1. This second appeal by a defendant arises out of a suit for possession of land and rnesne profits. The trial Court (Subordinate Judge of Theog) granted a decree for possession as well as for Rs. 384/- as mesne profits.. The defendant then went up in appeal to the learned District Judge. There, the plaintiff withdrew his claim for mesne profits. The District Judge then heard arguments on the rest of the appeal and, eventually, dismissed the appeal, subject to this modification that the decree as to mesne profits passed by the trial Court was set aside. The defendant now comes up in second appeal,
2. When this- appeal came up for hearing, doubt was expressed as to whether the second appeal was competent, under the circumstances. Learned counsel took time to study this point and their arguments on this point were heard. The suit was valued at Rs. 310/- for the relief of possession and at Rs. 512/- on account of mesne profits. The claim for mesne profits was given up before the Court of appeal and, therefore, we are left only with the relief of possession, which was valued, as already stated, at Rs. 310/-. The area of the land involved is about two bighas.
3. Second appeals to this Court are governed by para. 32 of the Himachal Pradesh (Courts) Order. This being a land suit, the right of appeal would be governed by the provisions of para. 32(1)(b), Himachal Pradesh (Courts) Order, which runs as follows:
'A second appeal shall Me to the Court of the Judicial Commissioner in any of the following cases from an appellate 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, in a land suit,
(i) if the value of the suit is two hundred and fifty rupees or upwards, or the decree involves directly some claim to, or question respecting, property of like value, and the decree of the District Court varies or reverses otherwise than as to costs the decree of the Court below, or
(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.'
4. Learned counsel for the appellant argued that the decree of the District Court has had the effect of varying the decree of the trial Court, otherwise as to costs, and since the relief for possession was valued at more than Rs. 250/-, a second appeal would be competent under para. 32 (1)(b)(i). Learned counsel for the respondent, on the other hand, contended that no second appeal was competent, since the decree of the District Court could not be deemed to have varied or reversed the decree of the trial Court.
He pointed out that the plaintiff gave up the relief regarding mesne profits and, consequently, that matter was withdrawn from the adjudication of the Court. As far as the relief for possession was concerned, the District Judge upheld the decree of the trial Court. In support of his argument, Mr. M.ehta cited the following, rulings:--(a) 'Brahma Nand v. Sanatan Dharm Sabha', AIR 1944 Lah 329 (A), where a Full Bench of that High Court held as follows:
'The plaintiff brought a suit under Section 92 alleging that the trust in respect of the suit property was a public trust and prayed for the removal of the defendant from the trusteeship of the aforesaid trust and for account from the defendant in respect of the trust property for a certain period.
The main contest raged round the question whether the property in dispute was a public trust, or not. The trial Court came to the conclusion that it was a public trust and consequently granted a decree to the plaintiff removing the defendant from the trusteeship of the property described in the plaint and appointing a new trustee for the management thereof.
It also made a preliminary decree directing accounts to be taken in respect of the Income and expenditure of the land in suit for a certain period. Against this decree the defendant preferred an appeal to the District Judge but he too agreed with the Court below and dismissed the appeal.
The defendant then presented an appeal to the High Court before which the plaintiffs-respondents, with a view to cut short the controversy, abandoned their relief in respect of accounts, but contested the appeal on the remaining issue.
The High Court maintained the concurrent findings of the Courts below as regards the nature of the property in dispute and accordingly dismissed the appeal so far as that matter was concerned. But inasmuch as the relief as to accounts had been abandoned by the respondents themselves, the decree that was drawn up in the High Court varied the decree of the Court below to that extent.
In the application by the unsuccessful appellant for leave to appeal to His Majesty in Council under Section 110, it was found that the value of the subject-matter of the suit as well as that of the subject-matter in dispute on appeal to His Majesty in Council was far in excess of Rs. 10,000/-.
It was argued for the applicant that inasmuch as the decree as passed by the Courts below, so far as it related to rendition of accounts., had actually been varied by the decree of the High Court, he was entitled as of right to appeal to His Majesty in Council, despite the fact that the variation was out and out in his favour and he had no grievance whatever in that respect.
The question for determination therefore was whether the decree made by the High Court was one of affirmance or of variance:
Held that as the respondents had of their own accord withdrawn their relief in respect of accounts any variation that followed in the decree of the High Court was not the result of an adjudication by the High Court but of the parties' own action. It was as if that part' of the case had been entirely removed from the adjudication of the High Court and consequently it ceased to have any concern with it whatever. So far as the High Court had occasion to deal with the matter in controversy before it, the decree of the Court below had been affirmed and any variation that was introduced in it was merely because the parties had themselves so willed. Thedecree of the High Court was, therefore, to all intents and purposes, a decree of affirmance within the meaning of Section 110.'
(b) In--'Prandhan Das v. Patayet Saheb promode Chandra Deb', AIR 1946 Pat 19 (B), a Division Bench of the Patna High Court, following AIR, 1944. Lah 329 (A), held that where the decree of the High Court is one of affirmation, except as regards a variation made in the lower Court's decree, with the consent of the parties trying to appeal to the Privy Council, then the decree of the High Court must be deemed to be one of affirmation,
5. On the analogy of the above authorities, 11 would hold that the expression 'varies or reverses' to be found in para. 32(1)(b)(i), Himachal Pradesh (Courts) Order, would denote an adjudication by the District Court after contest. I am further strengthened in this view by considering what the effect would be if the parties had arrived at a compromise before the District Judge and in pursuance thereof, the decree of the trial Court was varied.
Surely, it cannot be held, under those circumstances, that parties would have a right of second appeal to this Court, in spite of arriving at a compromise before the District Judge, which had the effect of varying the decree of the trial Court. Consequently, I hold that the second appeal is not competent, because the relief for possession was valued at less than Rs. 1,000/-, that being the minimum valuation necessary to give a right of second appeal under para. 32(1)(b)(ii), Himachal Pradesh (Courts) Order.
6. Learned counsel for the appellant then prayed that this may be treated as a revision petition. He urged the following points:--In the first place, he argued that the suit was triable exclusively by a revenue Court. His contention was that the suit was one under Section 30, read with Section 111(3), THIRD GROUP, (1), Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. Reliance was placed by him on--'Thakar Das v. Kanhaya', 1 Pun Re 1893 Rev (C);--'Ghuna Mal v. Jhanda Singh', 82 Pun Re 1894 (D) and--'Rattan Das v. Battan Singh', AIR 1918 Lah 185 (E).
The first mentioned ruling related to a suit between a first mortgagee and a second mortgagee. Ruling No. 2 also arose out of a mortgage, while the third ruling related to a case arising out of a lease. In the present case, it is significant that the plaintiff sued the defendant as a trespasser. Mr. Mehta invited my attention to para. 6 of the written-statement, wherein the jurisdiction of the Court was clearly admitted. The question of jurisdiction was raised, for the first time, before the District Judge.
Mr. Mehta further pointed out that the. defendant does not admit the plaintiff to be his landlord. On the other hand, he clamed to be owner by adverse possession. A question of title was clearly involved and as such the Civil Court was the proper forum. In--'Jogi Mal v. Phulmu', Civil Ref. No. 5 of 1954 decided by this Court on 18-8-1955 (Him-P) (F), following an earlier decision of this Court reported in--'Jagarnath v. Gayaroo', AIR 1951 Him-P 51 (G), I had held that, in the absence of the relationship of landlord and tenant, the jurisdiction of the Civil Court could not be ousted.
The plea that the Civil Court had no Jurisdiction, in the circumstances, must fail. For the same reason, Mr. Kashyap's argument that the District Judge had no Jurisdiction to permit the plaintiff to withdraw his claim for mesne profits also falls.
7. In the second place, it was argued that the Courts below have erred in relying on documents, Exhibits P. E. P. P and P. G. Mr. Kashyap contended that these documents had been exhibited, while the case was proceeding ex parte against the defendant. The ex parte proceedings were set aside on 19-3-1951 and it is contended that it was incumbent upon the plaintiff to recall his witnesses and prove these documents again in the presence of the defendant. Learned counsel for the respondent, on the other hand, pointed out--and in my opinion, not without justification--that the defendant took no objection to the mode of proof and did not move the Court to recall the plaintiff's witnesses. In this connection, my attention was invited to--'Gopal Das v. Sri Thakurjl', AIR 1943 PC 83 (H), wherein their Lordships of the Privy Council remarked as follows:
'Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain, for the first time, of the mode of proof.'
Consequently, this argument also cannot stand.
8. In the next place, it was urged that the District Judge had not considered the effect of the statement of the former Ruler of Sangri recorded on commission on 21-7-1951. It was contended that his statement goes against the plaintiff. Mr. Mehta for the respondent rightly pointed out that the oral statement of the ex-Ruler could not override the grants in favour of the plaintiff and was inadmissible in evidence under Section 91 of the Evidence Act.
The Courts below have held that the plaintiff was put in possession on 4-11-1949 and that he was, shortly afterwards, dispossessed by the defendant. Sitting as a Court of revision, it is not for me to go behind this concurrent finding of fact. As was held by my learned predecessor in--'Lalla Ram v. Naresh Chand', AIR 1952 Him-P. and Bilas 28 (I):
'The arriving at a conclusion or decision is a mental operation and the Court cannot be said to be acting in so coming to a conclusion or decision on a question of law or of fact; and so far as arriving at a conclusion or decision is concerned, whether the lower appellate Court decides questions rightly or wrongly, it has jurisdiction to do so, and even if it decides wrongly, it cannot be said to have acted with material irregularity in the exercise of its jurisdiction.'
The plea of adverse possession was, in the circumstances, rightly rejected by the Courts below.
9. In view of all that has been said above, this revision petition must fail except on one small point and that is this. Although the claim for mesne profits was given up before the District Judge, it would appear that costs incurred by the plaintiff on his relief of mesne profits were included in the decree. Mr. Mehta has conceded that this should not have been done and has made a statement to that effect.
Thus, in calculating the plaintiff's costs, thatportion of his costs, which related to the reliefof mesne profits, should be left out of consideration. The decree of the trial Court should beamended accordingly, subject to this slight modification, the so-called second appeal, which washeard as a revision petition, is rejected with costsassessed at Rs. 40/- (Rupees forty).