Tarsem Singh vs Arun Kumar Singh & Anr.

The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff''s suit for

declaration and for permanent prohibitory injunction AND in the alternative for possession of the suit khasra number, was, hence dismissed.

Briefly stated the facts of the case are that the plaintiff filed a suit for declaration and permanent injunction with the averments that plaintiff is

exclusive owner in possession of land measuring 0-23-32 hectares, comprised in Khewat No.163, Khatauni NO.264, at present Khasra

No.1349, 1354 and 1356 as entered in the jamabandi for the year 1996-97 situated in Mahal Jindbar, Mahal Ambota, Tehsil Amb, District Una,

H.P. and order dated 14.7.1999 passed by the Settlement Collector is wrong and illegal as well as without jurisdiction having no effect upon the

right, title or interest of the plaintiff qua the suit land. The plaintiff also assailed the mutation No.138 dated 7.9.1999 sanctioned on the basis of the

said order with permanent injunction restraining the defendants from interfering in the suit land in any manner whatsoever and cutting and removing

any valuable trees from the suit land. In the alternative the suit for possession. According to the plaintiff, the defendants are utter strangers having

no right, title or interest over the suit land. The order dated 14.7.1999 described above was passed without affording opportunity to the plaintiff as

such the same is null and void. Now the defendants, on the basis of the aforesaid illegal order, about a month back threatened to take forcible

possession of the suit land and also to cut sheesham tree standing over the suit land, the defendants were requested a number of times not to hurl

such threats but of no use, hence, the suit.

The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections inter alia maintainability,

jurisdiction, esptoppel, plaintiff not approaching the court with clean hands. It has been averred that the suit land comprised in khasra No.1349/1,

measuring 0-00-72 is part of old khasra No.4905 min which is owned and possessed by the defendants. On merits, the defendants denied the

most of the averments made in the plaint. However, it has not been disputed that during consolidation operation khasra No.4895 and 4901 were

carved out in lieu of old Khasra No.5031 min, 5032 min and 7757/5030 to which the defendants have no concern. In fact, the plaintiff during the

course of consolidation, got changed the meterkans of the new khasra number and when defendants came to know about this mischief the

defendants moved an application for correction of the same. The Settlement Collector, Kangra sent application of the defendants for inquiry to

Naib Tehsildar, Amb, who after giving notice to the parties submitted a detailed report. Resultantly, the order dated 14.7.1999 was passed in

favour of the defendants. It is clear from the said order that land measuring 0-00-45 hects comprised in Khasra No.1349/1 is in fact part of old

khasra No.4905. Thus, the plaintiff has no right, title or interest.

The plaintiff filed replication to the written statement of the defendant(s), wherein, he denied the contents of the written statement and re-affirmed

and reasserted the averments, made in the plaint.

On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-

Whether the plaintiff is owner in possession of suit land?OPP.

If issue No.1, is proved in affirmative, whether order dated 14.7.1999 is without jurisdiction, null and void, as alleged?OPP.

If issue No.1 and 2 are proved in affirmative, whether mutation No.138 dated 9.7.1999 passed on order dated 14.7.1999 is wrong and illegal

as alleged?OPP

3A. If Issue No.1 to 3 are proved in affirmative, whether the plaintiff is entitled to the relief of injunction? OPP.

Whether this Court has no jurisdiction?OPD.

Whether suit is not maintainable? OPD.

Whether plaintiff is estopped from filing the suit by his act and conduct? OPD.

Relief.

On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant herein. In

an appeal, preferred therefrom by the plaintiff/appellant herein before the learned First Appellate Court, the latter Court dismissed the appeal and

affirmed the findings recorded by the learned trial Court.

Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings recorded

in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 20.09.2005,

admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the

hereinafter extracted substantial questions of law:-

Whether the calculations given by the learned trial Court, with regard to the area, are in accordance with law or contrary to law, keeping in view

that 58+11 would be 69, and not 59?

Whether the District Judge could have given liberty to the plaintiff to file a fresh suit after the plaintiffs had availed opportunity before the revenue

Courts?

Whether there is any presumption of truth attached to the revenue record specially the jamabandis?

Whether the calculations arrived by the learned District Judge are contrary to the discussion made in the judgment?

Substantial questions of Law No.1 to 4:

In his suit, the plaintiff, sought, a declaratory decree (a) for setting aside the order recorded on 14.7.1999 by the Settlement Collector

concerned, (b) whereby, the defendants, were, along with him hence direced to be recorded as co-sharer(s) vis-a-vis the suit khasra number(s),

(c) also he mounted a challenge upon mutation No.138, recorded in sequel thereto, on 7.9.1999, qua it being also ingrained with an alike invalidity,

(d) arising from the factum of the Revenue Officer concerned, not, adhering to the procedure(s) contemplated by law. The learned trial Court had

aptly concluded that any orders pronounced by the Revenue Officers concerned, AND made in sheer disregard vis-avis principles of natural

justice, being hence nonest, (e) thereupon, the Civil Court holding jurisdiction, to pronounce, upon, the validities of the orders recorded, by the

Revenue Officers concerned, (f) AND had hence proceeded to render affirmative findings, upon, the issue appertaining to its holding jurisdiction,

for, discerning the validity of the orders recorded, on 14.7.1999, by the Revenue Officer concerned. The findings aforestated recorded by the

learned trial Court concerned, were affirmed by the learned Frist Appellate Court.

Even when both the learned Courts below, had concurrently held, of jurisdiction vesting in the Civil Courts, (i) to, on, potent evidence making

surfacing(s), of, the Revenue Officers concerned, while drawing up proceedings, on apposite motions made before him/them, theirs/his hence

omitting, to, adhere to the principles of natural justice, whereupon, hence the orders being construable to be nonest besides void, (ii) thereupon, the

Civil Court concerned also holding jurisdiction to test validities thereof. Corollary thereof is that it was incumbent, upon, the plaintiff, to adduce

vigorous evidence displaying (a) of the Revenue Officer concerned, preceding the recording, of, orders, on therebefore apposite motioning(s), of,

the defendants in the extant Civil Suit, his infracting the principles of audi alteram partem, (b) whereupon, alone it would be construeable, of, hence

the apposite order recorded by the Revenue Officer concerned, being, ingrained with a tinge of voidness also it being nonest. The aforesaid

evidence would obviously be adduceable besides readable, only upon, pleadings in consonance therewith, being embodied in the plaint, (c)

primarily, hence, the plaintiff was enjoined to, in the extant suit also rear with precision besides with categorical clarity, (d) averments, of, the

revenue officer concerned not ensuring effectuation of service, upon, him, before his taking, to draw proceedings, upon, the apposite motions of

the litigant concerned, (e) thereupon, alone it was open, for the plaintiff, to contend that despite no valid service being effectuated upon him, the

launching of proceedings, by the Revenue Officer concerned, being obviously construable to stand embarked, upon, without an opportunity being

afforded to him, to defend his interest(s) in the litigation besides obviously the trite canon, of, audi alteram partem being visibly infracted. However,

the closest reading of the pleadings reared in the extant suit, reveals (f) that the plaintiff has merely constituted therein an averment, of, no

opportunity of hearing, being granted to him by the Revenue Officer concerned,, before, the latter initiating further proceedings, upon, an

application moved before him, by the litigant concerned. The aforesaid pleading is grossly insufficient, to, make any conclusion, of, the Revenue

Officer concerned, not, affording any opportunity to the plaintiff, to, defend his interests in the litigation, (g) whereas, an inference, of, debarrings of

opportunity(ies) to the plaintiff, obviously, enjoins embodiment, of, precise pleadings qua debarrings of opportunity(ies) also remaining unpreceded,

by any valid service being ensured to be effectuated, upon, the plaintiff. However, in the plaint, the plaintiff, has not, apart from, his baldly pleading,

of, the Revenue Officer concerned, not, affording opportunity(ies) of hearing to him, pleaded that preceding therewith, the Revenue Officer

concerned, not, ensuring any valid service being effectuated upon him, conspicuously, preceding his drawing up proceedings, upon, the apposite

motion made before him, by the litigant concerned. It appears that absence of aforesaid pleadings in the plaint, does frustrate the nowat endeavour,

of the plaintiff, to contend before this Court, of, the impugned order being recorded behind his back besides, without, any opportunity of hearing

being afforded to him, by the Revenue Officer concerned. Even if, assumingly, absence of the aforestated trite pleadings in the extant suit, (h) may

not bar the plaintiff, to make espousals, of, his, not, being properly served in the appropriate proceedings, especially when necessity, of, valid or

proper service being effected upon him, would imbue the apposite orders, with an aura of sanctity (i) also would negate inferences of its infringing

the canons of audi alteram partem, (j) also yet any evidence adduced in respect thereto, though, not specifically pleaded, may not detract from the

normal rule, of evidence beyond pleadings being unreadable, conspicuously when the relevant orders, otherwise by adduction of cogent evidence,

make(s), a display of visible infraction(s), occurring, of the mandate of audi alteram partem, (k) hence, theirs being nonest besides void, thereupon

also it was imperative, for, the plaintiff to adduce firm evidence in respect (i) of his being impleaded as a party, in the apposite motions, evidence

whereof was comprised, in the plaintiff placing on record a copy, of the memo of parties, occurring, in the apposite application, (ii) besides he was

enjoined to elicit from the custodian, of the relevant records, the records directly, appertaining to the issuance of summons, upon the plaintiff AND

of the plaintiff being served. However, the plaintiff has omitted to adduce the aforesaid evidence, thereupon, even if assumingly, the rigour of the

rule of evidence, beyond pleadings, qua the aforesaid facet being unreadable, may for reasons aforestated, beget dilution. Nonetheless, absence of

the plaintiff, to adduce the aforesaid evidence in display of his not being impleaded as a litigant in the array of respondent(s) in the apposite

application besides evidence of his being not served, rather begets a conclusion, of, the plaintiff making a surmisal contention, of, the Revenue

Officer, without affording any opportunity to him, his recording the impugned order, hence it acquiring a tinge of voidness.

Even though, the learned First Appellate Court has affirmed the findings recorded by the learned trial Court, upon, all the issues, yet merely on

account of the Revenue Officer higher than, the Revenue Officer(s), who, pronounced the order, impugned in the extant suit, being, seized of an

appeal reared therefrom, by the aggrieved plaintiff, hence, proceeded, to reserve liberty in the plaintiff, to institute a fresh suit. (I) ""Importantly

after the Revenue Officer occurring in the higher echelons, of, the hierarchy(ies) of revenue officers , making a decision, upon, plaintiff''s appeal

constituted therebefore. The aforesaid liberty reserved vis-a-vis the plaintiff, is in apparent contradiction, with, the learned First Appellate Court,

affirming, the findings of the learned trial Court, upon, the issue appertaining, to ,the jurisdiction of the Civil Curt concerned. The mere pendency of

an appeal, before, a Revenue Officer concerned, occurring, in the higher echelons, of, the hierarchy(ies) of Revenue Officers ""than"" the one, who

pronounced, the impugned orders, yet cannot bar, the Civil Courts, from exercising the completest statutory jurisdiction besides the completest

statutory adjudication, upon, the apposite lis nor would bar the Civil Court, to pronounce an effective adjudication thereon, rather the adjudication

meted, upon, the apposite lis, especially with both the learned Courts below concurrently holding, of, Civil Court(s) holding jurisdiction, to try the

lis, would, rather be binding, upon, the Revenue Officer concerned. More so, when the plaintiff had chosen to invoke the remedy, of, his assailing

the impugned orders, by, his instituting the extant suit before the Civil Court concerned. Moreover, the affording of liberty does detract, from the

principle of binding and conclusive effect(s), of, judgement(s) rendered by Civil Court(s) concerned, vis-a-vis the Revenue Officers also it gives

leeway, for, multiplicity of litigations AND tantamounts to the Civil Court concerned, abandoning, their enjoined duties, to clinchingly rest, the lis

presented before them. Consequently, the affording of liberty by the learned First Appellate Court is not amenable to acceptance, as it erodes the

conclusivity, of the concurrent renditions. Moreso, when the ground for impugning the apposite orders, is, grooved in the aforestated purported

tenable averments.

The learned trial Court, had, in paragraph 13, of its verdict, made, a graphic pronouncement (a) of old khasra Nos. 4901, holding, an area of

3-11 kanals AND after its conversion, into new khasra No. 1349, it holding an area of 0-13-63 hectares, (b) old khasra No.4895 carrying an

area of 2-10 kanals AND after its conversion, into new khasra Nos. 1354 and 1356 both respectively, holding an area of 0-09-58 hectares and

0-00-11 hectares, thereupon, it concluded, that, the total areas of the above said khasra numbers, after their conversion, into new khasra numbers

also upon their conversion(s) into commensurate area(s) thereof, hence holding area(s), of, 0-09-59 hectares and not 0-09-69 hectares, as

depicted in the revenue records concerned. Since, the aforesaid portion of the mandate, occurring, in paragraph No.13, of the verdict rendered by

the learned trial Court, has, remained unassailed by the defendant, thereupon, it acquires conclusively. In aftermath, reverence is to be metered

thereto, wherefrom, it is imperative to conclude that in consonance, with, the aforesaid binding and conclusive mandate, occurring, in paragraph

No.13 of the verdict of the learned trial Court, the revenue record is required to be corrected.

The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court being

based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the

learned trial Court have not excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are

answered accordingly.

In view of the above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgements and decrees rendered by both the

learned Courts below are maintained and affirmed ""excepting"" the Revenue Officers concerned meteing apt deference vis-a-vis the aforesaid

mandate occurring in para 13 of the verdict rendered by the learned trial Court. All pending applications also stand disposed of. No order as to

costs.