Sain Dass vs Shambhu Ram and Others

Chet Ram Thakur, J.—This revision u/s 115 of the CPC (shortly called the Code) has been filed by Sain Dass challenging the order of the Senior Sub-Judge, Hamirpur, passed on 2-12-1976, dismissing the application of the Defendant for re-cast and change of the burden of issue No. 1 framed in the suit.

Sarvshri Shambhu Ram and others have filed a suit for possession of the land mentioned in para 1 of the plaint on the allegations that they are the owners of the land as recorded in the jamabandi, but during the consolidation operations after 1963, the Defendant who is a collateral of the Plaintiffs in the third degree was recorded as a tenant under the Plaintiffs and this was done in collusion with the consolidation staff and that the Defendant had also constructed a house thereon. In fact, the Defendant had no concern with the land and his possession was unlawful.

The Defendant in his written statement raised preliminary issues to the effect that the court has no jurisdiction because there was relationship of landlord and tenant between the parties. Further, the land had been allotted to him in consolidation proceedings and on that account also the civil court had no jurisdiction to entertain the suit. Lastly, it was contended that the Defendant has been in possession of the suit land since 1937, when he had constructed a house thereon, and as such his abverse possession has matured into title. On merits, it was stated that he had no knowledge about the revenue entries. His house is situate thereon the previous khasra No. 253 measuring one kanal since 1937. He pleaded adverse possession for over 12 years. During the consolidation operations also the Defendant was found in possession of the land by construction of a house and that the Plaintiffs had gone in appeal to the Consolidation Officer and the Consolidation Officer by his order allotted Khasra No. 233/1 to the Defendant instead of khasra No. 234. Against this order of the Consolidation Officer the Defendant went in appeal to the Settlement Officer, who remanded the case on 30-6-1968, but the Consolidation Officer decided the case against the Defendant Defendant again went in appeal, which was decided on 10-12-1970 and then khasra No. 233/1 was allotted to the Defendant and he also got its possession on 7-6-1972. The Plaintiffs filed an appeal against the order of the Settlement Officer before the Director of Consolidation, which is still pending and as such the court had no jurisdiction to try the suit. The court first framed two preliminary issues which were disposed of by order, dated 12-5-1976, and the following issues on merits were struck on 24-5-1976:

Whether the Defendant is a tenant in suit land, if so, on what terms? (O.P.D.)

If issue No. 1 is not proved, the Defendant has become owner by adverse possession? (O.P.D.)

Whether the Plaintiffs are estopped from filing the suit by their acts and conduct? (O.P.D.)

Relief.

The Defendant examined one witness on 26-8-1976 and thereafter he moved an application purporting to be one under Order 14, Rule 5 read with Section 151 CPC for recasting issue No. 1 and to change the onus thereof. The Defendant prayed that the issue be re-cast as under:

Whether the Defendant is not the tenant of the Plaintiffs, as alleged? (O.P.P.).

This application was opposed by the Plaintiffs and the court by its impugned order disposed of the application.

Before this Court, the Learned Counsel for the Plaintiff--Respondents raised a preliminary objection at the time of admission that the revision petition u/s 115 of the Code is not maintainable. This objection was raised on the ground that refusing to recast the issue and to change the onus is an interlocutory order and is not a ''case decided''. The Learned Counsel for the Petitioner contended that an order of a subordinate court refusing to change the onus falls within the expression of ''case decided'' and as such revision u/s 115 is maintainable and he placed reliance for this on Sadhu Ram Bali Ram and Anr. v. Ghansham Dass Madan Lal and Ors. AIR 1975 P&H 174, This is a Full Bench authority. In that case a reference had been made by a learned single Judge of that Court to a larger Bench on the point, whether a revision lies to the High Court against an order of a Subordinate Court refusing to change the onus of an issue in view of an earlier decision by a Division Bench of that Court in L. Union Fire, Accident and General Insurance Co. Ltd. New Delhi v. Shri O.P. Kapur AIR 1963 Pun 397 in which a contrary view was taken to the effect that the placing of the onus of an issue on one party or the other in the course of a suit by a Subordinate Court is not a matter on which the High Court is entitled to interfere in revision u/s 115 of the Code and that the ordinary method to be adopted by a party for contesting an order passed in the course of a suit, which that party considers to be wrong, but against which no appeal lies, is to challenge it in an appeal filed after the suit, in which the order has been passed, is decided. The Full Bench over-ruled the earlier view taken by the Division Bench in L. Union Fire Accident and General Insurance Co. Ltd. New Delhi (supra) and held:

''An order of a Subordinate Court refusing to change the onus of an issue falls within the words "case decided".''

Therefore, in view of this it would be apparent that an order, refusing to recast and to change the onus of an issue, is a ''case decided'' for the purposes of Section 115 of the Code and as such the revision is maintainable. The Learned Counsel or the Respondents, however, did not argue this point at the time of hearing. Therefore, this objection taken at the time of admission is decided against the Respondents.

The Learned Counsel for the Petitioner submits that the court has not framed proper issues. Issue No. 1 necessitated recasting as also the change of onus keeping in view the averments made in the plaint. The Defendant was recorded as a tenant in the jamabandi, i.e. the revenue papers and presumption of correctness attaches to the revenue entries and, therefore, it was not for the Defendant to prove that he was a tenant of the land; it was for the Plaintiffs to prove that the revenue entries were incorrect showing the Defendant as a tenant. According to the Learned Counsel for the Respondents there is no dispute between the parties that the Defendant is recorded as a tenant. But the Plaintiffs do not admit the correctness of this fact and, therefore, the issues have been properly framed and the onus rightly placed. The Defendant accepted the onus and he had led part of evidence and, therefore, he cannot now be permitted to say that the onus is not properly fixed or that the issues be recast. But, it may be stated that leading of evidence by the Defendant does not mean that he has accepted the onus. Under Rule 5 of Order 14 of the Code the court may at any time before passing a decree amend the issues or frame additional issues. Therefore, it is wrong to say that once the Defendant had led a part of evidence he cannot be permitted to make an application for recast of the issues and to change the onus thereof. In my opinion, this contention does not appear to be correct. The revenue excerpts show the Defendant as a tenant and it is the Plaintiffs who have come to the court to challenge the correctness of the entries made in the revenue papers, to which presumption of correctness attaches u/s 45 of the Himachal Pradesh Land Revenue Act. It is for the Plaintiffs, therefore, to prove that the revenue entries showing the Defendant in possession as a tenant are wrong. There can be no doubt that the issues arise from the pleadings of the parties. This is one of the assertions of the Plaintiff that the Defendant got the entries of tenancy made in his favour in collusion with the consolidation staff and that he constructed the house over that in the year 1971. This assertion is denied by the Defendant. According to him, he is in possession since 1937 and the house also exists on that land since then. He denies that he got the entries made in collusion with the consolidation staff. According to his pleadings he is a tenant on the land. Therefore, if the Plaintiffs want to succeed it is for them to prove that the revenue entries showing the Defendant as a tenant are incorrect.

The Learned Counsel for the Respondents has also on the strength of (Dewan) Emdad Ali Vs. Haran Sheikh and Others, argued that the litigant should no be allowed to take inconsistent and diametrically opposite positions in the course of the same litigation. The Defendant has in the first place pleaded that he is a tenant of the land and secondly that his possession is adverse, inasmuch as he is there in possession ever since 1937, i.e. over 12 years and, therefore, that way also his possession has ripened into title, but from the replication, I find that the Plaintiffs have not taken up this plea that the Defendant cannot be permitted to take inconsistent plea. However, it is for the trial court to consider whether the Defendant should be permitted to take inconsistent plea. Presently, this Court is only concerned as to how the issue No. 1 should be recast and whether the onus thereof should be changed. The Learned Counsel for the Respondents has invited my attention to the pleadings. In para 2 of the plaint the Plaintiffs have clearly stated that the land mentioned in para 1 is owned and was possessed by the Plaintiffs and that the Defendant had taken unlawful and forcible possession by construction of a house on the land. So that clearly goes to show that the Plaintiffs say that the Defendant is a trespasser and it is for the Plaintiffs in order to succeed that they must prove what they assert. The Learned Counsel also contends that the Defendant has not pleaded any consent on the part of the Plaintiffs for the creation of the tenancy, that is true. If no consent is pleaded then it is for the Plaintiffs to prove that the Defendant is a trespasser. Once the Plaintiffs succeed in proving that no consent was obtained then it is for the Defendant to rebut that he is a tenant and as such the revenue entries showing him as the tenant are correct.

The Learned Counsel for the Respondents has also contended that the plea of tenancy has not been specifically taken. What the Defendant has pleaded is that the Court has got no jurisdiction. But, the Learned Counsel loses sight of the fact that the Defendant has specifically mentioned in para 4 of the preliminary objections in the written statement that there is a relationship of landlord and tenant between the parties. No doubt, this plea is taken to oust the jurisdiction of the court, but at the same time it cannot be said that there is no assertion on the part of the Defendant that he is a tenant of the land. This clearly follows by implication and for this matter no specific pleading was necessary when he has stated in so many words that there exists a relationship of landlord and tenant between the parties and on that account the court has no jurisdiction to entertain the suit. In my opinion, the Sub-Judge has acted with serious illegality and material irregularity in the exercise of jurisdiction vested in him by refusing to recast the issue which became necessary because of the specific plea of the Plaintiffs and denial of the Defendant with regard to the correctness of the revenue entries. The revision petition is, therefore, allowed and the court below is directed to recast the issue and place the onus of issue No. 1 on the Plaintiffs.