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Saturday, July 2, 2016

Order 27 of the Code deals with the suits which are filed by the Government or against the Government. Rule 5B of Order 27 casts a duty on the Court in a suit filed against the Government to assist the parties to the suit in arriving at a settlement. Rule 5B of Order 27 reads as under:= Order 27 Rule 5B “5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a settlement- (1) In every suit or proceeding to which the Government, or a public officer acting in his official capacity, is a party, it shall be the duty of the Court to make, in the first instance, every endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit. If, in any such suit or proceeding, at any stage, it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.= It is clear from the record that no such endeavour was made by the Court or by the parties to arrive at a settlement keeping in view the mandate of Order 27 Rule 5B quoted above. In our view, it should have been done and only on failure being reported, the case should have been finally decided on merits in accordance with law. We now request the High Court to decide the second appeal in accordance with law finally on merits keeping in view the aforesaid observations and, if possible, preferably within six months.


                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2516 OF 2008


      Haryana State & Anr.                         Appellant(s)


                             VERSUS


      Gram Panchayat Village Kalehri         Respondent(s)


                       J U D G M E N T



Abhay Manohar Sapre, J.

1)    This appeal is filed  against  the  final  judgment  and  order  dated
18.11.2005 of the High Court of Punjab and Haryana at Chandigarh  in  R.S.A.
No. 4083 of 2005 whereby the High Court dismissed the appeal  filed  by  the
appellants herein against the  order  dated  24.08.2005  of  the  Additional
District Judge, Karnal  in  Civil  Appeal  No.  30  of  2005  affirming  the
judgment/decree dated 11.06.2002 of the Civil Judge (Jr.  Division),  Karnal
in Civil Suit No. 226 of 2001.

2)    In order to appreciate the issues involved in the  appeal,  which  lie
in a narrow compass, few facts need mention infra.
3)    The appellant-the State of Haryana is the defendant.  The  respondent-
Gram Panchayat of  village  Kalehri is the plaintiff.
4)    The dispute in the suit relates to the land  measuring  36  kanals  15
Marlas comprised in Khewat No. 361 min/350m, Khatoni No. 536 min, Khasra  No
59 Gair Mumkin Nala situated in village Kalehri, Tahsil Gharaunda,  District
Karnal (hereinafter referred to as “the suit land").
5)    The respondent filed a  suit  bearing  Civil  Suit  No.  226  of  2001
against the appellants in the Court of Civil Judge (Jr.  Division),  Karnal.
The suit was for a declaration that they are the owner of the suit land  and
that the appellant (State) have no right, title and  interest  in  the  suit
land.  The  respondent  also  claimed  prohibitory  injunction  against  the
appellants restraining the  State  authorities  from  interfering  in  their
peaceful possession over the suit land. The respondent based their claim  of
ownership on several documents which, according to them, exclusively  proved
their superior title over every one including the State.
6)     The  appellants  filed  their  written  statement  and   denied   the
respondent's claim of the ownership.  The  appellants  then  asserted  their
ownership rights over the suit land to the  exclusion  of  every  one.   The
dispute thus essentially centered around to the ownership of the  suit  land
as to who is the owner of  the  suit  land,  viz.,  the  appellants  or  the
respondent.
7)    The Trial Court, on  the  basis  of  pleadings,  framed  issues.  Both
parties adduced oral and documentary evidence to prove their title over  the
suit land.
8)     The Trial Court by judgment/decree dated 11.06.2002 decreed the  suit
in favour of the plaintiff.  On appreciating the  evidence  adduced  by  the
parties, it was held that the respondent (plaintiff) is  the  owner  of  the
suit land.  Accordingly, injunction, as claimed by  the  respondent  against
the appellants, was also granted.
9)    The appellants, felt aggrieved, filed first appeal being Civil  Appeal
No. 30 of 2005 before the Additional  District  Judge,  Karnal.   The  first
appellate Court vide judgment dated  24.08.2005  dismissed  the  appeal  and
affirmed the judgment/decree of the Trial Court.
10)   The appellants, felt aggrieved, filed second appeal being  R.S.A.  No.
4083 of 2005 in the High Court.  The  learned  Single  Judge   of  the  High
Court, by impugned judgment/order,  dismissed the second  appeal  in  limine
holding that the appeal does not involve any substantial question of law  as
required  under  Section  100  of  the  Code  of   Civil   Procedure,   1908
(hereinafter referred to as “the Code”). Felt  aggrieved,  the  State  filed
this appeal by way of special leave before this Court.
11)   Heard  Mr. Samar Vijay Singh,  learned  counsel  for  the  appellants.
Though served, none appeared for the respondent.
12)   Having heard the learned counsel for the appellants and on perusal  of
the record of the case, we are inclined to allow the appeal and  remand  the
case to the High Court for deciding  the  second  appeal  afresh  on  merits
after hearing both the parties.
13)   Learned Single Judge while dismissing the appeal held as under:
“After hearing learned counsel, I am of the considered view  that  there  is
no question of law which would require determination  by  this  Court  under
Section 100 of the Code.  The aforementioned findings are pure  findings  of
fact, which are based on ample evidence.  Therefore, there is  no  merit  in
the appeal.  Dismissed.”

14)   In our considered  view,  the  appeal  does  involve  the  substantial
questions of law and, therefore, the High Court  should  have  admitted  the
appeal by framing substantial questions of law arising in the case and  then
after giving notice to the respondent for  its  final  hearing  as  provided
under Section 100 of the Code should have  decided  the  appeal  finally  on
merits.
15)   As a matter of fact, having regard to the nature  of  controversy  and
keeping in view the issues involved, such as the issue  regarding  ownership
rights coupled with the issue regarding proper interpretation  of  documents
(exhibits) to prove the ownership rights over the suit land, we are  of  the
view that these issues do constitute substantial  questions  of  law,  viz.,
whether the  Courts  below  were  justified  in  properly  interpreting  the
documents/exhibits relied upon by the parties for determining the  ownership
rights over the suit land? In other words, we are of  the  view  that  where
the Court is required to properly interpret the nature of the documents,  it
does not involve any issue of fact as such but it only involves legal  issue
based on admitted documents.  It is, therefore,  obligatory  upon  the  High
Court to decide the legality and correctness of such findings  as  to  which
party’s documents are to be preferred for conferring  title  over  the  suit
land. In this case, the High Court could  do  so  only  when  it  had  first
admitted the appeal and framed substantial  questions  of  law  as  required
under Section 100 of the Code.
16)    The High Court thus, in  our  view,  committed  jurisdictional  error
when it dismissed  the  appeal  in  limine  saying  that  it  only  involves
question of fact.   We cannot countenance the approach of  the  High  Court.
The impugned order, therefore, is liable to be set aside.
17)   In view of foregoing discussion, the appeal succeeds and  is  allowed.
The impugned order is set aside. The case is now remanded to the High  Court
for deciding the appeal on merits in accordance with law.
18)   We request the High  Court  to  admit  the  second  appeal  and  frame
appropriate substantial questions of law as are required to be framed  under
Section 100 of the Code, keeping in view the documents  (exhibits)  and  the
findings recorded by the courts  below  on  the  question  of  ownership  in
relation to the suit land.  Needless to  say  the  questions  to  be  framed
should be specific with relevance to exhibit  and  errors  in  the  findings
recorded by the two courts below so that they can be  properly  answered  on
their merits.
19)   Before parting, we consider it proper to mention here that we are  not
expressing any opinion on the merits of the  controversy  but  confined  our
inquiry only to examine whether the second appeal involved  any  substantial
question of law within the meaning of Section 100  of  the  Code.  Since  we
have held that the appeal does involve the substantial questions of law  and
hence we have requested the High Court to  formally  admit  the  appeal  and
frame substantial questions of law and then answer them  finally  on  merits
in accordance with the law.
20)   There is one more aspect of this case which we  have  noticed  and  we
consider it apposite to mention here.  As is clear, this is a case filed  by
a statutory public body against the Government and it is in relation to  the
ownership rights on a piece of land which both are  asserting  against  each
other.
21)   Order 27 of the Code deals with the  suits  which  are  filed  by  the
Government or against the Government.  Rule 5B of Order 27 casts a  duty  on
the Court in a suit filed against the Government to assist  the  parties  to
the suit in arriving at a settlement.  Rule 5B of Order 27 reads as under:
                              Order 27 Rule 5B
“5B. Duty of Court in suits against the Government or a  public  officer  to
assist in arriving at a settlement-

(1)   In every suit or proceeding to  which  the  Government,  or  a  public
officer acting in his official capacity, is a party, it shall  be  the  duty
of the Court to make, in the first instance, every endeavour,  where  it  is
possible to do so consistently with the  nature  and  circumstances  of  the
case, to assist the parties in arriving at a settlement in  respect  of  the
subject-matter of the suit.

If, in any such suit or proceeding, at any stage, it appears  to  the  Court
that there is a reasonable possibility of a settlement between the  parties,
the Court may adjourn the proceeding for such period as it  thinks  fit,  to
enable attempts to be made to effect such a settlement.

The power conferred under sub-rule(2) is in addition to any other  power  of
the Court to adjourn proceedings.”

22)   It is clear from the record that no such endeavour  was  made  by  the
Court or by the parties to arrive  at  a  settlement  keeping  in  view  the
mandate of Order 27 Rule 5B quoted above.  In our view, it should have  been
done and only on failure being reported, the case should have  been  finally
decided on merits in accordance with law.
23)   We now  request  the  High  Court  to  decide  the  second  appeal  in
accordance with  law  finally  on  merits  keeping  in  view  the  aforesaid
observations and, if possible, preferably within six months.
24)   Since  none  appeared  for  the  respondent  in  this  appeal  despite
service, we request the High Court to issue notice  to  the  respondent  for
final hearing the second appeal before it is heard finally.
25)   Record of the case, if requisitioned, be sent back to the  High  Court
forthwith by the registry.


.……...................................J.
                                     [ABHAY MANOHAR SAPRE]

                     ………..................................J.
                                      [ASHOK BHUSHAN]
      New Delhi,
      June 29, 2016.
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