RSA No. 579 of 2006. Case: Joginder Singh and Ors. Vs State of H.P.. Himachal Pradesh High Court

Case NumberRSA No. 579 of 2006
Party NameJoginder Singh and Ors. Vs State of H.P.
CounselFor Appellant: Sanjeev Kuthiala, Advocate and For Respondents: P.M. Negi, Additional Advocate General and Ramesh Thakur, Deputy Advocate General
JudgesSandeep Sharma, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order XLI Rules 22, 31, 41; Sections 100, 96; Himachal Pradesh Land Revenue Act, 1953 - Section 163
Judgement DateApril 07, 2017
CourtHimachal Pradesh High Court

Judgment:

Sandeep Sharma, J.

  1. Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 31.10.2006, passed by learned District Judge, Solan, District Solan, H.P., in Civil Appeal No. 32-NL/13 of 2006, reversing the judgment and decree dated 17.1.2006, passed by learned Civil Judge (Senior Division), Nalagarh, District Solan, H.P., in civil Suit No. 9/1 of 2002, whereby suit of the plaintiff for declaration with consequential relief of permanent prohibitory injunction came to be decreed.

  2. Having regard to the nature of the order, this Court purposes to pass after examining the record as well as hearing the submissions having been advanced on behalf of the learned counsel for the parties, it may not be necessary to deal with the facts of the case save and except that the respondent/plaintiff (hereinafter referred to as the 'plaintiff) filed a suit for declaration with consequential relief of permanent prohibitory injunction against the defendant/appellant (hereinafter referred to as the defendant), praying therein that the ejectment order Ex. P-9, dated 30.6.2001, passed by the Assistant Collector 1st Grade in case No. 3 of 1999 and order Ex. P-13, dated 31.10.2001, passed by the Collector, Nalagarh in Appeal No. 20-VIII/2001, may be declared wrong, illegal, null and void, inoperative, ineffective and incompetent against the mandatory provisions of law.

  3. By way of aforesaid suit, plaintiff also claimed that he be declared owner in possession of the suit land measuring 0-18 biswas, bearing khasra No. 618/152, situated in the area of village Dadi Kaniyan, Tehsil Nalagarh, District Solan, H.P., as entered in the jamabandi for the year 1996-97. The learned trial Court vide judgment and decree dated 17.1.2006, decreed the suit of the plaintiff and declared him to be owner in possession of the suit land measuring 0-18 biswas bearing khasra No. 618/152. The learned trial Court also declared that the ejectment order dated 30.6.2001 and order of Collector dated 31.10.2001, are wrong, illegal, null and void.

  4. Defendant, being aggrieved and dissatisfied with the passing of aforesaid decree, preferred an appeal under Section 96 CPC before the learned District Judge, Solan, which came to be registered as Civil Appeal No. 32-NL/13 of 2006. Learned District Judge vide judgment and decree dated 31.10.2006, allowed the appeal having been preferred by the defendant and set-aside the judgment and decree dated 17.1.2006, passed by the learned trial Court. In the aforesaid background, appellants/plaintiff approached this Court by way of instant appeal, praying therein for setting-aside the judgment and decree of the learned First Appellate Court and restoring the judgment and decree passed of learned trial Court.

  5. This Court vide order dated 28.5.2007, admitted the instant Regular Second Appeal, on the following substantial questions of law:-

  6. Whether there has been misreading of oral as well as documentary evidence in regard to the fact that plaintiff had become owner under the provisions of H.P. Tenancy and Land Reforms Act?.

  7. Whether without initiating any enquiry under Rule 9 of the H.P. Village Common Lands(Vesting & Utilization) Rules, 1975 and the provisions of Section 3(5) of the Act, 1974, eviction proceedings under Section 163 of the H.P. Land Revenue Act could be initiated and could be said to be valid and whether such orders would affect the rights of the person in possession and whether on such orders, the affected person was entitled to the permanent injunction?.

  8. While hearing the arguments having been advanced by the learned counsel for the parties, this Court had an occasion to peruse the impugned judgment passed by the learned First Appellate Court, perusal whereof, clearly suggests that learned First Appellate Court has not appreciated the evidence in its right perspective and while differing with the findings recorded by the learned trial Court, it has failed to assign its reasons for doing so. Learned First Appellate Court, after recording the brief facts of the case as well as submission having been made by the learned counsel for the parties, failed to examine the pleadings as well as evidence led on record by the respective parties viz-a-viz findings/reasoning recorded by the learned trial Court while allowing the suit having been filed by the plaintiff. Perusal of the evidence, more particularly documentary evidence available on record clearly suggest that the plaintiff in support of his contentions as raised in the plaint, placed reliance on the oral as well as ample documentary evidence, but, it appears that learned First Appellate Court failed to take note of the same and merely on the basis of one document i.e. Ex. P-15 proceeded to hold that entry with respect of possession of the plaintiff in the revenue record has been with respect to two bighas seven biswas of land denoted by khasra Nos. 653/152/5 and 655/152/11.

  9. This Court after carefully examining the material available on record has no hesitation to conclude that learned First Appellate Court while returning the aforesaid findings on the basis of Ex. P-15, has miserably failed to take note of pleadings of the parties, wherein apparently dispute is/was with regard to land allotted to the plaintiff by the Gram Panchayat Kirpalpur vide resolution Ex. P-1, dated 20.9.1970. Since, this Court after being satisfied that learned First Appellate Court has failed to address itself to all issues and decide the same by giving reasons in support of such findings, intends to remand the case back to learned First Appellate Court for deciding afresh and as such, has purposely avoided to make any findings/observations qua the evidence, be it ocular or documentary available on record. Perusal of the judgment passed by the learned trial Court clearly suggests that on the basis of the pleadings of the parties, as many as seven issues were framed and decided the same on the basis of the evidence led on record. But unfortunately...

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