Remanded

Birma Devi v. Suresh

Himachal Pradesh HC6 May 2016RSA/410/2006

Case brief

AI extract

What is this about?

Single Judge of the High Court of Himachal Pradesh allowed the first appeal against the first appellate court, holding that the appellate court erred in deciding the case on an issue of identity of land contrary to pleadings, and remanded the matter for fresh adjudication.

What did the court decide?

Judgment and decree of First Appellate Court dated 14.07.2006 set aside; case remanded to First Appellate Court for fresh adjudication on merit.

Birma Devi Vs Suresh — Property and Title | Himachal Pradesh HC (2016)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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RSA No. 410 of 2006 Reserved on: 29.04.2016 Decided on: 06.05.2016

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Birma Devi and others ….. Appellants Versus Suresh …… Respondent

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Coram :

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The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

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Whether approved for reporting?¹ Yes.

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For the appellants: Mr. Romesh Verma, Advocate. For the respondent: Mr. G.D. Sharma, Advocate.

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Ajay Mohan Goel, J.:

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The present appeal has been filed by the appellants/plaintiffs against judgment and decree passed by learned Additional District Judge, Shimla, Camp at Rohru, dated 14.07.2006 in Civil Appeal No. 33-R/13 of 2005, vide which learned Appellate Court has allowed the appeal filed by the respondent/defendant and set aside the judgment and decree passed in favour of the present appellants by the Court of learned Civil Judge (Junior Division), Court No. 1, Rohru, in Civil Suit No. 4-1 of 2002 dated 31.08.2005.

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1Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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This appeal was admitted on 20.11.2006, on the following Substantial Question of Law:-

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“Whether the view taken by the first appellate court that there is dispute about the identity of the land in respect of which the appellantplaintiff had sought the relief of permanent prohibitory injunction, is contrary to the pleadings and the evidence on record, and taking of such a view has led to miscarriage of justice, as alleged?”

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Facts necessary for appreciation of the

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controversy are that original plaintiff Ram Bahadur (predecessor-in-interest of the present appellants) had filed a suit for permanent prohibitory injunction with respect to land comprised in Khasra No. 618/127 min old and Khasra No. 206 new measuring 0-90-49 Hect., situated in Chak Gangtoli, Tehsill Rohru to the effect that he was owner in possession of the suit land and during the settlement operation, which had been conducted by the Government of Himachal Pradesh in Rohru Tehsil in the year 1980, (which operation was not yet complete) the field staff of the settlement operation had measured the said land illegally and without proper demarcation and reduced the ownership of the plaintiff’s land to the extent of more than 6-0 Bighas without jurisdiction and without intimating the plaintiff about the said reduction of the ownership of his land, which fact had come into his knowledge

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later on and upon gaining knowledge of this fact, he had thereafter applied to the authority concerned to make good the area so reduced. However, nothing has been done in this regard so far. It was further mentioned in the plaint that the defendant in the month of February, 2002 had started interfering in the peaceful and settled possession of plaintiff’s part of the suit land and defendant was further threatening to dispossess the plaintiff from suit land. It was further averred that defendant had no legal right to interfere in the suit land, which belonged to the plaintiff and on the said facts, the suit was filed.

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Defendant filed his Witten statement, in which, inter alia, the maintainability of the same was assailed on the grounds that no cause of action had accrued in favour of the plaintiff against the defendant to file the suit and further, the plaintiff had not approached the Court with clean hands and Court was not having any jurisdiction to try and entertain the present suit as the matter in issue was already pending for correction before the settlement authorities. It was further mentioned in the written statement that the defendant had noting to do with Khasra No. 618/127/1 min old and 206 (new) and that defendant in fact was in settled possession of Khasra No. 238 which had been allotted to him by Raj Kumar and Rajinder Singh in the year 1970 and the proper course for the plaintiff was to get the entire land demarcated

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before filing the suit. According to the defendant, the plaintiff in fact had concocted a false story.

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Thus, it is evident that in fact, it was not the case set forth by the defendant in the written statement that the identity of the land in respect of which the suit had been filed was not clearly established or in other words, there was some ambiguity with regard to the identity of the suit land. The stand of the defendant was very clear and emphatic that he had got nothing to do with the suit land neither was he interfering in the ownership and possession of the suit land and in fact he was owner in possession of land comprised in Khasra No. 238.

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The suit filed by the plaintiff was decreed by the learned lower Court on 31.08.2005 in the following terms:“The suit of the plaintiff is decreed. The decree for permanent prohibitory injunction is passed in favour of the plaintiff and against the defendant. The defendant is accordingly permanently restrained from interfering in the peaceful possession of the plaintiff over the land comprised khasra No. 206, measuring 0-90-49 hect. situated in chak Gangtoli, Teh. Rohru, Distt. Shimla, H.P. The parties to bear tgheir own cost.”

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The learned lower Court while decreeing the suit

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in favour of the plaintiff came to the conclusion that it was admitted case of the parties that the plaintiff was owner in

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possession of the suit land and the defendant himself had admitted that he had got nothing to do with the suit land. Accordingly, as per learned lower Court in these circumstances, the plaintiff’s apprehension that the defendant would dispossess him forcibly, was well founded and a valid ground for granting relief of injunction.

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The said judgment and decree was challenged by the respondent/defendant before the learned Appellate Court. The grounds of appeal filed before the learned Appellate Court will demonstrate that that the judgment was challenged on various grounds.

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These grounds, inter alia, were that the judgment passed by the learned lower Court was a result of misappreciation and misreading of the evidence on far fetched assumptions and presumptions, whereas vital and important evidence of the defendant had been ignored. It was also stated in the grounds of appeal that proper issues were not framed arising out of the pleadings, which had resulted in miscarriage of justice to the defendants. It was also mentioned in the grounds of appeal that the learned trial Court had not appreciated that as per the case set up by the plaintiff in the plaint during settlement operation the ownership of the plaintiff stood reduced to the extent of 6 Bighas and the plaintiff had applied to the authorities for making good the area so reduced and accordingly, as per the respondent/defendant, the suit per

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se was not maintainable since there was adequate efficacious remedy available to the plaintiff under the provisions of H.P. Land Revenue Act and the suit was barred under the provisions of Specific Relief Act. It was further the contention of the respondent/defendant that another aspect of the matter which

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had been ignored by the learned trial Court was that the respondent/defendant had clearly deposed that he had nothing to do with the suit land but under the garb of suit land, the plaintiff wanted to cause interference in Khasra No. 238, which was in the possession of the respondent/defendant.

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Thus, in my considered view, it is apparent from the contents of the written statement as well as the grounds taken in the appeal filed by the present respondent/defendant before the learned First Appellate Court that the issue with regard to the identity of the suit land was never raised by the respondent/defendant. However, the learned Appellate Court vide its judgment dated 14.07.2006 has allowed the appeal and set aside the judgment and decree passed by the learned lower Court by holding that the dispute was about the reduction in area during the settlement operation and the said dispute had to be decided by the settlement authorities and further that identity of the land in respect of the suit land was not clearly established and even the defendant was not causing interference in the possession of the plaintiff over the suit land

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and accordingly, the plaintiff was not entitled to a decree of permanent injunction.

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As mentioned above, the present appeal was admitted on 20.11.2006 on the substantial question of law whether the view taken by the first appellate court that there was dispute about the identity of the land is contrary to the pleadings and evidence on records. In my considered view, the learned Appellate Court has erred in allowing the appeal, inter alia, by holding that the identity of the land with respect to the suit land was not clearly established. The learned Appellate Court has not appreciated that this was not the controversy involved in the case. It was not the case of the defendant that the identity of the suit land was not clearly established. This was neither the defence of the defendant nor any issue was framed on this point by the learned lower Court. Further, this was not a ground of appeal taken by the respondent/ defendant in the first appeal filed by it against the judgment and decree passed by the learned lower Court. Therefore, the findings to this effect arrived at by the learned Appellate Court are beyond pleadings. The learned Appellate Court has gone to adjudicate the appeal on an issue which was neither raised in pleadings nor a point of adjudication before it. 12. The issue involved in the suit was very limited that according to the plaintiff he was owner in possession of the suit land and the defendant was interfering in the possession

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of the same. The learned lower Court decreed the said suit. Feeling aggrieved, the appellant assailed the said judgment and decree before the learned First Appellate Court on the grounds taken in the appeal.

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In my view, the learned First Appellate Court had to adjudicate the appeal on the basis of the ground which were urged before it. The appeal could not have been decided on grounds or issues which were foreign to the pleadings. Therefore, the judgment and decree passed by the learned Appellate Court vide which it had reversed the findings of the learned lower Court, inter alia, on the grounds that the identity of the suit land was not clearly established is not sustainable in law and is liable to be set aside.

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This Court is of the considered view that the view taken by the learned First Appellate Court that there is dispute about the identity of the land was in fact contrary to the pleadings and evidence on record and had led to miscarriage of justice. The substantial question of law is answered accordingly. The judgment and decree dated 14.07.2006 passed by the learned First Appellate Court is accordingly set aside and the case is remanded back to the learned Appellate Court for adjudication afresh on merit on the basis of pleadings on record and the grounds taken by the respondent/defendant in the appeal filed by it before the learned Appellate Court. It is made clear that this Court has

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not made any observations on the merits of the case per se and the learned Appellate Court shall decide the appeal without being influenced by any observations made by this Court in this judgment.

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Parties are directed to appear before the learned Appellate Court on 30^th May, 2016 . No order as to cost. Interim order, if any, also stands vacated.

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(Ajay Mohan Goel), May 06, 2016 Judge (BSS)

Birma Devi v. Suresh

Case brief

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What did the court decide?

Birma Devi v. Suresh

Case brief

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