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Shyam Singh Vs. Hira Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 73 of 1969
Judge
Reported inAIR1972HP135
ActsEvidence Act, 1872 - Section 40; ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantShyam Singh
RespondentHira Singh and ors.
Appellant Advocate S. Malhotra, Adv.
Respondent Advocate Kailash Chand, Adv.
DispositionAppeal dismissed
Cases ReferredB. N. Kashyap v. Emperor
Excerpt:
- .....that shyam singh was not a tenant of the plaintiff but a mere trespasser, and it decreed the suit on the basis of the plaintiff's title. shyam singh appealed to the learned district judge, and the appeal was allowed and the case remanded to the trial court on the finding that the suit had not been brought on the basis of title, that in fact the land had been mortgaged and that, therefore, the related issues which had not been decided by the trial court should now be decided. shyam singh appealed to the learned judicial commissioner against the remand order, and on may 31. 1965, the learned judicial commissioner allowed the appeal on the basis of a compromise between the parties under which the remand order was set aside and the lower appellate court was directed to dispose of the.....
Judgment:

R.S. Pathak, C.J.

1. This is a defendants' appeal arising out of a suit for possession by redemption.

2. Sohanu filed a suit alleging that he executed mortgage with possession in 1943 in favour of Hiru for Rupees 300/- and thereafter executed another mortgage in 1944 in favour of the same mortgagee for Rs. 800/-, that the amount had been realised by the mortgagee from the land and that therefore he was en-titled to redeem the properties. The suit was contested by the defendant, Shyam Singh, on the ground that he was a tenant in possession from Hiru and was not liable to be ejected. The trial court held that the mortgages had not been proved, that Shyam Singh was not a tenant of the plaintiff but a mere trespasser, and it decreed the suit on the basis of the plaintiff's title. Shyam Singh appealed to the learned District Judge, and the appeal was allowed and the case remanded to the trial court on the finding that the suit had not been brought on the basis of title, that in fact the land had been mortgaged and that, therefore, the related issues which had not been decided by the trial court should now be decided. Shyam Singh appealed to the learned Judicial Commissioner against the remand order, and on May 31. 1965, the learned Judicial Commissioner allowed the appeal on the basis of a compromise between the parties under which the remand order was set aside and the lower appellate court was directed to dispose of the appeal afresh both on the basis of title and on the basis of the claim to redeem the mortgages. During the pendency of the appeal before the learned District Judge, the plaintiff died in 1966 and his legal representatives were brought on the record on January 21, 1969. Then, on May 16, 1969 Shyam Singh applied for permission to amend his written statement by including the plea that he was a tenant under the mortgagee, who had let out the land as an act of prudent management, and that therefore his tenancy was binding on the plaintiff. On August 16, 1969, the learned District Judge rejected the amendment application and simultaneously dismissed the appeal on its merits finding that as the mortgagee had derived benefit from the land to the extent of Rs. 13,078.93 the plaintiff was entitled to a decree for possession by redemption. Shyam Singh now appeals to this Court.

3. Learned counsel for the appellant contends that the lower appellate court erred in rejecting the amendment application. The contention cannot be accepted. The lower appellate court refused permission to amend on the ground that the amendment application was grossly belated and that it had been made mala fide. Learned counsel has attempted to show that the amendment application could not have been made before May 1969. It seems to me that at least after the order of the learned Judicial Commissioner in May 1965 that the case should be decided on the basis of the mortgages as well as of title, the appellant could have sought an amendment of the written statement. The amendment application could have been moved on any date between May 31,1965 and August 31, 1966 when the plaintiff Sohanu died. No such attempt was made, and it appears that it was only after the substitution of the legal representatives of the deceased plaintiff on . January 21, 1969 that the amendment, was sought by the appellant. It is worthy of notice that even after the substitution of the legal representatives the amendment application was not moved for about four months. It is difficult to hold that the decision of the lower appellate court to refuse amendment is erroneous.

4. Learned counsel for the appellant then urges that the lower appellate court has assumed that the trial court had found that the mortgagee had derived a benefit of Rs. 13,078.93 from the land when in fact the trial court never gave that finding. Now it appears from the judgment of the trial court that when it came to consider how much benefit the mortgagee had derived from the mortgaged land, it referred to the Naqsha Normal prepared by the Kanungo which had been produced at the instance of the plaintiff. The document is Ex. P. W. G/A. According to that statement, the mortgagee had derived a benefit of Rs. 13,078.93 from the land. When the trial court decree was set aside by the lower appellate court and the case remanded, it appears that in the proceedings consequent upon remand the trial court proceeded to record evidence relating to the issue as to the amount of benefit derived by the mortgagee. But, thereafter, as a result of the compromise between the parties before the learned Judicial Commissioner, the remand order was set aside and the consequential proceedings taken by the trial court were also nullified. The parties appear to have agreed that the appeal should be disposed of by the learned District Judge on the basis of the material already on the record. In the judgment under appeal, the learned District Judge has no doubt observed that the trial court had found that the mortgagee had derived a benefit of Rs. 13,078.93 from the usufruct of the land. But when making that observation the learned District Judge had in mind the Naqsha Normal referred to by the trial Court, and inasmuch as he affirmed the trial court decree he must be taken to have accepted the evidence furnished by that document and to have approved of the comment of the trial court that 'according to this statement the defendant No. 1 has derived benefit from the land to the extent of Rupees 13,078.93'. It has not been shown that the Naqsha Normal does not contain that statement. It is pointed out on behalf of the appellants that in the proceedings taken by the trial court consequent upon remand, the appellant produced witnesses in order to disprove that the mort-gage amount had been realised from the usufruct of the property, and as those proceedings were nullified by reason of the order dated May 31, 1965 of the learned Judicial Commissioner, the appellant has had no opportunity to show that the mortgage amount had not been realised. It seems to me that that contention is not open to the appellant because of the compromise, to which he was party before the learned Judicial Commissioner, whereby it was agreed that the remand order should be quashed and the appeal disposed of by the learned District Judge afresh, apparently on the basis of the material already on the record. There was no direction that the parties should be allowed to adduce further evidence.

In the circumstances, I am unable to hold that the lower appellate court erred in decreeing the suit.

5. One other contention on behalf Of the appellant may also be noticed. It is pointed out that the learned District Judge has relied upon the judgment in the pre-emption suit filed by the plaintiff against Shamsher Singh in coming to the finding that the land in dispute had been mortgaged. It is urged that the judgment is inadmissible inasmuch as it cannot be relied upon as a fact. My attention is drawn to B. N. Kashyap v. Emperor, AIR 1945 Lah 23. In my opinion, the law laid down in that case is not attracted to the facts before me. In that case what was held was that a Judgment on certain facts merely constituted the opinion of the Judge in respect of those facts. In the present case. I am concerned with the existence of the judgment as a fact and the circumstances in which it was delivered. To my mind, the judgment is a document for the purpose of showing that a suit for pre-emption had been filed by Hiru, and that the suit terminated in a decree for preemption as a result of which he stood in need of Rs. 1,100/- for satisfying the decree.

6. The appeal fails and is dismissed with costs.


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