Rajasthan High Court - Jodhpur

Lrs Of Late Ram Singh vs Roop Singh on 4 November, 2023

Bench: Rekha Borana

[2023:RJ-JD:33184]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 155/2023

1. Lrs Of Late Ram Singh, Late Ram Singh Through His Lrs.

1/1. Smt. Kusum Kanwar W/o Late Shri Ram Singh, Aged About 45 Years, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur. 1/2. Jaya D/o Late Shri Ram Singh, Aged About 22 Years, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur. 1/3. Mamta D/o Late Shri Ram Singh, Aged About 20 Years, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur. 1/4. Sawai Singh S/o Late Shri Ram Singh, Aged About 18 Years, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur. 1/5. Yuvraj Singh S/o Late Shri Ram Singh, Aged About 15 Years, Minor Through His Natural Guardian Mother Smt. Kusum Kanwar, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur.

----Appellants Versus Roop Singh S/o Shri Khet Singh, By Caste Rajput, Resident Of Jay Ambe Colony, Chirghar, Behind T.b. Hospital, Jodhpur.

                                                                   ----Respondent


For Appellant(s)           :    Mr. Rameshwar Hedau
For Respondent(s)          :    Mr. C.S. Kotwani assisted by
                                Mr. Aman Bishnoi



            HON'BLE MS. JUSTICE REKHA BORANA

                                 Judgment

04/11/2023

1. The present second appeal has been preferred against the

judgment and decree dated 28.08.2023 passed by the

[2023:RJ-JD:33184] (2 of 11) [CSA-155/2023]

Additional District Judge No.5, Jodhpur Metropolitan in Civil

Appeal No.22/18 whereby the judgment and decree dated

02.05.2018 passed by the Additional Civil Judge No.9, Jodhpur

Metropolitan in Civil Suit No.02/16 (NCV No.13291/2014) has

been affirmed.

Vide judgment and decree dated 02.05.2018, learned Trial

Court proceeded on to decree the suit as preferred by the

plaintiff for permanent and mandatory injunction.

2. It is relevant to note at this stage itself that, a counter

claim was also filed by the defendant in the said suit qua which

issue No.9 was framed. Although issue No.9 has been decided

against the defendant, the operative portion of the judgment

and decree dated 02.05.2018 does not make any mention of

allowing or rejection of the counter claim. The first Appellate

Court proceeded on to affirm the judgment and decree of the

learned Trial Court but it too did not make any mention about

the allowing or dismissal of the counter claim of the defendant.

3. Learned counsel for the appellant raised three grounds

before this Court, firstly, the patta/lease in question on basis

of which the plaintiff claimed his ownership was obtained by

fraud and hence, the said document was void ab initio. It has

been submitted that no decree could have been passed on

basis of a fraudulent document and further that, even if no

ground/counter claim for declaration of the said document to

be void was raised/made, the same being void ab initio, could

not have been relied upon by both the Courts below. In support

of his submission, counsel relied upon the judgment passed in

the case of Prem Singh & Ors. vs. Birbal & Ors., (2006) 5

[2023:RJ-JD:33184] (3 of 11) [CSA-155/2023]

SCC 353. Secondly, the learned Trial Court committed a

serious illegality in not complying with the provisions of Order

13 Rule 4, CPC. The documents as exhibited do not bear the

signature of the Presiding Officer which is a mandate in terms

of provisions of Order 13 Rule 4, CPC. Hence, because of the

said illegality, the documents as exhibited could not have been

read in evidence. Thirdly, as the impugned judgment and

decree does not reflect anything about the result of the counter

claim as preferred by the defendant, the same is a nullity and

deserves to be set aside on this count alone.

4. Per contra, in response to the arguments raised by

learned counsel for the appellant, learned counsel for the

respondent submitted as under:-

i) It was nowhere the case of the appellant that the

document i.e. patta/lease in question was a forged document.

The only averment raised by the plaintiff was that the said

patta has been obtained dehors the law and hence, is invalid.

The ground that the patta is forged has been raised for the first

time before this Court and hence, cannot be entertained.

Further, the plea regarding a document being invalid does

not ipso facto make the same forged and hence, cannot be said

to be void until and unless the same is proved to be so.

ii) The averment of the plaintiff that the patta was

obtained by fraud cannot also be considered in absence of

impleadment of the authority issuing the said patta.

iii) Once the plaintiff raise a plea of adverse possession,

he is estopped from challenging the title of the defendant. It

was the specific averment of the plaintiff himself that he is in

[2023:RJ-JD:33184] (4 of 11) [CSA-155/2023]

possession of the property in question since last more than 12

years and hence, prayed for a decree in his favour on the basis

of adverse possession. Since the said plea has been raised, it

would be presumed that he has admitted the title of the

defendant and hence, cannot be permitted to question the

same.

iv) So far as the ground of non-compliance of provision

of Order 13 Rule 4, CPC and no order regarding the counter

claim of the defendant having been made is concerned, both

the grounds were not even raised by the appellant before the

first Appellate Court. Even before this Court, the ground of the

counter claim having not been decided has not been raised.

Therefore, the same cannot be permitted to be raised at the

stage of second appeal.

v) Even if the ground of non-compliance of Order 13

Rule 4, CPC is to be considered, the same cannot be termed to

be anything more than a mere irregularity and in terms of

Section 99, CPC, the decree cannot be set aside just because of

an irregularity.

vi) So far as the non mentioning of the rejection of the

counter claim in the judgment is concerned, the same also can

be termed to be a mere omission as issue No.9 framed qua the

counter claim was specifically decided against the defendant.

The non mentioning of the same in the operative portion of the

judgment is a mere omission. A decree cannot be set aside

only because of an omission.

In support of his contentions, counsel relied upon the

Hon'ble Supreme Court judgments in Manti Devi & Anr. vs.

[2023:RJ-JD:33184] (5 of 11) [CSA-155/2023]

Kishnu Sah alias Kishnuk Deo Sao & Ors., (2018) 12 SCC

page 500 and Kiran Singh & Ors. vs. Chaman Paswan &

Ors., AIR 1954 page 340; Hon'ble Delhi High Court judgment

passed in Sudhir Engineering Company vs. Nitco

Roadways Ltd. 1995 SCC Online Del 251: (1995) 34 DRJ

86.

5. In rejoinder, learned counsel for the appellant submitted

that non compliance of Order 13 Rule 4, CPC is not a mere

irregularity and but it is an illegality and the illegality, if found,

can be set aside by the Court at any stage.

6. Heard learned counsel for the parties and perused the

material available on record.

7. So far as the first ground raised by learned counsel for

the appellant regarding the document being void ab intitio is

concerned, the counter claim as filed by the defendant reads as

under:-

&%dkm.Vj Dyse%&

"1- fd oknxzLr tk;nkn ftldk uki] iM+kSl fooj.k okni= ds in la[;k&2 esa fn;k x;k gS] ds Hkw&Hkkx dk iV~Vk la[;k&7@1999 fnukad 23&08&2002 oknh us fcuk dCtk ds ljdkjh ukSdjh esa jgrs gq, ljdkjh Hkwfe ij rFkkdfFkr dCtk crkdj ;w-vkbZ-Vh-tks/kiwj ds deZpkfj;ksa ls feykoV dj vkoaVu@vf/kdkj i= izkIr fd;k gS] tks xSj dkuwuh gSA 2- fd dkm.Vj Dyse ds fy;s fcuk; nkok okn dk uksfVl izfroknh dks izkIr gksus ij ceqdke tks/kiqj iSnk gqvk ftldh ekfy;r cxtZ dksVZ Qhl ,oa vf/kdkj {kS= okLrs dkm.Vj Dyse fu;eu vkoaVu@vf/kdkj i= iV~Vk la[;k&7@1999 fnukad 23&08&2002 dh dher :i;s 2]578@& ij dk;e dh tkrh gS ftlij dksVZQhl okLrs fujLr djus fu;eu vkoaVu@vf/kdkj i= iV~Vk gsrq :i;s 171@& ds is"k gSA

[2023:RJ-JD:33184] (6 of 11) [CSA-155/2023]

vr% tckcnkok] fo"ks'k mtj ,oa dkm.Vj Dyse is"k dj fuosnu gS fd oknh dk okn e; [kpkZ [kkfjt Qjekosa ,oa oknh ds i{k esa tkjh fu;eu vkoaVu@vf/kdkj i= la[;k&7@1999 fnukad 23&08&2002 fujLr Qjekosa ,oa vU; lgk;rk tks izfroknh ds i{k gks ikfjr QjekosaA izfroknh

rLnhd%&

eSa] jkeflag iq= Jh [ksrflag th] tkfr&jktiwr] mez 40 o'kZ] fuoklh&IyksV la[;k&07] t;vacs dkWyksuh] phj?kj Vh-ch- vLirky ds ihNs] tks/kiqj izfroknh] ceqdke tks/kiqj l"kiFkiwoZd rLnhd djrk gwa fd tokcnkok] fo"ks'k mtj o dkm.Vj Dyse esa of.kZr reke rF; esjs futh Kku o tkudkjh ds vuqlkj lgh o lR; gSA blds i"pkr~ esjs dkm.Vj Dyse dh izkFkZuk gS] ftldks eSa lgh gksuk lR;kfir djrk gwaA

rLnhddRkkZ"

8. A bare perusal of the above averments as made, makes it

clear that the ground of the defendant before the learned Trial

Court was that the plaintiff has obtained the patta in question

by misrepresentation and collusion with the officers of UIT in

spite of he a Government servant and not entitled to the said

allotment and hence, the same is invalid. The pleadings further

clarify that it was not the ground of the defendant that the

patta in question is void or forged. The only averment of the

defendant was that it has been obtained by misrepresentation

and in connivance with the officers of the UIT which is invalid.

9. It is the settled position of law that a party averring any

document to be invalid is under an obligation/burden to prove

the same. As concluded by the Courts below, the plaintiff

miserably failed to prove the same. The Courts below observed

that even if any fraud is alleged to have been committed, the

[2023:RJ-JD:33184] (7 of 11) [CSA-155/2023]

same could only be against the authority/UIT issuing the same.

Admittedly, UIT was not impleaded a party to the present suit

by the plaintiff and neither was any application moved by the

defendant for its impleadment qua his counter claim. In

absence of the said authority, no finding qua the document

could have been given and hence, the issue was concurrently

decided against the defendant and rightly so. This Court does

not find any illegality or perversity in the said finding so as to

interfere with the same.

10. The argument raised by learned counsel for the appellant

that the fraud was committed not only against the department

but also against the defendant who was in possession of the

property and was tried to be evicted of the same on the basis

of the said fraudulent document, does not hold much water.

Firstly, there was no counter claim of the defendant for

declaration in his favour or for a decree on basis of adverse

possession. Secondly, even if the counter claim of the

defendant would have been decreed and the patta of the

plaintiff would have been cancelled, the same, cannot, ipso

facto grant/create any right in favour of the defendant.

This Court is of the clear opinion that the finding qua

issue No.9 as arrived by both the Courts below is totally in

consonance with law.

11. So far as non-mentioning of the allowing/rejection of the

counter claim in the operative portion of the judgment is

concerned, a reading of the impugned judgment dated

02.05.2018 makes it clear that qua the counter claim of the

[2023:RJ-JD:33184] (8 of 11) [CSA-155/2023]

defendant issue No.9 was very well framed which reads as

under :-

"rudh la[;k&09 vk;k izfroknh dkmUVj Dyse ds :i esa oknh }kjk izkIr fd;s x;s fu;eu vkoaVu@vf/kdkj i= iV~Vk la- 7@1999 fnukad 23-08-2002 dks fujLr djus dk vf/kdkjh gS\"

The said issue has very well been discussed and decided

by the Court as under:-

"pwafd iV~Vk vfLrRo esa gS] mls u ekus tkus dk dksbZ dkj.k ugha gS] ,slh fLFkfr esa mijksDr rudh izfroknh vius i{k esa lkfcr djus esa vlQy jgk] fygktk ;g rudh izfroknh ds fo:) r; dh tkrh gSA "

12. Meaning thereby, the issue qua the counter claim of the

defendant was framed and decided against the defendant after

reaching to a specific finding on the same. True it is that the

fact of the rejection of the counter claim of the defendant does

not find any mention in the operative portion of the judgment.

But then, it is also true that no ground qua the same was ever

raised by the appellant before the first Appellate Court. Rather

the specific pleadings of the appellant before the first Appellate

Court were that the appeal is preferred against the decree

passed in favour of the plaintiff and the rejection of the counter

claim of the defendant. Meaning thereby, the appellant

defendant accepted the factum of issue No.9 having been

decided against him and his counter claim having been

rejected. Interestingly, no ground qua the same has been

raised even in the present second appeal.

13. In the opinion of this Court, after an overall reading of the

impugned judgment, the only conclusion which can be arrived

[2023:RJ-JD:33184] (9 of 11) [CSA-155/2023]

at would be that the counter claim of the defendant had been

rejected. The non-mentioning of the same in the impugned

judgment can be termed to be nothing more than an omission.

Had the same been pointed out before the first Appellate Court,

the same would have been taken care of by the first Appellate

Court. But as the same had not been pointed out/raised before

the first Appellate Court, the same was not cured.

14. The third ground as raised regarding the non-compliance

of order 13 Rule 4, CPC does not also hold much water. The

same was a mere irregularity as admittedly, the documents

were exhibited and no objection regarding the documents being

marked as exhibits was raised by the defendant at that point of

time. Evidence has been led on those documents and after

considering the same, the learned Trial Court reached to the

findings.

Further, the omission or irregularity, even if any, was on

the part of the Presiding Officer. The said irregularity/omission

on the part of the Presiding Officer would even otherwise not

have changed/affected the decision on the issues as arrived by

the Court. It is the settled proposition of law that any

irregularity in any proceedings in a suit, not affecting the

merits of the case, cannot be a reason to reverse or vary the

decree or to remand the matter.

Section 99 of the Code of Civil Procedure provides as

under:-

"No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder 1[or non-joinder] of parties or causes of action or any error, defect or irregularity in any

[2023:RJ-JD:33184] (10 of 11) [CSA-155/2023]

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."

15. In the case of Lachhmi Narain Singh (D) through

L.Rs. & Ors. vs. Sarjug Singh (Dead) through L.Rs. &

Ors., [AIR 2021 SC 3873], Hon'ble Apex Court, while

considering a similar situation held that had such objection

been made at the relevant point of time, the District Judge who

tried the case in the first instance, would probably have seen

that the deficiency was supplied.

In the specific opinion of this Court, the omission of not

putting the initials on the exhibits by the Presiding Officer can

be termed only to be an irregularity which would not in any

manner affect the merits of the case. The documents having

been exhibited in terms of law is not disputed.

16. In the case of Kiran Singh & Ors. Vs Chaman Paswan

& Ors., AIR 1954 page 340, Hon'ble Apex Court held as

under:-

"With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed byi an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Section 21 and 99, C.P.C. and Section 11 of the Suits Valuation Act is the same namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not upon to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court,

[2023:RJ-JD:33184] (11 of 11) [CSA-155/2023]

Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act."

17. In view of the specific provision of Section 99, CPC and in

view of the ratio as laid down by the Hon'ble Apex Court in the

case of Kiran Singh (supra), this Court is of the specific

opinion that the present matter having been tried by both the

Courts below on merits and having been decided after giving

findings on all the issues, the same cannot be interfered with at

the stage of second appeal on the basis of a mere irregularity

which even otherwise does not affect the merits of the matter

in any manner.

18. In view of the above ratio as laid down by Hon'ble Apex

Court and in view of the above observations, this Court does

not find any ground to interfere with the findings as arrived by

the Courts below. The impugned judgments and decrees dated

28.08.2023 & 02.05.2018 whereby the suit of the plaintiff has

been decreed and the counter claim of the defendant has been

rejected, are hereby affirmed.