Ram Rakha and Others vs Brahma Nand and Others

Surinder Sarup, J.—The suit of the Plaintiff-Respondent Brahma Nand for declaration to the effect that he is in possession as tenant-at-will over the land measuring 16 Kanals and 14 Marlas, with consequential relief of permanent injunction restraining the Defendants-Appellants from interfering in his possession etc., was dismissed by the trial Court of the learned Sub-Judge, 1st Class, Court No. (II), Una by judgment dated 15.6.1985. His appeal has, however, been accepted partially by the learned District Judge, Una by judgment dated 29.9.1992 whereby a decree to the effect that he has been declared to be in possession as tenant-at-will over 5 Kanals and 14 Marlas out of the total land in dispute with consequential relief of permanent injunction restraining the Defendants from interfering in his possession over the said area, has been passed. Hence, the present second appeal by the Defendants.

The whole dispute revolves around on the alleged statement made by one Guru Dutt before the Assistant Consolidation Officer whereby he admitted the Plaintiff to be as tenant-at-will over 5 kanals and 14 Marlas aforementioned, on the basis of which, the said Assistant Consolidation Officer passed an order dated 21.4.1979 which is Exbt. P-5 on the record. As a result of this order, the Plaintiff-Respondent was held to be a tenant-at-will.

However, Defendant Ram Rakha filed a revision application u/s 54 of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 against the said order of the Assistant Consolidation Officer (AC 2nd grade) dated 21.4.1979. By an order dated 5.11.1980, the Director, Consolidation of Holdings, H.P. set-aside the order of the Assistant Consolidation Officer, dated 21.4.1979 vide Exbt. P-5, copy of the order of the Director being Exbt. P-6 on the record. It was held therein that the said Guru Dutt, one of the co-sharers in the joint holdings has by his admission created the tenancy and this he under the law can only do only to the extent of his share in the holdings which comes out to 1 Kanal and 7 Marlas. It was further directed vide Exbt. P-6 that a separate Kurah be formed to this extent in the joint holdings under the ownership of Guru Dutt and Brahma Nand be recorded as tenant-at-will under him.

A perusal of the impugned judgment of the learned lower appellate Court indicates that while recording findings he has come to the conclusion that it is a general principle that a co-sharer cannot admit a tenant more than his share in the joint land without the consent of other co-sharers. He has proceeded to give his own exposition about the law relating to joint holdings and co-sharers by formulating an exception to the above general principle. In his perception, the learned lower appellate Court has recorded a finding in the impugned judgment that where a co-sharer is in the management of whole of the joint land on behalf of his co-sharers, his admission qua the tenancy of third person shall be deemed to be binding on the other co-sharers and also because he would be the best person to know and tell the person in actual possession of the land and about his status.

To say the least, the above finding by the learned lower appellate Court is without any basis, either in law or on facts of the case. Not only that, a bare reading of the impugned judgment indicates that he has no-where even made a passing reference to the order of the Director of Consolidation, dated 5.11.1980 (Exbt. P-6). It was incumbent on the learned lower appellate Court to adver to the said piece of evidence which was very material and crucial for resolving of the controversy between the parties in the instant case. This glaring omission on the part of the learned lower appellate Court vitiates the impugned judgment.

It has been laid down in the case reported as Ishwar Dass Jain (Dead) Thr. Lrs. Vs. Sohan Lal (Dead) By Lrs., that when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion, interference with findings of fact is permissible in second appeal. The said principle has been laid down in a series of judgments of the Supreme Court of India in relation to Section 100, CPC after the 1976 amendment. Reference in this connection may be made to the cases reported as Dilbagrai Punjabi Vs. Sharad Chandra, ; Sundra Naicka Vadiyar (dead) by LRs. and another Vs. Ramaswami Ayyar (dead) by his LRs., ; Mehrunissa v. Visham Kumari AIR 1998 SC 427. The above ratio of the catena of decisions by the Apex Court applies with full force to the instant case. It necessarily follows that a substantial question of law has arisen in the facts and circumstances, referred to above.

For the aforesaid reasons, this appeal is accepted. The impugned judgment of the learned District Judge, Una dated 29.9.1992 is set aside and the case is remitted back to the said Court for a fresh decision in accordance with law in the light of the findings and observations recorded above. Since the matter pertains to a suit which was filed as far back as 1981, the learned District Judge, Una shall dispose of the first appeal before him within three months from the date of the first appearance of the parties in that Court. The parties through their learned Counsel are directed to appear before the learned District Judge, Una on 29.3.2000. There will be no order as to costs of this appeal.