Dismissed

Ramji Dass v. State

Himachal Pradesh HC4 Sept 2023RSA/97/2009

Case brief

AI extract

What is this about?

In this appeal against a judgment dismissing a civil suit for declaration and injunction regarding land possession, the High Court examined whether lower court findings were perverse and if the suit was barred by res judicata. The Court held that the findings were not perverse and the suit was barred by res judicata, dismissing the appeal.

What did the court decide?

Present appeal fails and is dismissed; record remitted to lower courts.

Ramji Dass Vs State — Property and Title | Himachal Pradesh HC (2023)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶2

RSA No. 97 of 2009 Reserved on: 17.08.2023 Date of Decision: 04^th September,2023

Ramji Dass

....Appellant

Versus

State of H.P. & others.

¶7

....Respondents

¶8

Coram

¶9

Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No.

¶10

For the Appellant : Mr.K.D.Sood, Senior Advocate with Mr. Het Ram Thakur, Advocate

¶11

For the Respondents : Mr.Anup Rattan, Advocate General with Mr. Navlesh Verma, Additional Advocate General, Mr. R.P.Singh and Mr. Prashant Sen, Deputy Advocate General, for Respondent No.1. Mr. Arun Sehgal, Advocate, for Respondents No.2 to 4.

¶12

. Rakesh Kainthla,Judge

¶13

The present appeal is directed against the judgment and decree dated 22.12.2008, passed by learned District Judge Bilaspur, H.P., vide which, the appeal filed by the appellant (the plaintiff before the learned Trial Court)was dismissed. (Parties

¶14

_________________________ 1. Whether reporters of the local papers may be allowed to see the judgment? Yes

¶15

-2-

¶16

shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

¶17

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a Civil Suit before the learned Trial Court for seeking a declaration that there is no path in Khasra No.4/1/2 and Bouri in Khasra No. 4/1/1, situated at Village Nihan, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter to be referred as the suit land), with consequential relief of permanent prohibitory injunction for restraining the defendants from digging the suit land, making the path and Bouri in it. The plaintiff also sought a declaration that the order of the Divisional Commissioner, Mandi, dated 28.12.1974, reducing the area by 1-5 Bighas in the suit land was bad as there was no path or Bouri on the spot and the plaintiff is an owner in possession of the suit land and remaining land comprised in Khasra No. 4/1/3, situated in Village Nihan, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. A consequential relief of permanent prohibitory injunction restraining the defendants from interfering with the possession of the plaintiff was also sought. It was pleaded that the plaintiff is an owner in possession of the suit

¶18

-3-

¶19

land. Learned Sub Divisional Officer (Civil), Ghumarwin, sanctioned a Nautor to the plaintiff of the land measuring 8.11 Bighas bearing Khasra No. 64/59 on 24.09.1983. Defendants No. 2 to 4 filed a revision before the Divisional Commissioner Mandi, who reduced the area by 1-5 bighas of the suit land on the ground that the path and Bouri existed over the land allotted to the plaintiff. Plaintiff filed a suit seeking injunction but the suit was dismissed on 05.03.1987. The matter was taken to this Court and an injunction was issued restraining the defendants from interfering with the remaining land. Divisional Commissioner, Mandi acted upon the wrong report, which was prepared by the Revenue Authorities in league with defendants no. 2 to 4. There is no path in Khasra No.4/1/2 nor any Bouri in Khasra No. 4/1/1; hence, the suit.

¶20

The suit was opposed by the State of Himachal Pradesh by filing a written statement taking preliminary objections regarding lack of maintainability, jurisdiction, valid legal notice and cause of action, the suit being barred by res-judicata and the plaintiff being estopped to file the present suit by his act and conduct. The contents of the plaint were denied on merits.

¶21

-4-

¶22

However, it was admitted that the land measuring 8.11 bighas was sanctioned in favour of the plaintiff. The Divisional Commissioner, Mandi, reduced the area by 1-5 bighas on the objection of village right holders because the land in question was a thoroughfare and a Bouri existed in the allotted land. The plaintiff filed an appeal before the Financial Commissioner, which was dismissed. He filed a writ petition before this Court, which was also dismissed. He filed a Civil Suit before the Sub-Judge, First Class, Ghumarwin, which was dismissed on 05.03.1987. The plaintiff was evicted from the suit land on 10.06.1998. The allotment was rightly reduced by the Divisional Commissioner, Mandi. Hence, it was prayed that the suit be dismissed.

¶23

A separate written statement was filed by the

¶24

remaining defendants, taking preliminary objection regarding the lack of maintainability. The contents of the plaint were denied on merits. It was asserted that the plaintiff had filed a suit on the same ground regarding the same land, which was decided by the Civil Courts. The possession of the land taken from the plaintiff, was given to the villagers. Hence, it was prayed that the suit be dismissed.

¶25

-5-

¶26

Separate replications denying the contents of the

¶27

written statements and affirming those of the plaint were filed.

¶28

6 The learned Trial Court framed the following issues on

¶29

23.11.2004:-

¶30

Whether the plaintiff is entitled for declaration to the effect that there is no path in Khsara No.4/1/2 and bowly in Khasra No.4/1/1 as alleged? OPP

¶31

Whether the order of Divisional Commissioner Mandi, dated 28-12-74 is wrong as alleged? OPP

¶32

Whether the plaintiff is owner in possession of the land comprising in Khasra No.4/1/2, 4/1/1 and 4/1/3 as alleged? OPP

¶33

Whether the plaintiff is entitled for relief of permanent prohibitory injunction as prayed for? OPP

¶34

Whether the suit is not maintainable as alleged? OPD-I

¶35

Whether the suit is barred by the principal of resjudicata? OPD

¶36

Whether this Court has no jurisdiction to try the suit? OPD-I

¶37

Whether the plaintiff estopped from filing the suit as alleged? OPD-I.

¶38

Whether no valid and legal notice was served upon defendant No.1? OPD-I

¶39

Whether the plaintiff has no cause of action? OPD-I

¶40

-6-

¶41

Relief.

¶42

The parties were called upon to produce the evidence and the plaintiff examined himself (PW-1), and Dhian Singh (PW2). The defendants examined Devender Singh (DW-1), Ram Singh (DW-2), Dev Raj (DW-3) and Bishan Singh (DW-4).

¶43

The learned Trial Court held that the plaintiff had filed a previous suit, which was decided against him. He could not have reagitated the plea taken in the previous suit and the present suit is not maintainable. The plaintiff failed to prove that there is no path or Bouri. His witness Dhian Singh admitted that he and villagers used to take water from the suit land. Hence, the learned Trial Court answered issue Nos. 1 to 4 and 7 to 9 in negative, issue Nos. 5 and 6 in affirmative and dismissed the suit filed by the plaintiff.

¶44

Being aggrieved from the judgment passed by the learned Trial Court, the plaintiff filed an appeal before the Learned First Appellate Court and the Learned First Appellate held that the matter was earlier agitated before the revenue authorities and Civil Courts. The grant was reduced by 1-5 bighas by the Divisional Commissioner, Mandi. This reduction and grant were

¶45

-7-

¶46

upheld by this Court. It is not open for the plaintiff to say that the reduction was bad. The plaintiff is bound by the principle of re sjudicata and cannot re-agitate the facts previously agitated by him. Hence, the appeal was dismissed.

¶47

10 Being aggrieved and dissatisfied with the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed. It was asserted that the findings recorded by the learned Courts below are perverse and based on a misreading of oral and documentary evidence. It was duly established on record that the plaintiff was validly granted 8-11 Bighas of land and the area was reduced by 1-5 bighas on the pretext that there was a path and Bouri on the land. The valid grant could not be reduced or curtailed and the rights of the parties could have been protected. The learned Courts below had wrongly held that the suit was barred by the principle of resjudicata and it was not maintainable. The plaintiff is in possession and is entitled to protect his possession. The statements of witnesses were not properly appreciated in their proper perspective. Hence, it was prayed that the present appeal

¶48

-8-

¶49

be allowed,and judgments and decrees passed by the learned Courts below be set aside.

¶50

The appeal was admitted on the following substantial questions of law on 18.03.2009:-

¶51

1 Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence as also pleadings of the parties and drawing wrong inferences from the documents, particularly, Mark-X as also Ext. DW-4/8 and report Ext. DW-1/E, jamabandiExt.DA and the statements of DW-2, Ram Singh and DW-3, Dev Raj, which has vitiated the findings?

¶52

Whether the findings of the court below that the suit was not maintainable and was barred by principles of res-judicata is sustainable in law when on the material on record it was established that neither bouri nor path existed on the land and in any case, are granted could not be curtailed or reduced by 1-5 bighas and at the most the alleged right of passage and “bouri” could have been perverse?

¶53

Whether the order of the Divisional Commissioner, Mandi, dated 28.12.1974 was without jurisdiction and the civil court had the jurisdiction to declare the same void as a valid grant having been made in favour of the appellant could be set aside?

¶54

I have heard Mr.K.D.Sood learned Senior Advocate,

¶55

assisted by Mr. Het Ram Thakur, Advocate, for the appellant/ plaintiff and Mr. Anup Rattan, learned Advocate General assisted

¶56

-9-

¶57

by Mr. Navlesh Verma, learned Additional Advocate General, Mr. R.P.Singh and Mr. Prashant Sen, learned Deputy Advocates General for respondent no.1 and Mr Arun Sehgal, Advocate, for respondents no. 2 to 4.

¶58

Mr. K.D. Sood, learned Senior Advocate, for the appellant/plaintiff submitted that it was duly proved by Mark “X” that no path and Bouri was found over Khasra No. 68/64. Learned Courts below erred in not relying upon this report. The plaintiff was allotted the land. He paid Najrana for the same and was put in possession. He is entitled to protect his possession. Therefore, he prayed that the present appeal be allowed and judgments and decrees passed by the learned Courts below be set aside.

¶59

Mr Anup Rattan, learned Advocate General for respondent no. 1 and Mr. Arun Sehgal, Advocate for respondents No. 2 to 4, respectively submitted that this question has already been adjudicated in the previous litigation and the plaintiff cannot re-agitate the same before this Court. Hence, it was prayed that the present appeal be dismissed.

¶60

-10-

¶61

I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

¶62

Substantial questions of law no.1& 3

¶63

These substantial questions of law are interconnected and are being taken up together for convenience.

¶64

The term perverse was explained by this Court in Sukha Devi v. Paritosh Chauhan, 2018 SCC OnLine HP 1214 = 2019

¶65

(2), Civil Court Cases 83 as under:-

¶66

“10. What is ‘perverse’ was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu v. State Represented by the Public Prosecutor, (2009) 10 SCC 206 wherein it was held as under:—

¶67

“26. In M.S. Narayanagouda v. Girijamma AIR 1977 Kar. 58 , the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814 , the Court defined ‘perverse’ as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.

¶68

27. The expression “perverse” has been defined by various dictionaries in the following manner:

¶69

1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition

¶70

-11-

¶71

PERVERSE: - Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.

¶72

2. Longman Dictionary of Contemporary English-International Edition

¶73

PERVERSE: Deliberately departing from what is normal and reasonable.

¶74

3. The New Oxford Dictionary of English - 1998 Edition

¶75

PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

¶76

4. New Webster's Dictionary of the English Language (Deluxe Encyclopaedic Edition)

¶77

PERVERSE: Purposely deviating from accepted or expected behaviour or opinion; wicked or wayward; stubborn; cross or petulant.

¶78

5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition

¶79

PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.

¶80

28. In Shailendra Pratap v. State of U.P. (2003) 1 SCC 761 , the Court observed thus: (SCC p.766, para 8

¶81

“8…We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable and the order of acquittal cannot be said to be perverse. It is well settled that the appellate court would not be justified in interfering with

¶82

-12-

¶83

the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity.”

¶84

29. In Kuldeep Singh v. The Commissioner of Police (1999) 2 SCC 10 , the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10)

¶85

“9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of “guilt” is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.

¶86

10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.”

¶87

30. The meaning of ‘perverse’ has been examined in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons 1992 Supp (2) SCC 312 , this Court observed as under: (SCC pp. 316-17, para 7)

¶88

-13-

¶89

“7. In the present case, the stage and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in the review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.”

¶90

11. What is ‘perverse’ has further been considered by this Court in RSA No. 436 of 2000, titled ‘Rubi Sood v. Major

¶91

-14-

¶92

(Retd.) Vijay Kumar Sud , decided on 28.05.2015 in the following manner:—

¶93

“25….. A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in a miscarriage of justice, is open to correction, because it is not treated as a finding according to law.

¶94

26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.

¶95

27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.

¶96

28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated.”

¶97

12. What is ‘perversity’ recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal v. Sohan Devi, (2016) 3 SCC 78 wherein it was held as under:—

¶98

“8. “Perversity” has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts

¶99

-15-

¶100

unless the findings are based on evidence or are perverse.

¶101

9. In Krishnan v. Backiam (2007) 12 SCC 190 , it has been held in paragraph11 that: (SCC pp. 192-93)

¶102

“11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in the second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in the second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect.”

¶103

10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530 , at para 10, this principle has been reiterated: (SCC p. 532)

¶104

“10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of the existence of a landlord-tenant relationship between the plaintiff and the defendant and the default committed by the latter in payment of rent.”

¶105

11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been a structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish

¶106

-16-

¶107

otherwise has been found to be totally nonacceptable to the trial court as well as the first appellate court. A material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was a structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.”

¶108

It is apparent from the judgment of this Court that

¶109

findings can be perverse, if they have been arrived at by ignoring the relevant material, by considering the irrelevant and inadmissible material, are based on no evidence or arrived at by misreading the evidence in such a manner as no reasonable person would reach such a conclusion. Therefore, the findings recorded by the learned First Appellate Court are to be adjudged on these parameters.

¶110

The document Mark ‘X’ is a report prepared by Patwari, Patwar Circle, Kothi, pursuant to an application filed by the plaintiff before the learned AC I^st Grade, Ghumarwin, seeking a direction to the Patwari Halqa or Field Kanungo to inspect the

¶111

-17-

¶112

spot and give report whether Bouri or Path is situated on the Nautor land of the plaintiff/appellant. Mark ‘X’, reads that no path or Bouri were found in Khasra No. 68/64. The demarcation was conducted with the help of Jareeb. Bouri was found towards the Eastern and Northern side and the path was found towards the Western side. This report bears the endorsement of Kanungo that the report of the Patwari was detailed and was being forwarded to the Tehsildar. The Patwari, who prepared the report was not examined before the learned Trial Court. It was laid down by the Bombay High Court in Sir Mohammed Yusuf v. D, 1961 SCC OnLine Bom 5= AIR 1968 Bom. 112 that the evidence of contents of the documents are hearsay unless the author is examined. It was observed:

¶113

“20. …… The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at nought the well-recognised rule that hearsay evidence cannot be admitted. This question has been discussed by Halsbury at paragraph 533 at p. 294 ( Halsbury's Law of England, 3rd Edition, Vol. 15 ) under the heading 'Hearsay' Says Halsbury :

¶114

".. .. .. Statements in documents may also be hearsay. So, if A had taken counsel's opinion before acting, the contents of the opinion would

¶115

-18-

¶116

be admissible for the same purpose, but not to prove the truth of any statement of fact therein".

¶117

In paragraph (534) Halsbury has discussed the reasons for the rejection of hearsay evidence and says :

¶118

"The reasons advanced for the rejection of hearsay are numerous, among them being the irresponsibility of the original declarant, the depreciation of truth in the process of repetition, the opportunities for fraud which its admission would offer, and the waste of time involved in listening' to idle rumour. The two principal objections, however, appear to be the lack of an oath administered to the originator of the statement, and the absence of opportunity to cross-examine him."

¶119

The Advocate General drew our attention to a decision of the House of Lords in Maria Sturla v. Filippo Freccia, (1879) 5 A.C. 623 . In that case, the report of a committee appointed by a public department in a foreign state was admitted in evidence as a public document. It was, however, held that it was not admissible as evidence of all the facts stated therein. In that case, the facts were: The document in question, a report of certain persons called the Ginunta di Marina at Genoa, was sought to be put in evidence for the purpose of proving that person who was formerly consul for the Genoese Republic in London, and the succession to whose daughter, Mrs Brown, was in question, was a native of Quarto near Genoa and at the time that report was made, aged about forty-five years. The document was tendered for that purpose and for that purpose only.

¶120

23.It was conceded that the report was an authentic public document, of the Genoese Government. The statements, however, contained in the report were not based on the evidence of any of the relatives of the consul at Genoa. The information contained therein did not appear to have been received from any member of

¶121

-19-

¶122

Mangini's family. One of the well-recognised exceptions under the English Law of Evidence to the reception of hearsay evidence is the evidence relating to pedigree. The only question, which their Lordships of the House of Lords were considering was, whether the contents of the report fell within the purview of the above exception and their Lordships held that it did not, because the statements contained in the report were not based on the evidence given before the dispute started by any of the members of the deceased's family. We are not concerned with that part of the decision of the House of Lords in the present case. The point to be noted is that the statements contained in the report were treated as hearsay and since they did not fall within the wellrecognised exceptions, they were excluded from evidence. To conclude this part of the discussion, we hold, in the first place, that what has been formally proved is the signature of Abreo and not the writing of the body of the document at Ex. 28 and secondly, that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document was Abreo.”

¶123

It was laid down by the Hon’ble Supreme Court in

¶124

J.D. Jain v. State Bank of India, (1982) 1 SCC 143 , that the statement of a witness made to a person, who is not called as a

¶125

witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the

¶126

statement. It was observed:-

¶127

-20-

¶128

“20. The next question is, is the evidence in the domestic enquiry really hearsay, as held by the Tribunal?

¶129

The word 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on the information given by someone else. (See Stephen on Law of Evidence).

¶130

The Privy Council in the case of Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 observed:

¶131

"Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made."

¶132

In Madholal Sindhu v. Asian Assurance Co. Ltd.,

¶133

1945 SCC OnLine Bom 44= AIR 1954 Bom. 305, the documents were proved by examining the persons acquainted with the handwriting of a person to prove the contents of the documents as true. This was held to be

¶134

hearsay and inadmissible. It was observed:

¶135

“As I have already observed it was futile for Mr Somjee to merely prove the signatures or the

¶136

-21-

¶137

handwriting of the persons who signed or wrote the various documents without calling the said persons who were the only persons who could depose to the correctness of the contents of those Various documents. Whether Deshpande, Paranjape or Jamnadas signed or wrote the various documents, was not the only issue before me. If that had been the only issue, the proof of the signatures or the handwriting of Deshpande Paranjape or Jamnadas would have been enough What was in issue, however, before me was apart from Deshpande, Paranjape or Jamnadas having signed or written those documents, whether the contents of those various documents were correct. This certainly could not be proved by Balkrishna Bhagwan Deshmukh who had no personal knowledge whatever about the contents of those various documents. It would have served no purpose whatsoever to admit those documents in evidence with the reservation as suggested by Mr. Taraporewalla. I was supported in this conclusion of mine by the remarks of the appeal Court in - '11 Bom HCR 242 at p. 246 , and I accordingly declined to admit in evidence the said various documents in spite of Balkrishna Bhagwan Deshmukh deposing before me that the said various documents were signed by or were in the handwriting of Deshpande, Paranjape or Jamnadas .” (Emphasis supplied)

¶138

In the present case, the purpose of proving the report

¶139

is to prove the truth of the contents of the report, which is not permissible. Hence, the report could not have been considered by the learned Courts below.

¶140

It was submitted that the report was prepared by a public official in the discharge of his official duties and is perse

¶141

-22-

¶142

admissible under Section 35 of the Indian Evidence Act. This submission cannot be accepted. It was laid down by this Court in Union of India and others Vs. Nand Kishore and others AIR 1966 HP 54 that the words "an entry" in Section 35, Evidence Act are not intended to apply to the opinions of public officers, based on, or inferences drawn from, the allegations made before them in the course of inquiries. It was observed:

¶143

“The learned counsel for the appellants contended that the report of the Settlement Naib Tehsildar was a public document, within the meaning of Section 35. Evidence Act and its certified copy was admissible, without the production of the original or its writer. This contention is not well-founded. The words "an entry" in Section 35, Evidence Act. are not intended to apply to the opinions of public officers, based on, or inferences drawn from, the allegations made before them in the course of inquiries; but are confined only to such statements of facts in issue or relevant facts as are made by the public officers concerned in the course of their official duty and are required to be entered in any book, register or record intended for the purpose, vide Ghanaya v. Mehta, AIR 1934 Lah 890 .

¶144

The report of the Settlement Naib Tehsildar constituted merely his opinion based on allegations, made before him it could not be regarded as an entry in any public or other official record within the meaning of Section 35. Evidence Act Moreover the very wording of the aforesaid section conveys the idea that the entry will be of a permanent nature and excludes all such writing as are merely of an ephemeral character Another idea which runs underneath the section is that the person making the entry should be such as is invested with authority to record a decision

¶145

-23-

¶146

which so far as the matter before him is concerned will be final. It, thus, excludes all views expressed before the final stage is reached and makes only those decisions relevant which constitute the final word in the matter, vide Ghulam Mohammad Khan v. Samundar Khan. AIR 1936 Lah 37 .

¶147

In the instant case, the Settlement Naib Tehsildar was not invested with the authority to record a final decision in the matter of correction of entries in the revenue papers. The final decision was to be taken by the Settlement Officer. The report, submitted by the Settlement Naib Tehsildar, was not accepted by the Settlement Officer. The report did not constitute the final word in the matter and could not be described as an entry in any public or official record, within the meaning of Section 35, Evidence Act. The copy of the record was not admissible in evidence.”

¶148

Therefore, the report is not admissible under Section

¶149

35 of the Indian Evidence Act.

¶150

The report also shows that demarcation was conducted with the help of Jareeb. It was laid down by this Court in Ajudhia

¶151

Lal vs. Smt. Sandhya Devi 2006(2) Shimla Law Cases 108 that Patwari is not competent to give demarcation. It was observed:-

¶152

“9. Learned counsel for the appellant has argued that the first appellate court was not justified in rejecting the Tatima prepared by the Patwari on the spot when the Presiding Officer of the trial Court went to the spot and that the said Tatima proves that a portion of khasra No. 237, shown by min khasra No. 237/1, had been encroached upon after the institution of the suit. Spot inspections are carried out by the court with a view to appreciating the evidence. In the present case, the Presiding Officer of the trial court went to the spot to appreciate the contentions (not the evidence) of the parties with regard to the application for a

¶153

-24-

¶154

temporary injunction, much before the commencement of the trial, and, therefore, the spot inspection note and the Tatima were got prepared from the Patwari on the spot cannot be looked into for the purpose of appreciation of the evidence. In any case, there is nothing on the record that the Patwari, namely PW 2 Sh. Jagan Nath, carried out the demarcation on the spot, as per instructions. In any case, Patwari was not competent to give demarcation. Therefore, the Tatima prepared by the Patwari cannot be used as a piece of evidence for granting the relief of mandatory injunction asked for by the appellant-plaintiff in the amended plaint.”

¶155

Therefore, the report prepared by Patwari regarding

¶156

the demarcation conducted by him could not have been admitted and there is no error in not relying upon the report.

¶157

Dhian Singh (PW-2),admitted in his crossexamination that he fetches the water from Bouri alongwith the other villagers. The learned Trial Court had rightly held on the basis of the statement that the version of the plaintiff that no Bouri existed on the land was not established.

¶158

The judgment passed by this Court in RSA No. 293 of 1990(Ext. DW-4/B) reads that a grant of 8-11 bighas of land was made to the plaintiff, which was reduced by 1-5 bighas and the remaining 7-6 bighas of the land was not disturbed. Since the grant of 7-6 bigahs of land was not disputed, therefore, the declaration regarding this land was superfluous. It was further

¶159

-25-

¶160

held that the plaintiff was entitled to injunction regarding 7-6 bighas of land bearing Khasra no. 4/1.

¶161

It is apparent from this judgment that the plaintiff was not held entitled to any relief regarding the land measuring 1-5 bighas. The plaintiff has agitated reduction of area by 1-5 bighas in the present suit, which was already the subject matter in the previous suit. Since no relief was granted regarding this 1-5 bighas; therefore, the plaintiff could not have filed a Civil Suit for seeking relief regarding 1-5 bighas of land. Thus, the learned Courts below had rightly relied upon this judgment to hold that the plaintiff cannot re-agitate the question of reduction of the area by 1-5 bighas of land.

¶162

The Report Ext.DW-1/B (wrongly referred to as DW-

¶163

1/E in this substantial question of law) shows that the plaintiff was dispossessed from Khasra 67/64 measuring 1-1 bigha and Khasra No. 66/64 measuring 0-4 bighas measuring 1-5 bighas. Both the learned Courts below had rightly held that the plaintiff had no possession and could not have sought the injunction based on this document.

¶164

-26-

¶165

Ram Singh (DW-2) and Dev Raj (DW-3) specifically stated that there is a general path and a Bouri in the land measuring 1-5 bighas, comprised in Khasra No.4/1/1 and Khsara No. 4/1/2. They specifically denied that there was no path or Bouri in the land allotted to the plaintiff. Thus, these witnesses categorically denied the version of the plaintiff and there is no misreading of their evidence by the learned Courts below.

¶166

Hence, it cannot be said the findings recorded by the learned Courts below are perverse or based on the misreading of oral and documentary evidence and the substantial questions of law are answered accordingly.

¶167

Substantial question of law no.2

¶168

33 . The plaintiff had failed to prove that no Bouri and path existed on the suit land. Learned Courts belwo had rightly held that the plaintiff had agitated the question of reduction of the area in the previous litigation and he could not have re-agitated this question before this Court.Hence, the learned Courts below had rightly held that the present suit to be barred by the principle of resjudicata and this substantial question of law is answered accordingly.

¶169

-27-

¶170

Final order :

¶171

In view of the above, the present appeal fails and the

¶172

same is dismissed. The record of the case be remitted back to the

¶173

learned Courts below. Pending miscellaneous applications, if any,

¶174

also stand disposed of.

¶175

(Rakesh Kainthla) Judge

¶176

04^th September,2023

¶177

(ravinder)

¶178

-28-

Ramji Dass v. State

Case brief

What is this about?

What did the court decide?

Ramji Dass v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Dilbhag Singh Vs Hari Ram

Dev Raj Vs Collector Land Acquisition NHAI and Others

Yam Chand Vs Collector Land Acquisition NHAI and Others

Tulsa Devi Since deceased through her Lrs Usha Devi Vs Kamal Kant

Chami Devi Vs Collector Land Acquisition NHAI and Others

Kapil Dev Vs Collector Land Acquisition NHAI and Others