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Banthi Lal and ors. Vs. Kirpal Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 23 of 1968
Judge
Reported in5(1969)DLT257
ActsSuits Valuation Act; Himachal Pradesh (Courts) Orders, 1948
AppellantBanthi Lal and ors.
RespondentKirpal Singh
Advocates: M.M. Nath and; A.C. Sud, Advs
Cases Referred and Raghoba v. Anandabai
Excerpt:
.....because the defendant maintains that he is entitled to the possession of the land as well as of the structure while the plaintiffs claim that they should get the possession of the land which must necessarily result in the removal of the structure by defendant kirpal singh if the plaintiffs succeed. the expression 'question respecting, property of like value' has, in my opinion, a wider import than the words 'claim to' within paragraph 32. in my opinion, the appeal is, thereforee, competent......sagar sons of padam filed a suit in july. 1964 against kirpal singh for possession by ejectment of kirpal singh from land comprised in khasra no. 1100 measuring 5 bids was and situated in village sangla. the plaintiffs alleged that kirpal singh defendant illegally encroached upon the said land with effect from kharif 1962 and constructed a house, a cattle shed and a grain store thereupon. the defense set up by defendant kirpal singh was that the land in suit was given by the father of the plaintiffs to the mtoher of the defendant 40 or 50 years back for the construction of a house and it was she who took possession of the land and construct- ed the structures. the land was, according to the defendant, kirpal singh, given to his mtoher because she was the sister of the father of.....
Judgment:

S.K. Kapur, J.

(1) Banthi Lal and Ram Sagar sons of Padam filed a suit in July. 1964 against Kirpal Singh for possession by ejectment of Kirpal Singh from land comprised in Khasra No. 1100 measuring 5 bids was and situated in village Sangla. The plaintiffs alleged that Kirpal Singh defendant illegally encroached upon the said land with effect from Kharif 1962 and constructed a house, a cattle shed and a grain store thereupon. The defense set up by defendant Kirpal Singh was that the land in suit was given by the father of the plaintiffs to the mtoher of the defendant 40 or 50 years back for the construction of a house and it was she who took possession of the land and construct- ed the structures. The land was, according to the defendant, Kirpal Singh, given to his mtoher because she was the sister of the father of plaintiffs Banthi Lal and Ram Sagar. It appears that Sari Lal was, in the first instance, imp leaded as a pro forma defendant but by ordir dated 6th October, 1964. he was transposed as a plaintiff. On the pleadings of the parties, the following issues were framed :-

'1.Has the defendant Kirpal Singh illegally occupied the land comprising Khata/Khatauni No. 5/15 Khasra No. 1100-Min measur- ing 5 Biswas, situated in village Sangla and constructed house, cat- tle shed and grain store without the consent of the plaintiffs 2. In case issue No. 1 is decided in favor of the plaintiffs, whether Kirpal Singh defendant is liable to ejectment from the land, house, cattle shed and grain store 3. Whether the land in suit was donated by the father of the plaintiffs to the mtoher of the defendants on account of relationship and whether Kirpal Singh defendant is occupying the land in suit as owner for the last 40 or 50 years 4. Whether the defendant is entitled to compensation on acco- unt of the land, house, cattle shed and grain store in case of his eject- ment 5. To what relief are the plaintiffs entitled in this suit ?'

(2) By judgment dated 21st May, 1963, the learned Subordinate Judge, Kalpa, dismissed the suit holding that defendant Kirpal Singh was the absolute owner of the land in dispute and, thereforee, nto liable to ejectment. Aggrieved by the said decision, Banthi Lal and Ram Sagar filed on appeal in the Court of the District Judge, Mahasu. In the said appeal Sari Lal was imp leaded as a respondent. The appeal was dismissed by the learned District Judge on 16th October, 1967. The plaintiffs have now appealed to this Court. The plaintiffs in support of their claim as to the ownership and possession of the land relied on the various revenue papers. Exhibit P. F./P. G. is a document relating to the settlement proceedings. Plaintiff Banthi Lal in his evidence proved this document but it appears that no exhibit mark was put thereon. Ac- cording to this settlement, Padam, father of plaintiffs Banthi Lal and Ram Sagar, was in cultivatory possession of the land in dispute. Again, Exhibit P/D is a Jamabandi for the year 1958-1959 in which plaintiffs Banthi Lal and Ram Sagar ar3 shown as owners in possession Exhibit P/C is Girdawari with respect to the said land for the period 10th June, 1960 to 3rd June, 1963. In this document plaintiffs Banthi Lal and Ram Sagar are shown as owners in cultivatory possession till October, 1962. It is stated therein that after 28th October, 1962, Kirpal Singh son of Nartoam Dass came into possession by reason of relationship. Besides this, the plaintiffs produced oral evidence in support of their case. Banthi Lal plaintiff appeared as a witness and stated that the plaintiffs were the owners in. possession of the suit land and that from 1962 to June, 1963 he (Banthi Lal) was away to Dehra Dun, his brtoher had gone to Kalpa and in their absence defendant, Kirpal Singh illegally took possession of the land and constructed a house on it. He also said that the mtoher of the defendant had constructed the house 20 or 25 years ago and having made that statement clarified it by saying that the mtoher of the defendant had built the house on her own land but in the absence of the plaintiffs the defendant demolished the same and built it on the site in dispute. Ram Sagar plaintiff also appeared as a witness and supported his case. He corroborated plaintiff Banthi Lal that possession of the land in dispute was taken by Kirpal Singh during Ram Sagar's absence. Keshwa Singh (P.W. 1) said that the suit land was taken as 'Nautor' by the plaintiffs 18 or 19 years ago and about three years back Kirpal Singh constructed a 'Ktohar' thereupon. Badri Dass (.PW. 2), however, said that the defendant was in possession of the suit land for the last 10 or 13 years and had built a house and a 'Ktohar' on it. Lachhman Singh (P. W. 3) who also supported the plaintiffs' case and Gita Ram (P. W. 4) Patwari, relying on revenue entries with respect to the year 1962, stated that Kirpal Singh v as shown in possession. The defendant also appeared as his own witness and besides himself examin- ed Nain Singh, Bhagrath Dass, Mohar Ram, Barwag, Ram Dayal Singh and Rama Nand. These witnesses supported the defendant's case that he had been in possession for over 30 years.

(3) The nature of the structure is nto very clear from the evidence. It, however, appears from the inspection report of the learned trial Judge that one room on the first-floor, used as residence, is a wooden structure and the roof over the ground-floor is covered with mud. The learned District Judge while dismissing the appeal does nto appear to have taken any ntoice of the documentarv evidence as I find no discussion thereon in the judgment although I e has made a mention of revenue papers while giving the versions of different parties. The learned trial Judge ordered the inspection of the spto and fixed 17th May, 1966, for the purpose. There is no dispute about the fact that immediately after the inspection the learned trial Judge made an order fixing 21st May, 1966, as the date for the announcement of the judgment. Btoh the parties attended the inspection and the leaned trial Judge recorded the following report :-

'Ivisited the disputed spto that is land comprsing KhasraNo. 1100 min. measuring 5 bids was situate in village Sangla today in the presence of Shri Banthi Lal one of the plaintiffs, and Shri Kirpal Singh, defendant. The Tehsiddar, Sangia. was also present. There are six rooms in the ground floor used as cattle sheds and three grain stores and a 'Bhagal' (one roomed wooden structure used for living of human beings) on the first-floor. The roof over the ground-floor is flat one with mud on it and the grain, stores and the Bhagal are on the roof of the first floor of the main building. The age of the struc- tures seems by an eye estimate to be in the neighborhood of 20 or 25 years It is difficult to conclude that these structures were pre- viously at a different site than the present one.'

(4) One of the grievances of the learned counsel for the appellants is that the learned trial Judge acted illegally in recording that the age of the building appear' d to be 20 or 25 years. That nto had, accord- ing to the learned counsel for the appellants, resulted in prejudice to them as the same went beyond the legitimate purpose of inspection pre- scribed by law, namely, the appreciation of evidence. The learned counsel for the appellants relied on Abdul Baqi v. M. Fakhrul Islam^ ; Muni- cipal Council, Calicut v. Palakkal Velayudha Menon^ ; and Raghoba v. Anandabai^. In Abdul Baqi's case, it was said that the only purpose of local inspection was to understand the evidence and ntohing more and the Court is nto expected to contradict a witness by its inspection report. It was observed :-

'Awitness may make a statement which from the local inspec- corporation may appear to be untrue, but the learned Judge is nto entitled to say that it is untrue from what he himself observes. The reason for granting this power of local inspection is perfectly obvious. In certain cases facts are complicated and without having the opportu- nity to see the subject matter of the witnesses evidence it is almost impossible to understand what the witness means and it is for thati' purpose that the Judge is entitled to inspect the locality. If he wan- ' ted to contradict D. W. I he was nto entitled to do so from what he saw on the spto as it is perfectly obvious that had the parties been entitled to question the learned Judge on what he saw a very diffe- rent result might obtain from that which the learned Judge describes in his judgment.'

Again, in the case of Municipal Council Calicut, it was held that though it may be proper on the part of a Court to make local inspection for understanding and following the evidence and to appreciate it properly it was nto open to the Court to base finding of fact solely on the result of local inspection without giving opportunities to the parties to let in counter evidence and explain the observations recorded as the result of the inspection. In Raghoba's case. it was held that it was wrong to base a finding mainly upon the Judge's own observation at the time of his personal inspection.

(5) The plaintiff, Banthi Lal, had in his statement said that the mtoher of the defendant, Kirpal Singh, had constructed the house 20 or 25 years ago and proceeded to explain that the defendant had in the plaintiffs' absence demolished the same and constructed it on the land in dispute. If the appellants had been given an opportunity to explain the observations made by the trial Judge during inspection they may have been able to show that the structure was a wooden one ; that it was a case of mere shifting of the structure from one place to antoher or of the use of old materials like planks in the new construction and, there- fore, the age of the wooden planks was no indication of the age of the construction: and that the observations of the trial Judge we're based on the look of the materials used. Whereas it is true that a Court can ins- pect the place for appreciation of the evidence it is equally true that it cannto make observations which go directly to contradict the evidence of witnesses. It may be said that in this case the resolution of the con- troversy depended on the age of the structure and, thereforee, the inspec- corporation was for appreciating the evidence and judging out whether or nto the respondent's witnesses were telling the truth when they said that the building was about 30 years old. Be that as it may, the fact remains that the parties could have had no opportunity to let in counter evidence and explain what is recorded as the result of inspection. The mind of the lower appellate Court must have been considerably influenced by the inspection ntoe. As I have said earlier, the impression of the learned trial Judge may have been based on the age of the materials used in the structure.. This is, thereforee, nto a case where the inspection has been confined only for the purpose of appreciating the evidence. The learned District Judge has observed that 'the inspection ntoe of the Sub Judge, read with the oral evidence produced by the parties, leaves no doubt that the house, 'Ktohar' and the 'Khur' are in existence on the site in dispute for the last over 20 or 25 years. This would prove that the ver- sion of the defendant that the plaintiffs' father had given the suit land to the mtoher of the defendant for constructing a house, is true'. In my opinion, use of the inspection report has been made beyond the per- missible limits. In view of this fact, and in view of the fact that the learned District Judge does nto appear to have considered the documen- tary evidence, I am inclined to set aside the judgment of the learned District Judge and send the matter back to him for recording a fresh decision after appreciation of the entire evidence.

(6) Before I part with the case, I must deal with a preliminary ob- jection raised on behalf of the respondent that the appeal is nto compe- tent. The said objection is based on paragraph 32(l)(b) of the Himachal Pradesh (Courts) Order, 1948. The relevant part of paragraph 32 reads: -

'32.(1) A second appeal shall lie to the Court of the Judicial Commissioner in any of the following cases from an appellant decree of a District Court on any ground which would be a good ground of appeal if the decree had been passed in an original suit, namely :- * * (b) in a land suit, (i) * * * * (ii) if the value of the suit is one thousand rupees or upwards, or the decree of the District Court involves directly some claim to, or question respecting, property of like value.'

(7) In the plaint, the jurisdictional value of the suit was stated to less than Rs. 21.00 being 30 times the land revenue. The learned counsel agree that this value was fixed because of the requirement of the Suits Valuation Act. That would nto reflect the correct value of the property. With the grounds of appeal the appellants have filed an affidavit that the value of the land is more than Rs. 1,000.00. There is no counter- affidavit filed by the respondent. That apart, in my opinion, the dec- ree of the District Court involves directly some question respecting pro- perty of the value of more than Rs. 1,000.00. It is nto disputed that the value of the land plus the structure thereon would be more than Rs. 1,000.00. Under paragraph 32 an appeal is competent nto only when the decree of the District Court involves directly some claim to property of Rs. l,000.00 or more but also when such a decree involves some 'ques- corporation respecting property of the like value.' The question involved in this appeal is undoubtedly respecting the land and the structure because the defendant maintains that he is entitled to the possession of the land as well as of the structure while the plaintiffs claim that they should get the possession of the land which must necessarily result in the removal of the structure by defendant Kirpal Singh if the plaintiffs succeed. The expression 'question respecting, property of like value' has, in my opinion, a wider import than the words 'claim to' within paragraph 32. In my opinion, the appeal is, thereforee, competent.

(8) In the result, I set aside the judgment of the District Judge dated 16th October, 1967, and send the matter back to him for record- ing a fresh decision in the light of the observations made above. The parties will bear their own costs.

(9) The parties to appear before the learned District Judge on July 15,1968.


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