the possession of the plaintiffs based on the revenue record. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by defendant No. 1 by filing a written statement taking preliminary objections regarding lack of maintainability, jurisdiction and cause of action, and the suit being barred by limitation and the principle of res judicata. The contents of the plaint were denied on the merits. It was asserted that the plaintiffs had not been proved to be in possession of the suit land as per the findings recorded by the learned District Judge, Una, HP. The possession of the plaintiffs came to an end on the sanction of Mutation No. 63 on 12.10.1990. Therefore, it was prayed that the suit be dismissed.

A separate written statement was filed by defendant No.2, taking preliminary objections regarding lack of maintainability and locus standi, the suit being bad for mis-joinder and non-joinder of necessary parties, the suit being barred by limitation, and the plaintiffs being estopped to file the present suit by their act and conduct. The contents of the plaint were denied on the merits. It was asserted that the judgment passed by the learned District Judge has attained finality and cannot be challenged by filing a suit. Defendant No. 2 has been in possession of the suit land since 1958. Hence, it was prayed that the suit be dismissed.

Separate replications denying the contents of the written statement and affirming those of the plaint were filed.

Learned trial Court framed the following issues on 9.9.1997: -

Whether the plaintiffs are owners in possession of the suit land as alleged? OPD.

Whether the plaintiffs are entitled to the relief of an injunction as prayed? OPP.

Whether the suit is not maintainable in the present form? OPD.

Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD.

Whether the suit of the plaintiff is within limitation? OPD.

Whether the plaintiffs are estopped to file this suit by their act and conduct? OPD.

Whether the plaintiffs have no locus standi to file the present suit? OPD.

Whether the suit is barred by the principle of res judicata? OPD.

Relief.

The parties were called upon to produce the evidence, and the plaintiffs examined Mangat Ram (PW1). Defendant No.2 examined himself (DW1).

The learned Trial Court held that, as per the findings recorded by the learned District Judge in the earlier suit, the suit land was in possession of the State of H.P. as the owner. A revision filed against the judgment was dismissed, and this judgment is binding upon the plaintiffs. Plaintiffs did not produce a copy of the order dated 29.5.1963. The revenue entries were changed in favour of the State as per the judgment passed by the learned District Judge. The suit land is Shamlal, which vested in the State of H.P. under the H.P. Village Common Land (Vesting and Utilisation) Act, 1974, and the plaintiffs cannot claim their possession in it. Hence, the learned Trial Court answered Issues No.3 and 7 in the affirmative, rest of the issues in the negative and dismissed the suit filed by the plaintiffs.

Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiffs filed an appeal, which was decided by the learned Additional District Judge, Una, HP (learned Appellate Court). Learned Appellate Court held that the learned District Judge had dismissed the appeal and the suit. The mutation attested by the revenue authorities does not confer any title upon a person. A decree dismissing the suit was no decree, and no effect could be given to it. The plaintiffs could not have challenged the judgment passed by the learned District Judge because the judgment was in their favour, and the findings recorded by the learned District Judge would not constitute res judicata. The plaintiffs, being in possession, were entitled to a decree of injunction. Hence, the learned Appellate Court held the plaintiffs to be in possession as Hissedar, declared Mutation No. 63 as null and void and restrained the defendants from interfering with the possession of the plaintiffs except as per the law.

Being aggrieved by the judgment and decree passed by the learned Appellate Court, the State has filed the present appeal, which was admitted on the following substantial question of law on 20.9.2010.

Whether the First Appellate Court has not appreciated the evidence and law correctly, while returning the findings that property has not vested in the State, and the mutation to that effect is illegal and void?

I have heard Mr Ajit Sharma, learned Deputy Advocate General, for the appellant-State and Mr Anshul Jairath, learned counsel for respondents No.1 to 6, 7(a) to 7(e), 8, 10 to 16.

Mr Ajit Sharma, learned Deputy Advocate General, for the appellant, submitted that the learned Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court. The plaintiffs were not held to be in possession by learned District Judge Una in the earlier proceedings, and this judgment has attained finality. The findings recorded by the learned District Judge would constitute res judicata, and the present suit was not maintainable to get rid of these findings. The Appellate Court failed to appreciate this aspect. Hence, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside.

Mr Anshul Jairath, learned counsel for the respondents, submitted that the learned Appellate Court had rightly held that the plaintiffs were unable to challenge the decree passed by the learned District Judge in the earlier proceedings. Therefore, the present suit cannot be said to be barred by the principle of res judicata. There was no evidence that the plaintiffs were dispossessed as per law, and mere attestation of mutation was not sufficient to hold that the plaintiffs were out of possession. There is no infirmity in the judgment and decree passed by the learned Appellate Court. Hence, he prayed that the present appeal be dismissed.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully. Substantial Question of Law No.1:

Bhagat Ram, Lekh Raj, Som Dutt, Kishori Lal, Vedwanti, Ashok Kumar, Prem Lata, Sharda Devi, Veena Kumari, Jagiri, Banwari, Ram Rakhi, Sagli Ram, Madan Lal and Pyare Lal had instituted a suit against the State of H.P. and Sham Lal, Ram Sarup, Padam Lal, Naresh Kumar, Mukesh, Thakur Dass Punnu, Sarswati Devi, Krishna Devi, Tara Devi, Mangat Ram, Bholi Devi, Taro Devi and Vidyasagar. The suit filed by Bhagat Ram was dismissed by the learned Sub Judge First Class-I, Una, HP. Plaintiffs Bhagat Ram, etc. filed an appeal which was decided by learned District Judge, Una HP, who dismissed the suit of Bhagat Ram etc. after reversing the findings on Issues Nos 2 and 7. It was submitted that these findings would constitute res judicata in the present proceedings. This submission cannot be accepted. It was laid down by the Hon'ble Supreme Court in Ramesh Chandra v. Shiv Charan Dass, 1990 Supp SCC 633: 1990 SCC OnLine SC 537 that one of the tests to determine whether the finding would constitute res judicata is if the party has a right to appeal. It was observed at page 634:

"4. Although long arguments were advanced, in our opinion, the only question that arises for consideration is if the finding recorded in the appeal filed by defendant 1, in which it was held that defendants 2 and 3 were in possession on his behalf, was binding on them in the subsequent suit filed by the plaintiff. In that suit, issue No. 2 was if defendant 2 and defendant 3 were sub-tenants. And issue No. 5 was whether they were liable to be ejected. The trial court, while discussing these two issues held that there was no question of sub-tenancy of these persons, as despite sale there was never a break in their possession. It was further held that they were not sub-tenants nor they claim to be in possession through defendant 1. Therefore, they were not liable to ejectment. Against this finding, the plaintiff did not file any appeal. The finding, therefore, between plaintiff and defendants 2 and 3 became final and binding. The appeal was filed by defendant 1 as he was aggrieved by the decree of arrears of rent. In that appeal, it was observed that the evidence led by defendants 2 and 3 could not be read against him. But the court, while dismissing his appeal and upholding the decree of the trial court, observed that since they were close relations, it appears that even though the rent note was executed by defendant 1, the possession of defendants 2 and 3 was on his behalf. This finding could not be taken advantage of by the plaintiff for more than one reason. This observation was unnecessary as the appeal was dismissed. One could understand if the appeal would have been allowed and the liability for payment of rent would have been fastened on defendants 2 and 3 as they were in possession. But since appeal was dismissed the order of trial court that the liability to pay rent was of defendant 1 stood affirmed. Therefore, it was an observation that was not only off the mark but unnecessary. It could not accordingly operate as res judicata between defendant 1 and defendants 2 and 3, and much less between plaintiff and defendants 2 and 3. One of the tests to ascertain if a finding operates as res judicata is if the party aggrieved could challenge it. Since the dismissal of the appeal or the appellate decree was not against defendants 2 and 3, they could not challenge it by way of appeal. Even assuming that defendant 1 could challenge the finding that the liability of rent was of defendants 2 and 3, as they were in possession, he did not file any written statement in the trial court raising any dispute between himself and defendants 2 and 3. There was thus no occasion for the appellate court to make the observation when there was neither pleading nor evidence. Therefore, from either point of view, the finding could not operate against defendants 2 and 3 as res judicata..."

It was laid down by the Hon'ble Supreme Court in Deva Ram v. Ishwar Chand, (1995) 6 SCC 733, that a person in whose favour a decree has been passed cannot file an appeal against an adverse finding recorded against him. It was observed: -

"25. Let us now consider the plea regarding the effect of an adverse finding recorded by the court against a party in whose favour the suit or the appeal is ultimately decided.

It is provided in Section 96 of the CPC that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear an appeal from the decision of such court. So also, Section 100 provides that an appeal shall lie to the High Court from every decree passed in appeal. Thus, sine qua non in both the provisions is the 'decree', and unless the decree is passed, an appeal would not lie under Section 96, nor would it lie under Section 100 of the Civil Procedure Code.

Similarly, an appeal lies against an 'order' under Section 104 read with Order 43 Rule 1 of the Civil Procedure Code, where the 'orders' against which appeal would lie have been enumerated. Unless there is an 'order' as defined in Section 2(14) and unless that 'order' falls within the list of 'orders' indicated in Order 43, an appeal would not lie.

Thus, an appeal does not lie against mere 'findings' recorded by a court unless the findings amount to a 'decree' or 'order'. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal, and he cannot question those findings before the appellate court. (See Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393: (1974) 3 SCR 882].)"

Therefore, the learned Appellate Court had rightly held that the findings recorded by the learned District Judge in the previous proceedings would not constitute res judicata, and the learned Appellate Court had rightly corrected the error committed by the learned Trial Court.

Plaintiff Mangat Ram stated that his grandfather had raised a mango orchard on the suit land. His statement is duly corroborated by the revenue record. The copy of Missal Hakiyat Bandobast (Ex. P1) shows that old Khasra No. 382, 381/1, corresponding to new Khasra No. 596, measuring 18-8 Kanal, was recorded in possession of Shiv Dayal and Ralla son of Fattu. Copy of Misal Hakiyat for the year 1965-66 (Ex.P4) shows Ram Swaroop and Shyam Lal to be in possession of Khasra No. 1576/596 (old) and 10/33 (new). The copy of Jamabandi for the year 1972-73 shows Ram Swaroop, Shyam Lal, etc., to be in possession of Khasra No. 10/33. Similar entries are repeated in a copy of Jamabandi for the year 1982-83 (Ex.P6). Khasra No. 10/33 has been changed to Khasra No. 200, 201, 205, 206 in Misal Hakiyat Bandobast Jadeed (Ex.P7) and the plaintiffs are recorded to be in possession. These entries carry with them a presumption of correctness, and no person stepped into the witness box to claim that the entries are incorrect. Even the State of H.P. never claimed that the plaintiffs were dispossessed after passing the judgment and decree. The State of HP only stated that the entries were changed after the judgment and decree were passed by the learned District Judge. The Mutation No. 63 also shows that the entries were changed as per the judgment and decree passed by the learned District Judge in Civil Appeal No. 11 of 1987. Thus, the entries were changed merely based on the findings recorded by the learned District Judge and not based on the dispossession of the plaintiffs. Learned Appellate Court had rightly held that the mutation could not have been attested based on the judgment and decree dismissing the suit because the revenue entries can be changed by the judgment and decree binding upon the parties as per Section 38 (b) of the HP Land Revenue Act, 1954. A judgment of dismissal does not bind any party and cannot be used to change the entries. Therefore, the learned Appellate Court was right in holding that the mutation was wrong, which would not bind the plaintiffs.

The plaintiffs were in possession, and the defendants had failed to show any right to interfere with their possession. Even if the land had vested in the State, the State had no right to take possession except as per the law. It was laid down by this Court in State of H.P. Vs. Babu Ram (deceased), through his LRs Ms Nakshatro and another, 1996 (2) Shim. LC 175, where the plaintiff was in possession, he cannot be dispossessed except as per the law. It was observed: -

The two courts below have come to a concurrent finding that the plaintiff is in possession of the land in dispute. This fact is also not disputed by the defendants in view of the fact that proceedings under section 163 of the Himachal Pradesh Land Revenue Act were initiated against the plaintiff. It is settled law that where a person is in settled possession of the land in dispute, even on the assumption that he had no right to remain in possession, he cannot be dispossessed by the owner of the land in dispute except in due course of law.

In the present case, the plaintiffs are in settled possession of the suit land, and they cannot be ejected therefrom save and except in due course of law. The learned Appellate Court had rightly passed the decree for injunction for restraining the defendants from dispossessing the plaintiffs except as per the law.

Therefore, there is no infirmity in the appreciation of the evidence and the law by the learned Appellate Court, and the substantial question of law is answered accordingly.

Final Order:

In view of the above, the present appeal fails, and it is dismissed.

Pending application(s), if any, also stand(s) disposed of.

Records of the learned Courts below be sent down forthwith.