Satish Gupta vs State of Uttarakhand

Rajiv Sharma, J.—This petition is directed against the judgment and order dated 05.11.2016 rendered by learned Additional District Judge, Tehri Garhwal in Eviction Appeal No.03 of 2016 as well as judgment and order dated 29.11.2015 rendered by learned Prescribed Authority, Narendra Nagar, Tehri Garhwal in Eviction Case No.22 of 2012 under Section 4(1) of the Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as "the Public Premises Act").

The key facts necessary for adjudication to this petition are that Prescribed Authority, Narendra Nagar District Tehri Garhwal had issued a notice to the petitioner under Section 4 of the Public Premises Act stating therein that he had occupied the property i.e. Z.A. Khata No.8, Khasra No.864, measuring 0.024 hectares since 1990 unauthorisedly and he had also raised construction. Petitioner filed reply to the notice. Thereafter, learned Prescribed authority passed the eviction order against the petitioner on 29.11.2015 and he was ordered to pay Rs.20,000/- per annum towards damages from 1990. Petitioner preferred an Eviction Appeal No.02 of 2016 against the order dated 29.11.2015 passed by learned Prescribed Authority, before learned District Judge, Tehri Garhwal. Learned Additional District Judge, Tehri Garhwal has partly allowed the Eviction Appeal vide order dated 05.11.2016 and affirmed the order passed by learned Prescribed authority qua eviction but reduced the damages from Rs.20,000/- to Rs.600/- per annum. Hence, the present writ petition.

Notice was issued to the petitioner under Section 4 of the Public Premises Act strictly in accordance with law. The Revenue Sub Inspector also testified before the Prescribed authority. According to him, as per order of Sub Divisional Magistrate dated 28.02.2013, he has visited the spot on 30.03.2013. He has prepared the Map, Khasra, Khatoni and demarcated the land. He supported the challani report on the basis of which the proceedings were initiated against the petitioner. According to him, demarcation was carried out strictly as per law. Petitioner had appeared as witness before learned Prescribed Authority. He testified in his statement that a notarized agreement was executed by him with one Sri Purnanand Joshi S/o Vasvanad on 24.04.1998 with regard to land in question. He has also submitted photo copies relating to the Criminal Case No.461/1990.

The fact of the matter is that no entry has been made in the revenue record in the name of the petitioner showing his ownership or possession over the property in question. Petitioner has only placed on record the photocopies of the judgment passed in Criminal Case No.461 of 1990. In revenue record, the land has been shown in the ownership of the State Government. Petitioner has not led any evidence which could rebut the Map, Khatoni and demarcation carried out the Revenue Sub Inspector on the spot.

Their Lordships of Hon''ble Supreme Court in AIR 1955 SC 566 in the case of "Anil Behari Ghosh v. Smt. Latika Bala Dassi and others" have held that the judgment of the Criminal Court is relevant only to show that there was such a trial resulting in the conviction and sentence of the son to transportation for life. It is not evidence of the fact that the son was the murderer of testator. That question has to be decided on evidence. Their Lordships have held as under :-

"15. It was vehemently argued at all stages of the case including the appeal before us that admittedly no citation was issued against Girish Chandra Ghosh aforesaid and as he was the person most interested in the testator''s estate besides the legatees named in the will, the case came directly within the purview of clause (a) of the Explanation and Illustration (ii) quoted above. Girish Chandra Ghosh has been found by the Judge in the first instance to have been the person most vitally interested in the estate of the testator, whether he died intestate or leaving a will, in the events which had happened. The learned counsel for the contesting respondent suggested that it had not been found by the lower appellate court as a fact upon the evidence adduced in this case, that Girish was the nearest agnate of the testator or that Charu had murdered his adoptive father, though these matters had been assumed as facts. The courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the will is a valid and genuine will, there is intestacy in respect of the interest created in favour of Charu if he was the murderer of the testator. On this question the courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence. However, for purposes of this case we shall assume in favour of the appellant that Charu was the murderer. The result of such an assumption is that Girish being the nearest reversioner to the estate of the testator, in case of intestacy after the death of the testator''s widow in 1921; or in case of testamentary succession after the death of the two legatees, the testator''s daughter-in-law and the nephew''s wife aforesaid, and the failure of the legacy in favour of Charu on account of the murder would, in either event, have sufficient interest in the estate of the testator to entitle him to challenge the grant and to obtain revocation. But it is noteworthy that Girish who died in 1940, lived for about 19 years after the grant and took no steps in that direction. There may be some doubt as to Girish''s knowledge of the probate proceedings and of the grant until 1933; but, in our opinion, there is ample evidence in support of the finding arrived at by the court of appeal below that Girish was aware of the grant at the latest in 1933 when Debi Prosad Mitter took proceedings to obtain a grant in his own favour also. In his application, as indicated above, he clearly stated that Charu was the murderer of his adoptive father and that Girish would succeed to his estate, which otherwise would have gone to Charu. If Girish had initiated proceedings for revocation of the grant and had insisted on the will being proved in his presence, the courts would have had no difficulty in having all the necessary evidence before it because the chief person who had played the most leading part in the execution of the will, in its registration and in its being admitted to probate viz. Anil Nath Basu, was then alive and could have been examined. But for reasons not made clear in these proceedings Girish did not think it worth his while to take any steps in court to challenge the will or the grant. The estate was worth anything between five to forty lakhs, perhaps nearer five lakhs than forty lakhs. Girish was a mere pensioner belonging to a middle class family. Either he did not think it worth his while to embark on a litigation with all its uncertainties or he had not the wherewithal to do so. The record as it stands does not satisfactorily explain the reasons why Girish refrained from making any attempts to get this large estate. If the will was not genuine or valid, Girish would take the reversionary estate at once because the testator''s widow died in 1921 and there was no other impediment in his way, except to get rid of the will. If, on the other hand, the will was genuine and valid, even then he would stand to gain all the interest which had been bequeathed in favour of Charu. The fact that Girish did not take advantage of his position as the nearest reversioner as on partial intestacy goes a long way to support the great probability of the will being valid and genuine, especially as it had been probated and because the appellant in his long petition for revoking the grant has not made the least suggestion casting any doubt on the genuineness and validity of the will. But it was argued on behalf of the appellant that stage had not yet arrived and that it would be open to the appellant after obtaining an order of revocation of the grant to show that the will was either not genuine or had not been validly executed. Great reliance was placed in this connection on the judgment of a Division Bench of the Calcutta High Court in AIR 1915 Cal 421 A'', where the following observations have been made:

"No question of the genuineness of the will arises for consideration till the court has decided that the probate must be revoked on one or more of the grounds specified in Section 50 of the Probate and Administration Act. The only matter for consideration at this stage is, whether the appellants have made out a just cause for revocation of the probate which was granted without notice to them: Brindaban v. Sureshwar 10 Cal LJ 263 at p. 273 (B. The question of genuineness cannot be considered till a case for revocation is made out: Durgavati v. Sourabini, 33 Cal 1001 (C)".

The observations relied upon by the appellant were made with reference to the facts of that case and were not intended to be of universal application. As pointed out above, Section 263 of the Act also contemplates a case for revocation based on the single ground that the will in respect of which the grant in question was obtained was a forged one. In such a case, whether or not the will was a forged one would be the only question to be canvassed before the court before the order of revocation could be made."

Their Lordships of Hon''ble Supreme Court in (2009) 13 SCC 729 in the case of "Vishnu Dutt Sharma v. Daya Sapra(Smt)" have held that a judgment/findings given in a criminal proceedings will not be binding in a civil proceedings. Their Lordships have held as under :-

"23. It brings us to the question as to whether previous judgment of a criminal proceeding would be relevant in a suit. Section 40 of the Evidence Act reads as under:

"40. Previous judgments relevant to bar a second suit or trial. � The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial."

This principle would, therefore, be applicable, inter alia, if the suit is found to be barred by the principle of res judicata or by reason of the provisions of any other statute. It does not lay down that a judgment of the criminal court would be admissible in the civil court for its relevance is limited. (See Seth Ramdayal Jat v. Laxmi Prasad) The judgment of a criminal court in a civil proceeding will only have limited application viz. inter alia, for the purpose as to who was the accused and what was the result of the criminal proceedings. Any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding.

If judgment of a civil court is not binding on a criminal court, it is incomprehensible that a judgment of a criminal court will be binding on a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant in some other provisions of the Act, no other provisions of the Evidence Act or for that matter any other statute had been brought to our notice."

In AIR 1962 Rajasthan 127 in the case of "Onkarmal and another v. Banwarilal and others, AIR 1962 Raj 127", learned Single Judge has held that a judgment of acquittal in a criminal court is irrelevant in a civil suit based on the same cause of action, just as a judgment of conviction cannot, in a subsequent civil suit, be treated as evidence of facts on which the conviction is based. Their Lordships have held as under :-

"24. I now turn to the plaintiff''s cross-objection. The learned District Judge has held that beyond the return of the money which the plaintiffs paid to the defendants, namely, Rs. 700/-, the former were not entitled to get any damages, special or general. The main reason which seems to have prevailed with the learned District Judge was that the defendants had been acquitted in the criminal case of the charge of wrongful confinement among other charges for which they had been prosecuted. As the learned Judge has put it, the accused had been acquitted by a criminal court and, therefore, it must be held that they had not kept the plaintiff Banarsilal under illegal confinement and were innocent in this respect. To me, it clearly appears that, in taking this view, the learned District Judge fell into a grave error of law.

From what I have stated in the foregoing part of my judgment, I have no hesitation in saying that, left to himself, the learned Judge would have been well disposed to hold, on the material which he was prepared to accept as true, that the plaintiff Banarsilal had been detained under illegal custody by the Sub-Inspector Jagannathsingh at the instance of the defendants. In fact, this is the entire foundation of his judgment in so far as he decreed the return of the sum of Rs. 711/-by the defendants to the plaintiffs. And yet, when he came to deal with the question of damages awardable to the plaintiffs in the same connection over and above the return of the money, which had been actually paid by them to the defendants, he thought that he was bound by the finding of the criminal court. There is, however, abundant authority for the proposition that a judgment of acquittal in a criminal court is irrelevant in a civil suit based on the same cause of action, just as a judgment of conviction cannot, in a sub-sequent civil suit, be treated as evidence of facts on which the conviction is based. The correct position in law, therefore, is that the Civil Court must independently of the decision of the criminal court investigate facts and come to its own finding. Thus it was held in Venkatapathi v. Balappa, AIR 1933 Mad 429 that in a suit for damages for malicious prosecution, under Section 43 of the Evidence Act, the judgment of the criminal court can only be used to establish the fact that an acquittal has taken place as a fact in issue in the civil suit, but the civil court cannot take into consideration the grounds upon which that acquittal was based and it would be for the civil court itself to undertake an entirely independent inquiry before satisfying itself of the absence of reasonable and probable cause. Again, it was held in Ramadhar v. Janki, AIR 1958 Pat 49 that a judgment of a criminal court is admissible to prove only who the parties to the dispute were and what order was passed; but the facts stated therein or statements of the evidence of the witnesses examined in the case or the findings given by the court are not admissible at all and the civil court is bound to find the facts for itself. That this view is unchallengeably correct would appear from the judgment of their Lordships of the Supreme Court in Anil Behari v. Latika Bala Dassi, (S) AIR 1955 SC 566. I have, therefore, no hesitation in holding that the learned Judge was completely wrong when he thought that on the score mentioned above the plaintiffs were not entitled to recover any damages from the defendants for the unlawful detention of the plaintiff Banarsilal at the police outpost Jasrapur from the 31st May, 1952, to the morning of the 2nd June, 1952."

Accordingly, there is no merit in the petition and the same is hereby dismissed.