Chandan Singh and others vs Ajay Kumar

G.S. Sandhawalia, J.—This order shall dispose of RSA Nos. 4221 & 4922 of 2010 as similar facts are involved and the nature of claim also is the same since both the suits pertain to suit''s for recovery by way of damages on account of burning of tractors and the defendants are also the same though the plaintiffs being owner of two tractors are different. The facts are being taken from RSA No. 4221 of 2010. The present appeal has been filed by the defendants against whom the suit for recovery by way of damages was decreed and a decree for recovery of Rs. 1,20,000/- with interest @ 4% per annum from the date of filing of the suit, i.e., 23.07.2002 on account of burning the tractor of the plaintiff.

The case of the plaintiff was that a mandir existed in Village Subana, Tehsil and District Jhajjar known as Radhey Shyam Thakur Dwara and Awadh Bihari Dass was the Mahant of the mandir and agricultural land measuring approximately 28 acres, standing in the name of the Gram Panchayat was given in ''Maffi'' till the existence of the mandir 200 years ago and the Mahant of the mandir had been taking benefit of the land, cultivating himself or through someone else. On 27.04.2001, one Narayan Dass, who was Mahant of the mandir, died and the villagers of Samaspur Majra tried to take possession of the land of the mandir and the land was attached on 16.05.2001 u/s 145 Cr.P.C. by the order of SDM, Jhajjar and the Naib Tehsildar, Jhajjar was appointed as Receiver of the said land which was put to an open auction for cultivation for one year and Mahant Avadh Bihari Dass being the highest bidder was given the land in July, 2001 for cultivation for one year. It is the case of the plaintiff that he was driving his tractor bearing No.HR-14-2741 make Swaraj 724 when the defendants had poured diesel on the tractor of the plaintiffs and set it on fire and fully burnt the same. For the said incident, FIR No. 385 dated 11.08.2001 u/s 148, 149, 323, 435 IPC was lodged at Police Station Jhajjar and the case was pending against the defendants. The defendants were asked to make good the loss suffered but the defendants did not paid any heed to the requests of the plaintiffs, and accordingly, the suit had been filed.

The defendants appeared and filed their written statement and denied that any of them had gone to the disputed land and neither of them had set the tractor on fire or any other item but the factum of registration of the case was not denied. However, it was held that the case was false and registered by the local police in collusion with the plaintiffs.

In order to prove his case, the plaintiffs examined as many as 5 witnesses whereas the defendants examined 4 witnesses. The trial Court, after taking into consideration the statements of Ashok Kumar, Criminal Ahlmad, Laxmi Narayan SI, In-charge, Police Chowki Badali (PW2), came to the conclusion that the defendants had been challaned and the certified copy (Exhibit P4) of the same was taken into consideration. The ownership of the tractor was proved by examining Sant Ram who was the Clerk of the registering authority and the plaintiff himself appeared in the witness-box. One Suresh was examined as PW4 who stated that the defendants burnt the tractor of the plaintiffs and he also sustained injuries in the fighting which took place at the time of burning of the tractor. Ved Pal, PW5 was examined as expert who submitted the report regarding the estimate of repair of damage of the tractor(Exhibit PW5/B). The defendants, as mentioned above, examined 4 witnesses and defendant No. 1, Chandan Singh himself appeared as DW3 who denied the allegations of burning of the tractor. The witness of the defendant, Karan Singh, DW4 has admitted that the tractor was burnt but that he was not present at the time of the incident and a criminal case is pending in this regard. Accordingly, the trial Court came to the conclusion that keeping the preponderance of probability and the documentary evidence on the file, the defendants had burnt the tractor and a case has been registered against them, decreed the suit for a sum of Rs. 1,20,000/- with interest @ 4% per annum vide judgment and decree dated 20.05.2009.

The appeal filed by the defendants met the fate of dismissal on 24.04.2007 by the District Judge, Jhajjar, and accordingly, the present regular second appeal has been filed.

Counsel for the defendant-appellants has contended that the Courts below were in error in decreeing the suit and has placed on record the judgment dated 20.08.2009 passed by the Judicial Magistrate, 1st Class, Jhajjar wherein defendant-appellants were acquitted of the offences u/s 148, 149, 323, 435 of the Indian Penal code. Accordingly, it was contended that once the criminal Court had acquitted the defendant-appellants along with other co-accused, the lower appellate Court was in error in up-holding the suit for recovery. However, the contention of the counsel for the defendant-appellants is without any basis. In the present case, it has been brought on record that the plaintiff is resident of Village Subana and there was a dispute regarding the property of the mandir between the residents of Village Subana and Village Samaspur Majra of which the defendant-appellants belonged. The land had been attached and the residents of Samaspur Majra were wanting to lake forcible possession of the land in question. It is in such a background that the tractor of the plaintiff-respondents was burnt by the defendant-appellants who were also named in the FIR No. 385 regarding the incident dated 11.08.2001 on the land of the temple. The allegations regarding the incident duly stands proved since the police officials had been examined and copy of the challan was also placed on record. Apart from the recovery memo of the tractor, the plaintiff-respondents have proved their ownership of the tractor along with the report showing the estimated cost of repair (Exhibit PW5/B). There is admission on the part of the witnesses of the defendant-appellants himself that the incident took place. Keeping in view all these circumstances, the Courts below have come to the concurrent findings that the plaintiff-respondents have been able to prove the preponderance of probability of his version. The plaintiff-respondents had also, apart from examining himself, examined one Suresh Kumar who sustained injuries in the fighting. Therefore, the contention of the counsel that he should be given the benefit of the judgment of acquittal cannot be considered because, firstly, the said judgment was passed on 20.08.2009 but no effort was made to place it on record before the Lower Appellate Court by way of filing application under Order 41 Rule 27 CPC. The said judgment sought to be placed on record in the present case u/s 151 of the CPC and-without any such application being moved before the Lower Appellate Court, cannot be taken notice of in a regular second appeal. The provisions of Order 41 Rule 27 CPC specifically provide that where such evidence could not be produced at the time of the decree appealed against was passed established before the appellate Court, reasons for the non-production of the same earlier on account of due diligence has to be shown. No such steps were taken by the appellants before the Lower Appellate Court, and accordingly, the present application u/s 151 CPC to place on record the same is not maintainable. Even otherwise, leaving apart the technicalities that under the provisions of Order 41 Rule 27 even otherwise, the Court is to consider whether the appellate Court requires any document to enable it to pronounce judgment or for any other substantial cause.

In the present case, this Court is of the opinion that the said judgment is of no relevance since the same pertains to criminal proceedings and since the fact whether the defendant-appellants along with other co-accused were liable to be convicted the Judicial Magistrate, 1st Class, Jhajjar had given them the benefit of doubt while holding that the prosecution has failed to prove its case against the accused beyond all reasonable doubts. The Hon''ble Supreme Court, in the case of Anil Behari Ghosh Vs. Smt. Latika Bala Dassi and Others, has held that the judgment in criminal Court where a person was convicted shows that there was a trial resulting such conviction but the question has to be decided afresh on the basis of the civil proceedings. Similarly, in the ease of Seth Ramdayal Jat Vs. Laxmi Prasad, , it has been held by Hon''ble Apex Court that a judgment in a criminal case is only for a limited purpose and relying only on or on the basis thereof, a civil proceedings cannot be determined. The Hon''ble Supreme Court, in the cases of Syed Askari Hadi Ali Augustine Imam and Another Vs. State (Delhi Admn.) and Another, and Sh. Vishnu Dutt Sharma v. Smt. Daya Sapra,4 (2009)3 CCC 311 has held that the findings in criminal proceedings would not be binding in civil proceedings and it was subsequently followed in Kishan Singh v. Gurpal Singh,5 (2010)4 R.C.R. (Criminal) 74. The standard of burden of proof in criminal proceedings and civil proceedings is different and that once the Courts below have come to the concurrent findings of fact that there is report of the expert to the extent of the damage which has been caused, the counsel for the defendant-appellants cannot be justified in saying that there was no basis to ask for recovery of the sum of Rs. 1,20,000/-. This Court, in the case of Neena Malhotra v. Ashok Malhotra,6 2007(1) R.C.R. (Civil) 613 has held that judgments of the Courts of criminal jurisdiction are only relevant u/s 43 of the Indian Evidence Act for two purposes, i.e., that a case has been registered and that the accused has been either acquitted or convicted. The facts determined in the criminal cases are neither relevant in the determination of civil rights nor those findings can be made basis for determination of rights in civil cases. As noticed above, in the present case, the plaintiff has laid substantive evidence before the trial Court to show that the tractor was burnt by the defendants, and accordingly, compensation has been granted. Accordingly, in the absence of any substantial question of law arising for consideration, the present appeal is dismissed in limine.