High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH

SHIMLA

RSA No. 60 of 2005.

Reserved on : 2

nd

July, 2019.

Decided on : 12

th

July, 2019.

Smt. Shashi Bala & Anr.…..Appellants/defendants.

Versus

Sh. Shankru (since deceased) through his legal heir Smt.

Samitra Devi alias Harpreet Kaur

....Respondent/plaintiff.

Coram:

The Hon’ble Mr. Justice Sureshwar Thakur, Judge .

Whether approved for reporting?

1

Yes.

For the Appellants: Mr. G.D. Verma, Senior

Advocate with Mr. B.C. Verma,

Advocate

For the Respondent: Mr. Bhupender Gupta, Sr.

Advocate with Ms. Rinki

Kashmiri, Advocate.

Sureshwar Thakur, Judge.

The defendants, standing aggrieved, by

concurrently recorded verdicts, respectively, by the

learned trial Court, upon, Civil Suit No. 139/1 of 1995,

and, latter by the learned First Appellate Court, upon,

1

Whether reporters of the local papers may be allowed to see the judgment?

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High Court of H.P.Civil Appeal No. 40-S/13 of 2003, wherethrough, the

plaintiff's suit, vis-a-vis, suit khasra number stood

decreed, hence, institute the instant appeal before this

Court, and, therethrough hence strive their reversal.

2. Briefly stated the facts of the case are that

the deceased plaintiff One Shankru had filed a suit for

possession of land and house comprised in Khata No.9/51

min, Khasra No.485/268, measuring 7 biswas, situate in

mauja Barog, Pargana Bharoli, Kalan, Tehsil and District

Solan, H.P. with the allegations that previously the suit

property was owned by the plaintiff, who had transferred

the same in the name of his wife Smt. Sundri, who had

constructed a house subservient to the need of

agriculture with respect to her adjoining land in Khata

No.10/52 min and, other land. After the death of Smt.

Sundri her estate has devolved upon the plaintiff and

mutations No.438 and 525 have been attested. The

house constructed over Khasra No.485/268 consisted of

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High Court of H.P.two rooms in the basement and two rooms in the upper

side adjoining the Kalka Shimla Highway. The defendant

No.1 and Shri Inder Sain Sethi desired to purchase the

suit property but being non agriculturist could not do so

and some wrong documents was got executed which

were resiled with by Smt. Sundri, the then owner and per

agreement the house over the suit property was given on

rent at the rate of Rs.200/- per month to Smt. Shashi

Bala, defendant No.1 and, all the documents executed

between Smt. Sundri and Shashi Bala and Inder were

treated as cancelled and a sum of Rs.15,000/- paid on

20.07.1980 was agreed to be adjusted towards the rent

upto August, 1988. The payment was adjusted and the

notice terminating the tenancy was served on the

defendants for delivery of the vacant possession of the

house on or before 1.10.1994. The defendant No.2

Bhagat Ram is a relative of defendant No.1 in order to

put pressure upon Smt. Sundri filed a suit for injunction

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High Court of H.P.qua the suit property, on the basis of some fake

agreement in which learned District Judge, held the

defendant No.2 to be in possession of the suit property

and he was liable to be dispossessed in due course of law

per judgment dated 13.4.1994, in case No.444/1 of 1989.

The agreement was of 1981 whereas there was bar on

purchasing of land by non agriculturist by dint of the

provisions contained in Section 118 of the H.P. Tenancy

and Land Reforms Act. Defendants No.1 and 2 had

added 2 rooms more in the said existing construction

without the consent of the plaintiff illegally and had no

right to remain in occupation of the same and are liable

to deliver the vacant and peaceful possession of the

house to the plaintiff. Shashi Bala also filed suit No.414/1

of 1988 in the year 1988 against Smt. Sundri for

injunction in respect of Khasra No.268/1 to the extent of

2 biswas 9 biswansi out of 7 biswas which suit was

decreed partly only with a liberty to recover possession in

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High Court of H.P.due process of law and appeal against the judgment was

filed whereby the suit was remanded on account of the

amendment sought. The defendant No.2 had stated that

the defendant No.3 was in possession of the part of the

property. The plaintiff after reserving his right to recover

mesne profits has filed this suit for possession of the suit

property.

3. The defendants contested the suit and filed

written statement, wherein they have taken preliminary

objections qua maintainability, cause of action,

resjudicata, misjoinder4 of defendants No.2 and 3 as

parties, valuation, estoppel, acquisition of title by the

defendant by way of adverse possession and limitation.

estoppel, res judicata etc. On merits, the defendants

averred that Smt. Sundri and Shankaru owners of the

property had agreed to sell the property in favour of

defendants No.1 and 2 by a valid agreement and

received consideration. The defendants were owners in

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High Court of H.P.possession of the suit property. Smt. Sundri had

admitted the receipt of consideration before the Tehsildar.

Shri Inder Sain Sethi did not agree to pay rent at the rate

of Rs.200/- per month to Smt. Sundri and Shankaru. The

documents were also not cancelled and validity of the

documents was upheld by Senior Sub Judge, Solan. Sh.

Bhagat Ram defendant No.2 was an agriculturist and suit

regarding 2 bighas 11 biswas land on the basis of

agreement and tatima was decreed by Senior Sub Judge,

Solan. The suit against Sh. Bhagat Ram cannot be

clubbed with the suit against Smt. Shashi Bala as the

cause of action were different and sales took place at

different times. The sale appertaining to a house which

was not subservient to agriculture and the plaintiff was

not entitled to take advantage of H.P. Tenancy and Land

Reforms Act. There was no relationship of landlord and

tenant between the parties, and, the possession of the

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High Court of H.P.defendants was also not unlawful. The suit was hit by

Section 11 and Order 2, Rule 2 CPC.

4. On the pleadings of the parties, the learned

trial Court struck the following issues inter-se the parties

at contest:-

1. Whether the plaintiff is owner in

possession of the suit land, as

alleged?OPP.

2. Whether the suit is not maintainable?

OPD.

3.Whether the suit of the plaintiff is hit

by principles of resjudicata?OPD

4.Whether the suit is bad for

misjoinder of parties?OPD.

5.Whether the suit is not properly

valued for the purpose of court fee

and jurisdiction?OPD.

6.Whether the plaintiff is estopped

from filing the suit as alleged?OPD.

7.Whether the defendants have

become owners of the land by virtue

of adverse possession?OPD.

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High Court of H.P.8.Whether the suit is barred by

limitation?OPD.

9.Relief.

6. On an appraisal of evidence, adduced before

the learned trial Court, the learned trial Court decreed

the suit of the plaintiff/respondent herein. In an appeal,

preferred therefrom, by, the defendants/appellants

herein, before the learned First Appellate Court, the latter

Court dismissed, the, appeal, and, affirmed the findings

recorded by the learned trial Court.

7. Now the defendants/appellants herein, have

instituted the instant Regular Second Appeal, before, this

Court, wherein they assail the findings, recorded in its

impugned judgment and decree, by the learned first

Appellate Court. The appeal stands admitted by this

Court, on the following substantial questions of law,

respectively framed, on, 3.6.2005, and, on 10.12.2018:-

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High Court of H.P.1. Whether bar of provisions of Section 118 of the

H.P. Tenancy and Land Reforms Act has not

been put to trial in accordance with law and

findings are vitiated and whether in the present

case property in suit being built up therefore no

prior permission from State Government of

Himachal Pradesh was required to be obtained?

2.Whether the appellant is entitled to the

protection as contained in Section 53-A of

Transfer of Property Act as held in 2002(3) SCC

Page 676?

3.Whether respondents having set up plea of

tenancy against appellant No.1 and in view

view of the fact that PW-1 has deposed nothing

as to when and between whom the alleged

tenancy was created, therefore, in the absence

of any agreement for creation of tenancy claim

of the respondent was required to be rejected

and disbelieved and for want of termination of

tenancy suit merit dismissal?

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High Court of H.P.4.Whether the present suit is not maintainable on

account of joinder and non joinder of necessary

parties and because of different causes of

action and the suit in question is not

maintainable on account on principle of

resjudicata as well as estoppel.?

Substantial questions of Law No.1 and 2 :

8. In, a, previous suit, inter se, the extantly

contesting litigants, rather conclusive, and, bindings

judgments, and, decrees, stood rendered, vis-a-vis, the

suit khasra number(s), hence, bearing similarity, vis-a-

vis, the extant suit khasra number, (i) judgments and

decrees whereof, stand, borne in Ex.PW1/J, in Ex.PW1/K,

and, in Ex.PW1/L, (ii) and, they make unfoldments, vis-a-

vis, the agreement, of, sale executed inter se the

executants thereof, respectively borne, in, Ex.PD,

standing pronounced to be void, (iii) and, upon its

attracting, the, statutory bar contemplated in Section 118

of the H.P. Tenancy, and, Land Reforms Act, (iv)

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High Court of H.P.whereupon, the afore conclusive pronouncement(s), vis-

a-vis, the afore facet, recorded, inter se, the contesting

litigants, inevitably constrain, a conclusion from this

Court, that, the substantial of law No.1, framed, with

respect to the statutory bar encapsulated, in, the

provisions of Section 118 of the H.P. Tenancy and Land

Reforms Act, being not amenable, for, being re-decided,

(v) given, the afore conclusion, vis-a-vis, the conclusivity,

and, binding effect(s), of, an earlier pronouncement

recorded, vis-a-vis, the invalidity of the apposite

agreement sale, hence, sparking thereon, rather, the

requisite statutory bar of estoppel, and, (vi) given,

whereupon, rather the solemn statutory principle of

estoppel, created by the underlying therewith principle,

of, constructive res judicata, being rendered both

negated, as well, as beinghence deprived, of its, apt legal

efficacy.

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High Court of H.P.9. Even though, the substantial question of law

appertaining, to acquisition of rights, in the suit property

by the contesting litigants, on anvil of mandate, of,

Section 53-A, of, the Transfer of Property Act, (i) even if

assumingly, they, upon, the earlier verdicts, were,

declared to be entitled, for, a, rendition, of, decree of

permanent prohibitory injunction, (ii) and, also hence

when they rather stand declared, to be, in possession of

the suit property, (iii) rather the mere validity, of, the,

afore renditions, made, vis-a-vis, the defendants, cannot

per se hence also bestow, upon, them, the benefits, of,

the afore provisions, rather validities, vis-a-vis, the afore

espousal, is to be determined, along with the afore

faceted hence conclusive, and, binding pronouncement

recorded, in the earlier verdicts, (iv) and, rather,

wherethroughs, the afore apposite agreement to sell, vis-

a-vis, the suit land, and, borne thereat, in Ex.PD therein,

hence stood declared to be nonest, its, infracting the

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High Court of H.P.mandate, encapsulated in Section 118 of the H.P.

Tenancy, and, Land Reforms Act, (iv) and, the necessary

concomitant sequel thereof, is, that the principle

embodied in Section 53-A, of, the Transfer of Property

Act, though attractable, vis-a-vis, the defendants, upon,

theirs holding possession, of, the suit property, (v) yet

the afore principle being abridged, with a rider, qua, it

operating only, upon, the entire commercial

transaction(s) being declared valid, (vi) whereas, with the

apposite sale agreement, standing pronounced to be null,

and, void, and, further when, in the earlier judgment, the

aggrieved therefrom rather, the, plaintiff herein, is

reserved, with a right, to, in accordance with law, hence,

seek recovery of possession of the suit property, (vii)

thereupon, he is entitled to a decree for possession,

rather of, the suit property, (viii) given, the agreement to

sell, being ingrained with a legal malady, reiteratedly,

whereupon, the aggrieved defendants, are, forbidden to

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High Court of H.P.stake a claim hence anchored, upon, the mandate borne

in Section 53-A, of, the Transfer of Property Act, (ix)

especially when any valid anchorage(s) thereon,

necessitate(s) qua the apposite agreement, hence,

holding legal force. Consequently, substantial questions

of Law No.1, and, 2 are hence answered in favour of the

respondent/plaintiff, and, against the

defendants/appellants.

Substantial question of law No.3 and 4.

10. The learned counsel, appearing for the

appellants has contended with much vigour, before this

Court, (i) that for want of, a, scribed agreement, hence,

creating therethroughs any tenancy, vis-a-vis, a portion,

of the suit property, (ii) thereupon, both the learned

courts below were interdicted, to record a finding, that,

the aggrieved defendants, rather assuming tenancy

rights, vis-a-vis, the suit property nor hence, it was

amenable, for the learned Courts below, to, through

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High Court of H.P.theirs, concurrently recorded verdicts, hence accept the

notice borne in Ex.PW1/C, and, Ex.PW1/D, notices

whereof, stand, evidently served, upon, the defendants,

under, postal receipts, borne in Ex.PW1/E-1 to Ex.PW1/E-

3, (iii) besides through postal certificate, borne in Ex.PW

1/E-1 to Ex.PW1/E-3. Since, the afore notices,

wherethrough, the tenancy of the aggrieved defendants,

hence, stood terminated, rather are evidently proven, to

be, served, upon, the latter, (iv) and, when the

defendants also permitted exhibition marks being made

thereon, besides when the reflections in the jamabandi,

appertaining, to the suit land, and, borne in Ex.PW1/B,

make clear palpable disclosure, vis-a-vis, the

plaintiff/respondent herein standing recorded therein, to

be owner, in possession, of the suit property, (v) besides

when the earlier conclusive, and, binding verdicts,

respectively borne, in Ex.PW1/J to Ex.PW1/L, reserving a

right, in the plaintiff/respondent, to recover, through, the

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High Court of H.P.processes of law, rather possession of the suit property,

(vi) thereupon, merely for absence of recording or

execution, of, scribed agreement(s), of tenancy, inter se,

the contesting litigants, rather do not forbade, both the

learned courts below, to discard or reject the probative

vigour, of, the afore exhibits, (vii) rather reiteratedly

when the counsel for the defendants permitted, the

embossing of exhibition marks thereon, (viii) and, when

hence the recitals borne therein, are obviously

construable to be admitted by the defendants, (ix)

thereupon, it stands formidably concluded, that dehors,

any scribing, of, any tenancy agreement, inter se, the

contesting litigants, rather the afore exhibits, abundantly

proving, the, coming into being, of, an oral, and, implied

tenancy, vis-a-vis, the suit property, and, the returning,

of, findings, vis-a-vis, oral, and, implied tenancy hence

coming into being, inter se, the contesting litigants, vis-a-

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High Court of H.P.vis, the suit property, hence, by both the learned Courts

below, rather, not warranting, theirs being disturbed.

11. The learned counsel appearing, for the

aggrieved defendants, has made, a vehement submission

before this Court, (i) that, the joinder of multifarious

causes of action in the extant suit rather being grossly

impermissible, (ii) as, all the causes of citation joined in

the extant suit, are segregable, and, all the encapsulated

causes of action are wholly segregable, and, distinct from

each other, (iii) and, when hence all the causes of action,

were amenable, for being joined in different suits,

whereas, reiteratedly, all being joined in the extant suit,

(iv) rather rendered the instant suit, to be, mis-

constituted, and, the rendition, hence by both the

learned courts below, of, decree(s) of possession, vis-a-

vis, the suit khasra numbers, by both the learned courts

below, hence, warranting interference. However, the

afore submission addressed, before this Court, by the

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High Court of H.P.learned counsel appearing, for the aggrieved defendants,

is, bereft of any vigour, as the suit khasra numbers, are,

all embodied in Khasra No.485/268, measuring 0-7

biswas, and, the afore khasra numbers, carries

therewithin, different tracts of land, respectively

measuring 3 biswas, 2 biswas, and, 2 biswas, 11

biswansi. (iv) Even though, the afore tracts or portion(s)

of lands, borne, in, a, common khasra numbers, are,

respectively possessed by all the co-defendants.

However, also when, the, respective possession(s)

thereof, by, all the co-defendants, may be, through

different agreements, hence, executed, inter se, the

plaintiff, and, the defendants concerned, (v) yet the

preeminent fact, which constrains this Court to conclude,

that, thereupon, there being no misjoinder of causes of

action nor hence any multifarious causes of action, rather

being embodied in the plaint, rather the suit being

properly constituted, is, encapsulated in (a) the suit

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High Court of H.P.khasra number being common; (b) the afore infirmity, as

evident, on a reading of Section 199 of the CPC,

provisions whereof stand extracted hereinafter:-

“99.No decree to be reversed or modified for

error or irregularity not affecting merits or

jurisdiction-

No decree shall be reversed or substantially varied, nor

shall any case be remanded in appeal on account of any

misjoinder or non-joinder of parties or causes of action or

any error, defect or irregularity in any proceedings in the

suit, not affecting the merits of the case or the jurisdiction

of the Court.

Provided that nothing in this section shall apply to non-

joinder of a necessary party.

rather barring the appellate courts, to reverse or

substantially vary or remand any lis, (c) reiteratedly on

anvil of purported mis-joinder or non-joinder of parties or

causes of action, (d) unless, the merits of the case or the

jurisdiction of the Court, is, hence, affected. However,

since the learned counsel, for the aggrieved

defendants/appellant, has not been able, to persuade this

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High Court of H.P.Court that, upon, the afore purported mis-joinings, of

causes of action, rather the merits of the case, would be

direly affected nor has been able to sway this Court, that

thereupon, the jurisdiction of the court hence stands

affected, (vi) rather with as aforestated, various tracts of

land standing borne in a common suit khasra number,

and, when in respect, of the various tracts of land, borne

in the common suit khasra number, as, evident, upon, a

perusal of, the, jamabandi appertaining therewith, and,

as borne, in Ex.PW1/B, rather the plaintiff, is, recorded to

be the solitary owner thereof, (vii) whereas, only upon,

other persons along with the plaintiff, standing, hence,

recorded in, the, jamabandis, as, appertaining to the suit

land, as apt co-owners thereof, (viii) thereupon, when the

afore, may rather avail, a, ground qua the suit being mis-

constituted, hence for his/theirs, non joinders, in the

array of co-plaintiffs, rather when, the apposite

jamabandis, rather do not, make, the afore upsurgings,

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High Court of H.P.and, when, for, wants thereof rather the afore espousal,

is, hence barred, (ix) and, when the plaintiff is reserved,

through, earlier pronounced verdicts, respectively

embodied in Ex.PW1/J to Ex.PW1/L, hence, a right to

recover possession, of the suit property, and, when hence

the instant suit, is not hit, by, the, principle of res

judicata, and, rather the afore principle, is working

adversarially, vis-a-vis, the defendants/appellants, (x)

and, the thereupon, any, joinder of purported multifarious

causes of action, in, the extant suit, are rather amenable,

for, being clubbed or joined therein, (xi) more so, when

hence, it would enable the court, to efficaciously record a

verdict, on merits, qua the contesting espousal(s), and,

also without the plaintiff being unnecessarily driven, to

institute separate suits purportedly, on anvil of,

purported multifarious causes of action, being embodied

in the plaint.

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High Court of H.P.12. Be that as it may, even otherwise, the

mandate embodied, in Order 1, Rule 3, CPC, provisions

whereof stand extracted hereinafter:-

“3. Who may be joined as defendants. -All persons

may be joined in one suit as defendants where-

(a) any right to relief in respect of, or arising out of, the

same act or transaction or series of acts or transactions is

alleged to exist against such persons, whether jointly,

severally or in the alternative; and

(b) if separate suits were brought against such persons,

any common question of law or fact would arise.”

rather enshrines (a) that the plaintiff being empowered,

to join, in the array of co-defendants, all persons against

whom, any right to canvass the relief in respect of, or

arising out of, the same act or transaction or series of

acts or transactions, are, alleged to exist, (b) and, even if

when assumingly, the, various acts or series of acts or

transactions, as stand embodied in the extant plaint, do

per se, hold apparent interconnectivity, (c) thereupon,

and, when, upon, separate suits, being reared, against,

the co-defendants concerned, would sequel, the, ill legal

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High Court of H.P.consequence, of, emanations, of, diverse/conflicting

verdicts, despite, common question(s) of fact or law

arising, inter se, the contesting litigants, rather, upon, the

plaintiff being driven, to institute separate suits, against,

the defendants concerned, (d) and, hence, when the

mandate, encapsulated in Order 1 Rule 3 of the CPC, is

with, a holistic underlying purpose, rather, for avoiding

multifariousness, of litigation, and, also for obviating

multiplicity(ies) of litigation, and, for avoiding rendition,

of, conflicting verdicts, upon, visibly mutual common

questions of law, and, with the latter parameter(s) rather

being satiated, (d) thereupon, the joining of purported

dissimilar or disconjunct causes of action, does not,

constrain this Court, to construe, qua the suit being mis-

constituted nor this Court would proceeded, to disturb,

the concurrent verdicts recorded, by both the learned

courts below.

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High Court of H.P.13. The above discussion, unfolds, that the

conclusions as arrived by the learned first Appellate

Court, as well as by the learned trial Court, being based,

upon a proper and mature appreciation of evidence on

record. While rendering the findings, both the learned

courts below have not excluded germane and apposite

material from consideration. Accordingly, the substantial

questions, of law No.3 and 4 are also answered in favour

of the respondent and against the appellants.

14. In view of the above discussion, there is no

merit in the instant appeal, and, it is dismissed

accordingly. In sequel, the impugned judgments, and,

decrees are affirmed and maintained. Decree sheet be

prepared accordingly. All pending applications also

stand disposed of. No order as to costs. Records be sent

back forthwith.

(Sureshwar Thakur)

12

th

July, 2019. Judge.

(jai)

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