Himachal Pradesh High Court
______________________________________________________________________ vs Smt. Rumalo Devi And Others on 7 September, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 242 of 2007 .
Reserved on: 02.09.2016 Date of Decision: 07.09.2016 ______________________________________________________________________ Raj Kumar .....Appellant.
Vs. Smt. Rumalo Devi and others .....Respondents.
of Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes.
rt For the appellant: Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate.
For the respondents: Mr. Dinesh Bhanot, Advocate.
Ajay Mohan Goel, Judge :
This appeal has been filed by the appellant/plaintiff against judgment and decree passed by the Court of learned Additional District Judge, Solan, Camp at Nalagarh in Civil Appeal No. 15-NL/13 of 2006 dated 08.03.2007 vide which, learned appellate Court while dismissing the appeal filed by the present appellant has upheld the judgment and decree passed by the Court of learned Civil Judge (Senior Division), Nalagarh, District Solan in Civil Suit No. 99/1 of 2002, whereby the suit for declaration and permanent prohibitory injunction filed by the present appellant against the respondents/defendants was dismissed.
Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 2
2. This appeal was admitted on 16.06.2007 on the following substantial questions of law:
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"1. Whether the findings as recorded by both the Courts below are contrary to the provisions of law inter alia for the reason that the appellant has establish on record that the property in suit is ancestral and coparcenary property and therefore by virtue of his birth in the family, he acquired ownership and he cannot be of divested thereof, merely on the basis of transaction of relinquishment by the defendant No. 1 in favour of defendant No. 2.
rt
2. Whether alienation of the property in suit by way of relinquishment by defendant No. 1 in favour of the defendant No. 2 in the absence of legal necessity is illegal, unauthorized and void, therefore, plaintiff is entitled to relief as claimed?"
3. Brief facts necessary for the adjudication of the present case are that appellant/plaintiff (hereinafter referred to as 'the plaintiff') filed a suit for declaration and permanent prohibitory injunction originally against his father and uncle, namely Gandu Ram and Sita Ram, respectively mentioning therein that the suit land situated in Mauja Malpur, Pargana Dharampur, Tehsil Nalagarh, District Solan, as per jamabandi for the year 19976-98, was joint and ancestral of the plaintiff and defendant No. 1. According to the plaintiff, pedigree table of plaintiff and defendants was as under:
::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 3"Sehaj Ram () Nanak () Surat Ram .
()
() () () () () () () ()
Gandu Shiv Sita Husan Lajja Hakam Agya Jagdish"
Ram Ram Ram Chand Ram Singh Ram Chand
4. According to the plaintiff, after the death of Sehaj Ram, his property including the suit land was succeeded by his son and after the of death of Nanak, the properties were inherited by Surat Ram etc. vide mutation dated 06.09.1985. Thereafter, after the death of Surat Ram, his rt share in the properties including the suit land were inherited by his eight sons, which included the defendants also. They inherited the same vide mutation No. 723 dated 18.03.1992. As per the plaintiff, he was son of defendant No. 1 and grandson of Surat Ram. According to him, it was apparent from the pedigree table and mutation that the suit land was ancestral qua the plaintiff and no partition had taken place as per law and the plaintiff had right in the ancestral property by birth. According to the plaintiff, he was a coparcener to the suit land and was possessing the suit land under the law by virtue of his birth in the family and he could not have been dispossessed from the suit land. It was further the case of the plaintiff that defendant No. 1 was having good source of income from crops etc. and suit land being ancestral could not have been transferred or sold without any necessity, however, defendant No. 1 without any right to transfer the suit land, had relinquished the same by way of transfer in favour of defendant No. 2 without legal necessity just to ::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 4 deprive the plaintiff of his legal right vide relinquishment deed dated 12.12.2001. According to the plaintiff, said relinquishment deed was wrong, illegal, null and void.
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5. It was on these basis that the suit was filed by the plaintiff praying for a decree of declaration to the effect that the suit land was ancestral and coparcenary property of the plaintiff and the plaintiff was coparcener and joint owner of the suit land and for decree of declaration of to the effect that relinquishment deed executed by defendant No. 1 in favour of defendant No. 2 dated 12.12.2001 and registered with Sub Registrar, Nalagarh and subsequent mutation No. 872 dated 26.12.2001 rt attested on the basis of said relinquishment deed was wrong, illegal, null and void being without legal necessity and not binding on the right, titled and interest of the plaintiff. Plaintiff also prayed for a decree of permanent prohibitory injunction for restraining the defendants from interfering in the suit land, ousting the plaintiff from the suit land or causing any kind of damage etc. on the suit land. Alternatively, plaintiff prayed that in case Court comes to the conclusion that defendant No. 2 was in possession on any portion of the suit land, then decree for joint possession be passed in favour of the plaintiff and in case defendant No. 2 was found in exclusive possession, then in that event, decree for possession be passed in favour of the plaintiff.
6. In the written statement filed to the suit by defendants No. 1 and 2, it was stated that plaintiff was residing at village Nanakpur in Tehsil Kalka in the State of Haryana and he had absolutely no concern ::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 5 with the actual possession of suit land and the same was with defendant No. 2. According to the defendants, plaintiff never resided in village Mallpur and the suit land was in possession of defendant No. 2, who was .
real younger brother of defendant No. 1. As per the defendants, plaintiff had filed the suit at the instance of persons inimical to the defendants just to harass them. According to defendants, defendant No. 1 was being looked after and served by the family of defendant No. 2 for the last 40 of years, who had spent huge amount on the treatment of defendant No. 1 when he was seriously injured in the attack by Mohan Lal and others. It was further the case of defendants that as defendant No. 1 was physically rt unable to undertake hard jobs of agricultural nature, it was defendant No. 2 and his family who were carrying on all the hard and laborious jobs of cultivating the suit land. As per the defendants, defendant No. 1 had executed a deed of relinquishment in favour of defendant No. 2 as plaintiff had never cared to visit defendant No. 1 for the last 40 years and had left defendant No. 1 at the mercy of God and had fully deserted him to settle at Village Nanakpur, Tehsil Kalka (Haryana). Further, in the written statement, it was denied by the defendants that the suit property was property of Sehaj Ram, Nanak and Surat Ram, who inherited the same by way of succession only. As per the defendants, defendant No. 1 had no one to look after him but for defendant No. 2 and his family.
Defendant No. 1 had executed relinquishment deed in favour of defendant No. 2 which was legal and valid and plaintiff had no right to question the validity of the same. It was also the case of the defendants that the suit ::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 6 land was in peaceful and uninterrupted possession of defendant No. 2, who was cultivating the same since 1982. It was denied by the defendants that the plaintiff was a coparcener and the suit land was a .
coparcenary property.
7. On the basis of pleadings of the parties, learned trial Court framed the following issues:
"1. Whether the suit land is ancestral property qua the plaintiff? OPP of
2. Whether the plaintiff is having share as alleged in para-1 of the plaint? OPP
3. Whether the relinquishment deed executed by rt defendant No. 1 in favour of defendant No. 1552 dated 12.12.2001 is bad for want of competence? OPP
4. Whether there exists custom prohibitory alienation except for legal necessity? OPP
5. Whether the suit of the plaintiff is not maintainable? OPD
6. Whether the plaintiff has not come to the Court with clean hands? OPD
7. Relief."
8. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed:
"Issue No. 1: No.
Issue No. 2: No.
Issue No. 3: No.
Issue No. 4: No.
Issue No. 5: No.
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7
Issue No. 6: No.
Relief: The suit of the plaintiff stands dismissed as
per operative portion of the judgment.
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9. Accordingly, learned trial Court vide its judgment and decree dated 21.04.2006 dismissed the suit filed by the plaintiff. It was held by learned trial Court that the onus to prove whether the suit land was ancestral property qua plaintiff or not was on the plaintiff and he had not of produced any documentary evidence worth its name from which it could be concluded that the said property was ancestral property. It was further held by learned trial Court that document Ex.-P8 merely reflected that rt after the death of proprietor of the property therein, who was joint owner alongwith others, the land was inherited by Surat Ram and Asa Ram, however, there was no documentary evidence on record to bring home the point that Nanak had inherited the suit property from Sehaj Ram and thereafter it passed through Surat Ram from whom the same was allegedly inherited by the father of the plaintiff and thereafter by the plaintiff. It was further held by learned trial Court that bare statement of plaintiff as PW-1 was not sufficient to establish the ancestral nature of the suit property. It was also held by learned trial Court that defendant Sita Ram had entered the witness box as DW-1 and he had stated that the suit property was exclusively owned by defendant No. 1, i.e. father of the plaintiff, who remained in possession of the suit property till it was relinquished in his favour vide relinquishment deed. Learned trial Court further held that this witness was subjected to cross-examination, but ::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 8 his testimony on material points could not be shattered. It was further held by learned trial Court that DW-2 Atma Ram had deposed about the execution of relinquishment deed by defendant No. 1 in favour of .
defendant No. 2 and DW-3 Pritam, who was Pradhan of Gram Panchayat, Manpur in the year 2000 also stated that defendant No. 2 was continuing in possession of the suit land and it was only defendant No. 1, who cultivated the same. It was further held by learned trial Court that as per of Jamabandis on record Ex. P-2 and Ex. P-4, the suit land was owned and possessed by defendant No. 1 and subsequently defendant No. 2 was owner in possession of the suit land. It further held that relinquishment rt deed Ex. D-1 stood duly proved on record, which was executed voluntarily by defendant No. 1 in favour of defendant No. 2 in lieu of services rendered by defendant No. 1 to defendant No. 2. On these basis, learned trial Court dismissed the suit of the plaintiff.
10. Feeling aggrieved by judgment and decree passed by learned trial Court, plaintiff filed an appeal. Learned appellate Court vide its judgment and decree dated 08.03.2007 upheld the findings returned by learned trial Court and dismissed the appeal so filed by plaintiff. Learned appellate Court also held that there was no evidence on record from which it could be deciphered that the suit property was ancestral qua the father of the plaintiff and the suit property was coparcenary in the hands of his father. It was further held by learned appellate Court that plaintiff had placed on record copy of Bandobast Doam Ex. P-4 to establish that suit land at one point of time was owned by Nanak, father of Surat Ram ::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 9 from whom the land was inherited by Gandu Ram, however, a perusal of Ex. P-4 demonstrated that the land mentioned therein was different from the suit land. It was further held by learned appellate Court that even .
copy of jamabandi for the year 1992-93 Ex. P-5 in which Gandu Ram was recorded as co-sharer in the suit land alongwith others in no manner proved that the suit land was ancestral or coparcenary in his hands. In fact it was held by learned appellate Court that the appellant therein had of relied upon copy of mutation Ex. P-7, vide which suit land was alleged to have been inherited by defendant No. 1 alongwith his brothers including defendant No. 2 from their father after his death. On the basis of said rt document, it was contended on behalf of the appellant before the first appellate Court that the said document proved that the suit land was inherited by defendant No. 1 alongwith his other brothers from their father. The findings which were returned on this aspect of the matter by learned appellate Court were that perusal of Ex. P-7 copy of mutation demonstrated that the description of land mentioned therein nowhere tallied with the suit land. It was further held by learned appellate Court that even if it was assumed that property came to Gandu Ram vide mutation Ex. P-7, even then it could not be said that the property was ancestral in nature because contents of Ex. P-7 revealed that the suit land had not devolved upon Gandu Ram and his brothers on the basis of succession, but Surat Ram had executed a Will in favour of Gandu Ram and his brothers and as such mutation was attested in favour of Gandu Ram, defendant No. 1 and his brothers on the basis of Will. It was further ::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 10 held by learned appellate Court that though it was the plea of the plaintiff that he was in possession of the suit land and accordingly, he had prayed that the defendants be restrained from interfering or ousting him from .
the suit land, however, nothing was placed on record by the plaintiff except his self serving statement to substantiate that he was in fact in possession of the suit land. There was no entry in his name in the pariwar register in village Malpur and in ration card and voter list of the of plaintiff village Nankpur was mentioned. It was also held by learned appellate Court that oral evidence adduced on behalf of the defendants corroborated the fact that plaintiff was not residing in village Malpur and rt he was not in possession of the suit land and defendant No. 2 was in fact in possession of the suit land and he also used to look after defendant No. 1 and the property of defendant No. 1 before the same was relinquished in favour of defendant No. 2. Accordingly, learned appellate Court also dismissed the appeal filed by the plaintiff.
11. Mr. G.D. Verma, learned Senior Counsel for the appellant argued that the findings returned by both the learned Courts below to the effect that the suit property was not coparcenary and ancestral were perverse as both the learned Courts below failed to appreciate that besides the factum of the appellant having produced material on record to demonstrate this fact, defendant No. 2 in his statement in the Court on oath had admitted that the suit property was ancestral. According to Mr. Verma, once the factum of the suit property being ancestral was admitted by defendant No. 2 as witness, there was no further need for the plaintiff ::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 11 to have had adduced any material to prove this fact. It was further argued by Mr. Verma that both learned Courts below failed to appreciate that the defendants had withheld the best evidence, i.e. defendant No. 1 who .
never entered the witness box. According to Mr. Verma, adverse inference in this regard ought to have been drawn against the defendants and this aspect of the matter had also been ignored by both the learned Courts below. Mr. Verma further argued that the findings returned by learned of Courts below to the effect that the suit property was not ancestral was not borne out from the material on record and accordingly, he argued that judgments and decrees passed by both the learned Courts below rt were not sustainable either on facts or on law.
12. Mr. Dinesh Bhanot, learned counsel for the respondent, on the other hand submitted that whether the suit land was ancestral or not stood decided against the plaintiff and in favour of the defendants by both the learned Courts below. He further submitted that it was also concurrently held by both the learned Court below that the relinquishment deed executed in favour of defendant No. 2 by defendant No. 1 was a legal and valid document. Accordingly, he submitted that keeping in view the fact that plaintiff had not produced any material on record to establish that either the suit land was ancestral or that the relinquishment deed executed by defendant No. 1 in favour of defendant No. 2 was not a valid relinquishment deed, the concurrent findings arrived at in favour of the defendants by both learned Courts below called ::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 12 for no interference in this appeal. He thus submitted that there was no merit in the present appeal and the same be dismissed with costs.
13. I have heard the learned counsel for the parties and have .
also gone through the records of the case as well as the judgments passed by both the learned Courts below.
14. The factum of the suit land being ancestral and the plaintiff having coparcenary rights over the same has been disbelieved by both the of learned Courts below. It has been concurrently held by both the learned Courts below that no evidence has been produced on record by the plaintiff to establish this fact that the suit land which was relinquished rt by the father of the plaintiff in favour of defendant No.2 was coparcenary and ancestral qua the plaintiff. It has also been held by both the learned Courts below that the documents on the basis of which it was emphasized on behalf of the plaintiff that the suit land was ancestral and coparcenary property did not further the case of the plaintiff as the particulars of the land mentioned in the said documents did not pertain to the suit land. In order to meet the said findings arrived at by both the learned Courts below, the contention of learned Senior Counsel for the appellant was that there was no need or requirement for the plaintiff to have had adduced any evidence in view of the fact that defendant No. 2 as DW-1 had admitted that suit land was ancestral in nature. I am afraid that the said contention on behalf of appellant is not sustainable in law.
It is a matter of record that no material has been adduced by the plaintiff from which it could be inferred that he suit land in fact was a ::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 13 coparcenary property and said land in fact was inherited by way of succession by his father from grandfather of the plaintiff. A perusal of the statement of DW-1 demonstrated that in his cross-examination, he .
has admitted that the suit property was earlier owned by Sehaj Ram and then by Nanak and thereafter by Surat Ram. However, it was neither put to the said witness nor he has said in his cross-examination that the property was inherited by Nanak and Surat Ram by way of natural of succession. Therefore, it cannot be inferred that the suit property had devolved upon them by way of natural succession. Besides this, in my considered view, the testimony of DW-1 has to be read harmoniously with rt the stand which has been taken by the defendant in the written statement as well as in the examination-in-chief of the said witness, which is by way of an affidavit in which the case as was put forth by the plaintiff has been clearly disputed and denied. Further, the factum of the father of plaintiff, i.e. Gandu Ram not having entered the witness box is also not going to be fatal for the simple reason that there were two defendants in the case and the relinquishment deed in issue under challenge in the suit was in favour of defendant No. 2, who has submitted this fact as DW-1. Therefore, the contention of the appellant to the effect that best evidence was withheld by the defendants and adverse inference should have been drawn against them is also without merit. During the course of arguments, learned counsel for the appellant could not draw the attention of this Court towards any document on record from which it could be inferred that the suit property was in fact ancestral and ::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 14 coparcenary qua the plaintiff and it could not have been relinquished by his father in favour of defendant No. 2. As far as the factum of execution of relinquishment deed by defendant No. 1 in favour of defendant No. 2 is .
concerned, it is a matter of record. Plaintiff has not adduced any evidence from which it could be inferred that the said relinquishment deed was not executed voluntarily by defendant No. 1 in favour of defendant No. 2 in lieu of services rendered by defendant No. 2 and his family to defendant of No. 1. On the other hand, evidence has been led by the defendants to demonstrate that the relinquishment deed was executed by defendant No. 1 in favour of defendant No. 2 because when on account of ill health, rt defendant No. 1 was not in a position to look after himself or his property, it was defendant No. 2 and his family who were looking after him as well as his land and after the execution of relinquishment deed, the property was in possession of defendant No. 2, who was cultivating the same. The argument of the appellant to the effect that both learned Courts below have failed to appreciate that there was no specific denial in the written statement of the fact that the suit land was ancestral and coparcenary qua the plaintiff is also without any merit. It is evident and apparent from the averments made in the written statement that it is mentioned in para-
2 of the preliminary objections that the suit land was not ancestral or joint Hindu family property and thereafter it was denied in para-3 of the written statement on merit that the property in issue was inherited by way of succession.
::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 1515. Order VIII Rule 5 of the Code of Civil Procedure provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the .
defendant, shall be taken to be admitted except as against a person under disability. It is settled position of law that if an allegation made in the plaint is not specifically denied in the written statement, then it is treated as admitted. This was held by the Hon'ble Supreme Court in of Balraj Taneja Vs. Sunil Madan (1999)8 SCC 396 and this legal position has again been reiterated by the Hon'ble Supreme Court in Standard Chartered Bank Vs. Andhra Bank Financial Services Limited and rt others (2016) 1 Supreme Court Cases 207.
16. In my considered view, in the present case, it can not be said that the allegations made in the plaint were not specifically denied in the written statement. The contention of the plaintiff that the suit land was ancestral has been denied in the written statement. The contention of the plaintiff that he was in possession of the suit land has been denied in the written statement. The contention of the plaintiff that the relinquishment deed was not valid in the eyes of law has been denied in the written statement. Therefore, it is not a case where the allegations made in the plaint were not specifically denied in the written statement.
17. Learned Senior Counsel for the appellant during the course of arguments has relied upon the following judgments in support of its case:
::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 16"1. Vinod Kumar Vs. Gangadhar (2015) 1 Supreme Court Cases 391.
2. Nicholas V. Menezes Vs. Joseph M. Menezes and others .
(2009) 4 Supreme Court Cases 791.
18. It has been held by the Hon'ble Supreme Court in Vinod Kumar Vs. Gangadhar (2015) 1 Supreme Court Cases 391 that while sitting as Court of first appeal, it is the duty of High Court to deal with all of issues and evidence led by parties before recording its findings.
19. It has been reiterated by the Hon'ble Supreme Court in rt Nicholas V. Menezes Vs. Joseph M. Menezes and others (2009) 4 Supreme Court Cases 791 that while deciding a first appeal, the High Court must consider the evidence on record, oral and documentary and also the questions of law raised before it and at the same time it is duty of the High Court to consider the reasons given by the trial Court against which the first appeal was filed and thereafter dispose of the same after passing a speaking and reasoned order in accordance with law.
20. In my considered view, the law declared by the Hon'ble Supreme Court in the above mentioned judgments is not applicable in the facts and circumstances of the present appeal.
21. Therefore, in view of the discussion held above, it cannot be said that the findings recorded by both learned Courts below are contrary to the provisions of law or the appellant had in fact established on record that the suit land was ancestral and coparcenary property and it could not have been divested by his father by way of a relinquishment deed.
::: Downloaded on - 15/04/2017 21:11:07 :::HCHP 17Similarly, keeping in view the fact that plaintiff has not been able to demonstrate that the suit land was coparcenary and ancestral property, it cannot be said that the alienation of the said property by way of a valid .
registered relinquishment deed in favour of defendant No. 2 by defendant No. 1 was not sustainable in law. Substantial questions of law are decided accordingly.
22. In view of the findings returned above, there is no merit in of the present appeal and the same is dismissed with costs.
(Ajay Mohan Goel)
rt Judge
September 07, 2016
(bhupender)
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