Youdhister vs Siri Ram and others

R.L. Anand, J.

This is a Regular Second Appeal and has been directed against the judgment and decree dated 11.12.1985 passed by the Court of Additional District Judge, Kurukshetra whereby the learned Additional District Judge confirmed the judgment and decree dated 27.8.1983 of the Trial Court by which the suit of the plaintiffs/respondents for possession, as prayed for, was decreed.

The brief facts of the case are that Sarv/Shri Siri Ram and others filed suit for possession of the land measuring 8 Kanals as mentioned in para No. 1 of the plaint, situated in the revenue estate of village Bakhli, Tehsil Guhla, District Kurukshetra, vide Jamabandi for the year 197576 and the case set up by the plaintiffs was that previously the land in suit was Jumla Mushtarka Malkan and was in possession of the proprietors of the said village according to Hasab Rasad Zare Khewat. All the proprietors of the village got the said land partitioned vide mutation No. 1637 and the land mentioned in para No. 1 of the plaint fell to the shares of the plaintiffs and they are in exclusive possession of the land. The defendant has no right, title or interest in the suit land, is in unauthorised possession of the same without the consent of the plaintiffs. The defendant was called upon several times to vacate the possession, but to no effect. Hence the suit.

The suit was contested by the defendants inter alia on the grounds that the plaintiffs are not owners of the suit land and that the decree of the Civil court against the Gram Panchayat passed in the year 1965 by virtue of which the plaintiffs became owners, is null and void and is not binding on the rights of the defendants as he was not a party to that suit. The decree no 1965 i.e. dated 9.2.1965 was collusive, illegal, null and void. Dhanna Singh, on whose statement, the suit was decreed, had no authority to admit the claim of the plaintiffs in the said suit. Gram Panchayat Bakhli was not left with 25% of the total Khewat as was required by law. The defendant further pleaded that plaintiffs have no concern with the suit land as they got the land under a collusive decree. The mutation in their favour was also illegal. There was no partition amongst the Mushtarka Malkan and the land in suit did not fall to the shares of the plaintiffs nor they are in possession. Defendant also took the stand that the suit is barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure and that the defendant is in possession of the suit land since 1954 and in spite of that, he was not made a party in the earlier suit in which decree was passed in the year 1965. Plaintiffs are estopped by their own act and conduct in filing the present suit, that the suit is not maintainable in the present form; that the suit does not state any cause of action; that the plaint is defective and vague and the suit is bad for nonjoinder on necessary parties. Defendants also took the stand that the Pattedar Surat Singh, with whom the suit land was on lease and against whom there was no order of ejectment nor termination of Patta, was not impleaded as a party in the earlier, suit. Plaintiffs have no locus standi to file the present suit as the defendant is a tenant under the owners. Earlier the suit land was on lease with Pattedar Surat Singh and Karam Chand and others. No ejectment order has been passed against them. After the death of the Karam Chand in the year 1975, the defendant became the tenant over the suit land visavis the plaintiffs. With the above pleas, the defendant prayed for the dismissal of the suit.

On the above pleading of the parties, the learned Trial Court framed the following issues:

(1) Whether the plaintiffs are the owners of the suit land ? OPP

(2) Whether the defendant is in unauthorised possession ? OPP

(3) Whether the suit is barred under the provisions of Order 2 Rule 2 C.P.C. ? OPD

(4) Whether the plaintiffs are estopped from filing the present suit ? OPD

(5) Whether the suit is not maintainable ? OPD

(6) Whether the suit is time barred ? OPD

(7) Whether the plaint is defective as alleged and, if so, its effect ? OPD

(8) Whether the defendant is not bound by the decree as alleged ? OPD

(9) Whether the suit is bad for misjoinder and nonjoinder of necessary parties ? OPD

(10) Whether the plaintiffs have no locus standi to the file the suit ? OPD

(11) Relief.

Consequent upon the amendment of the written statement, the following additional issues were also framed on 14.2.1983 by the Trial Court:

(1) Whether the Civil Court has on jurisdiction to try the suit as the defendant is a tenant of the suit land under the owners as alleged in P.O. 5 of the written statement? OPD

(2) Whether the suit is bad for nonjoinder of necessary parties such as Surat Singh etc. as alleged in para 7 of the written statement ? OPD

Parties led oral and documentary evidence in support of their case and on the conclusion of the trial, it was held by the learned Trial Court that the plaintiffs are owners of the suit land and that the possession of the defendant over the land was in the capacity of a trespasser and is unauthorised. All the defences of the defendant were rejected and finally suit of the plaintiffs was decreed.

Aggrieved by the judgment and decree of the Trial Court the defendant/appellant filed the First Appeal in the Court of Additional District Judge, Kurukshetra, who vide the impugned judgment dated 11.12.1985 dismissed the appeal. Defendant was again not satisfied with the decision of the Trial Court as well as the First Appellate Court, hence the present appeal.

I have heard Shri Rajiv Bhalla, Advocate on behalf of the appellant and Shri H.S. Hooda, Advocate on behalf of the respondents and with their assistance have gone through the record of this case.

During the pendency of this appeal, the defendant/appellant filed an application under Order 41 Rule 27 of Code of Civil Procedure, pleading that he may be permitted to place on the record the Pattanama dated 8.2.1954 in order to establish that the possession of the defendant over the suit land was not unauthorised and claimed by plaintiffs. The plea taken in the application under Order 41 Rule 27 of Code of Civil Procedure, is that the defendant did not know Urdu. He consulted the old papers and found a document in Urdu. Since he was not conversaent with Urdu language, he showed the document to his relative who knew Urdu and upon reading, it transpired that a lease deed was executed in favour of the appellant''s predecessors on 8.2.1954 and this document could not be produced before the Trial Court in spite of due diligence. It was also submitted that this document was necessary for the just decision of the case.

By this judgment, I am disposing to both the application as well as the main appeal itself and before I enter into the discussion on merits, first of all I dispose of the application itself and in my opinion, the application is liable to be dismissed. It is well settled that court is not bound under the circumstances mentioned in Rule 27 of the Code of Civil Procedure of Order 41 of the Code to allow additional evidence and parties are not entitled as of right to the admission of such evidence. The matter is entirely in the discretion of the Court and discretion has to be exercised judiciously. This provision cannot be used to fill up the lacunae in the case. Appellant had all through been negligent in putting up his defence by way of filing the material documents even though he was award of the same and the document was available to him. I will presently show in the subsequent portion of this judgment that even if this document is taken on record, it is not likely to improve the case of the appellant who is taking contradictory defences destructive to himself. At one point of time, the case set up by the defendant in the Trial Court was that he is in possession of the suit property as owner on account of adverse possession and later on he took the plea that he could not be evicted from the suit land because he is a Pattedar. Plea of Pattedar has been convincingly rejected both by the Trial Court as well as by the First Appellate Court and it has been held concurrently by both the Courts that the possession over the suit land of the defendant was unauthorised. Be that as it may, no justifiable ground is made to allow the application under Order 41 Rule 27 of the Code of Civil Procedure. Rather, in my opinion, the application has been filed to further delay the proceedings and to deprive the decree holders of the possession of the suit land who are trying to get the same since the year 1980. Resultantly, the application is hereby dismissed.

On merits, the learned counsel for the appellant has assailed the findings of the Trial Court only on issues No. 2 and 3 and the Additional issues framed on 14.2.1983 and I shall confine my discussion on these issues only. Rest of the issues have not been agitated and rightly too because it stands established that by virtue of the decree dated 9.2.1965 passed between Jumla Mashtarka Malkan and the Gram Panchayat, the land in question fell to share of Jumla Mushtarka Malkan and thereafter on partition, it fell to the shares of the plaintiffs. The decrees dated 9.2.1965 was challenged in a suit titled as `Dina Nath v. Jit Singh, and this decree remained operative and was confirmed in R.S.A. No. 157 of 1982 titled `Jit Singh v. Dina Nath'' decided by the High Court on 12.3.1984 and later on was also confirmed by the Hon''ble Supreme Court of India.

Assailing the findings of the Trial Court on issue No. 2 and additional issue No. 1, it was argued that even if it is held that plaintiffs have become owners of the suit land treating the decree dated 9.2.1965 as final, still suit for possession of the plaintiffs is not maintainable as their remedy lies under Section 14 of the Punjab Security of Land Tenures Act under which the defendant/appellant can be evicted alone and that too under certain specified conditions because the defendants has become a statutory tenant after the year 1972 with the expiry of the period of patta. In support of his submission, learned counsel for the appellant has relied upon the Jamabandi Ex. P1 of the year 197576 and Ex. P2 of the year 198081 which show that defendant is in occupation of the suit land as Gair Marusi Pattedar on Battai basis. It was also argued by the learned counsel for the appellant that earlier the Gram Panchayat and thereafter the plaintiffs had been treating the defendant as Pettedar. Reliance was also placed on the oral evidence of the defendant Yudhister as well as the statement of DW1 and DW 9. Finally it was argued on these issues there is a presumption of truth under Section 44 of the Punjab Land Revenue Act to the Jamabandis Ex. P1 and Ex. P2 in which the possession of the defendant has been shown in the capacity of a Pattedar and, therefore, the civil suit of the plaintiffs is not maintainable. They should approach the Revenue Court for getting possession under Section 14 of the Punjab Security of Land Tenures Act.

The argument of the learned counsel for the appellant has been considered by me in depth with the help of the record and the oral evidence led by the parties. Irrespective of the fact that there is a concurrent finding by the Trial Court as well as the by the First Appellate Court about the unauthorised possession of the defendant, still I would like to discuss the evidence for the satisfaction of the appellant in order to show that he has no case. To me it appears that defendant had been taking conflicting stands from time to time as it suits to him. There is amended written statement dated 12.10.1982 on the file of the Trial Court field by the defendant in this very suit. In para No. 1 of the Preliminary Objections, it was pleaded by the defendant:

``Even otherwise the defendant has become owner by means of adverse possession as he never recognised the plaintiffs as owners of the suit land nor their possession over the suit lands has been interrupted during the last 26 years. The possession of the defendant over the suit land has throughout been open. Adverse and continuous to the very knowledge of the plaintiffs during all this period.''''

In paras No. 1 and 2, on merits, of the said written statement, it was inter alia pleaded by the defendant;

``Plaintiffs have never been in possession of the suit land whereas defendant has throughout been in possession of the suit land adversely continuously to the vary knowledge of the plaintiffs. They have otherwise become owners by means of adverse possession.''''

Further it has been stated in para No. 2 as follows:

``Even if plaintiffs prove their title to suit land, a fact disputed and denied, then too they have no right to claim the possession as defendant has become owner by means adverse possession as his possession has throughout been adverse, open and hostile to the very knowledge of the plaintiffs for the last 26 years.''''

The above admissions in the written statement are binding upon the defendant and could not be withdrawn. Realising that he could not prove this title to the property by way of adverse possession, the defendant changed the stand and finally adopted the written statement on 31.1.1983, the relevant plea of which have already been summarised above while describing the pleadings of the parties. Of course, in the last written statement the defendant took the stand that he is in possession of the property as Pattedar through his predecessors i.e. earlier his father Karam Chand was the Pattedar who died in the year 1975 and thereafter the defendant became that tenant over the suit land as stated above. This plea of the defendant is now going to be examined in the light of the evidence which has been relied upon and led by the parties.

Ex. P1 is the Jamabandi for the year 197576 and in column No. 5, the name of Surat Singh etc. has been written in the column of cultivation. Name of Yudhishter Rai Son of Karam Chand has also been written as Pattedar. In the column of ownership, the name of Jumla Malkan Hasab Rasad Zare Khewat has been written. The perusal of this document would show that at one point of time, Surat Singh etc. were Pattedar and further it is not established that at any point of name, Yudhishter Rai defendant or his father Karam Chand became the Pattedar of the Jumla Mushtarka Malkan. It is a proved case on the record that the land between Jumla Mushtarka Malkan was partitioned and the land in suit fell to the share of the plaintiffs is as evident from the Jamabandi Ex. P2 and in the column of ownership, the names of the plaintiffs appear. In column No. 6 of Ex. P2 i.e. Jamabandi for the year 198081, the name of Surat Singh again appears. Name of defendant Yudhishter Rai son of Karam Chand has also been mentioned as Pattedar Wasiat Gair Marusi i.e. even from this document, no presumption can be drawn that defendant at any point of time, was treated as a tenant/Pattedar by the plaintiffs. In this context, now we have to read the evidence, which has been led by the parties on record. Evidence so led, has been discussed and dealt by the Tairl Court as well as by the First Appellate Court. Yudhister Rai defendant appeared as DW 10 admitted in the cross examination that he has never paid any rent so far to the plaintiffs regarding the land in dispute as no one approached him to demand the rent. He admits that present plaintiffs are owners of the land in dispute and earlier the Gram Panchayat was the owner. Similar to the effect is the statement of DW9 Sham Sunder who also appeared earlier on 15.1.1983 and deposed that defendant is in possession of the suit land as owner. DW1 Shiv Karan deposed that the disputed land was leased out in the years 1954 upto 1972 only and the patta expired in the year 1972 itself. The document i.e. Jamabandi Ex. P1 and Ex. P2 only show that the defendant is in cultivating possession. Mere the use of ``Pattendar'''' does not create relationship of landlord and tenant between the plaintiffs and defendant in the absence of any evidence regarding the payment of the rent etc. by the defendant to the plaintiffs. It is strange enough that since 1972 the defendant or this father Karam Chand has not tried to pay or tender the rent of the land in dispute to the plaintiffs nor any rent was ever deposited. obviously because the defendant throughout was considering himself to be owner of the land in dispute on account of adverse possession and this plea was given up with the last amended written statement on record, under the garb of tenancy which was never proved on the record. The defendant/appellant cannot be permitted to take the pleas of his own choice with the passage of time. In order to correctly show his tenancy, he is to establish that either he or his father was ever recognised as a tenant by the plaintiffs. No documentary evidence has been brought on the record to show the relationship of lessor or lessee visavis in the land in dispute. Pattanama relied upon by the appellant, if any, lost significance in the year 1972 and thereafter the possession of the defendant/appellant was unauthorised and in the capacity of a trespasser, and in order to evict a trespasser visavis the agricultural land, the owners were competent to approach the Civil Court to take possession.

In the light of above discussion, I repel the first argument of the learned counsel for the appellant and affirm the findings of the Trial Court as well as the First Appellate Court on issue No. 2 and the Additional Issue No. 1 and 2.

It was then submitted by the learned counsel for the appellant that the present suit of the respondents is barred under Order 2 Rule 2 of the Code of Civil Procedure, as in the earlier suit i.e. the suit in which the decree dated 9.2.1965 was passed, the defendant or his father was not impleaded as a party. The argument is again devoid of any merit. Ex. D1 is the certified copy of the earlier plaint and Ex. D5 is the certified copy of the judgment. A combined reading of both the documents would show that the earlier suit No. 34 filed on 17.1.1964, decided on 9.2.1965, was a suit for declaration and injunction and the plaintiffs of that suit were claiming that they are owners in possessions of land in excess of 25% of the total area of the suit land. That suit was decreed. The present plaintiffs could not sue for possession nor the present appellant or his predecessor was a necessary party to that suit. Main controversy in the earlier suit was between Jumla Mushtarka Malkan and the Gram Panchayat. This decree remained valid right upto the Hon''ble Supreme Court of India conferring title upon the plaintiffs and earlier to that upon the proprietors of the Khewat of the village Bakhli.

Resultantly, I also repel the second argument of the learned counsel for the appellant and hold that present suit is not barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure and in this manner, I again affirm the findings of the Trial Court on issue No. 3.

No other point has been urged before me.

In the result, I do not find any merit in the appeal and dismiss the same. Costs made easy.