Himachal Pradesh High Court
Sh. Vijay Prakash(Since Deceased) ... vs Sh. Vidya Nand & Others on 13 December, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 62 of 2004 Date of Decision:13.12.2016 .
__________________________________________________________ Sh. Vijay Prakash(since deceased) through his LRs:-
Sh.Vinay Kumar and others ..... Appellant.
Versus Sh. Vidya Nand & others. ... Respondents.
of Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 rt For the Appellants : Mr.Bhupinder Gupta, Senior Advocate, with Mr. Neeraj Gupta, Advocate.
For the Respondents: Mr. G.D.Verma, Senior Advocate, with Mr. B.C.Verma, Advocate.
Sandeep Sharma, Judge Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 11.11.2003, passed by learned District Judge, Solan, District Solan, H.P., in Civil Appeal No.21-
S/13 of 2003, affirming the judgment and decree dated 31.3.2003, passed by learned Sub Judge, Kandaghat, District Solan, H.P. in Civil Suit No.177-K/1 of 1995, whereby suit for permanent prohibitory injunction filed by the plaintiff was dismissed.
Whether reporters of the local papers may be allowed to see the judgment?
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2. Briefly stated facts, as emerged from the record are that appellant (hereinafter referred to as the plaintiff) filed .
suit for permanent prohibitory injunction for restraining the respondents (hereinafter referred to as the defendants) from interfering in the land comprised in khata/ khatauni No.13/12/45, khasra No.172/139/1, measuring 9-2 bighas, situated in village Gaura, Tehsil Kandaghat, District Solan, H.P of (hereinafter referred to as the Suit land). Plaintiff averred in the plaint that one Ram Saran was a tenant over khasra rt No.172/139, land measuring 10-3 bighas. Since, Ram Saran was an old man, plaintiff used to assist him in the cultivation of the land. As per plaintiff, he was in cultivating possession of this land even during the life time of aforesaid Ram Saran.
Plaintiff further averred that proprietary rights qua the suit land were conferred upon Ram Saran vide mutation dated 6.6.1984, as a result of which, he became absolute owner of the property of the suit land. Plaintiff further averred that on 10.6.1984 aforesaid Ram Saran executed an agreement to sell the said land in favour of the plaintiff for a total sale consideration of `30,000/-. Plaintiff further claimed that out of aforesaid amount, `25000/- was paid at the time of execution of agreement, whereas remaining amount was to be paid at the time of registration of the sale deed. Plaint further suggests that sale deed could not be executed before expiry of 10 years ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...3...
after conferment of proprietary rights due to statutory bar and it could only be executed after 10 years from the date of .
execution of proprietary rights i.e.6.6.1994. But before expiry of aforesaid statutory period, Ram Saran died on 11.10.1993, as a result of which, deed could not be executed. Plaint further disclose that aforesaid Ram Saran, who died issueless on 11.10.1993, executed Will qua his moveable and immoveable of property excluding the suit property in favour of the defendants, who despite exclusion of suit land got entire land rt mutated in their favour on the basis of Will having been executed by aforesaid Ram Saran. Plaintiff further alleged that taking undue advantage of the entries, defendants trying to dispossess him and as such, he was compelled to file suit.
3. Defendants by way of filing written statement refuted the aforesaid contention having been made by the plaintiff in the plaint. Defendants claimed that deceased Ram Saran was owner in possession of the suit land but he never executed any writing in favour of the plaintiff. Defendants further claimed that at no point of time plaintiff was assisting the said Ram Saran in cultivation of land and there is no possession of him over the suit land as claimed by him.
Defendants also contended that agreement having been relied upon by the plaintiff is void and forbidden by law and as such, ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...4...
same cannot be looked into. In the aforesaid background, defendants sought dismissal of the suit filed by the plaintiff.
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4. By way of replication, plaintiff though denied the case of the defendants in toto but reasserted the claim put forth in the plaint.
5. On the pleadings of the parties, the learned trial Court framed the following issues:-
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1. Whether the plaintiff is in possession of the suit land, as alleged? OPP.
2. If issue No.1 is proved, then whether the plaintiff is rt entitled to a relief for permanent prohibitory injunction, as prayed for? OPP.
3. Whether the suit is barred by limitation? OPD.
4. Whether the plaintiff is estopped from filing the present suit, as alleged? OPD.
5. Whether the suit is not maintainable? OPD.
6. Relief:-
6. The learned trial Court on the basis of the pleadings as well as evidence adduced on record by the respective parties, dismissed the suit filed by the plaintiff on 31.3.2003.
7. Feeling aggrieved and dissatisfied with the impugned judgment dated 31.3.2003, passed by learned trial Court, appellants/plaintiffs filed an appeal under Section 96 of CPC in the Court of learned District Judge, Solan H.P, which came to be registered as Civil Appeal 21-S/13 of 2003, however fact remains that learned District Judge, vide impugned judgment and decree dated 11.11.2003, dismissed the appeal preferred on behalf of the plaintiffs/appellants and upheld the ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...5...
judgment and decree passed by learned trial Court. In the aforesaid background, the present appellants-plaintiffs .
approached this Court by way of Regular Second Appeal, praying therein for quashing and setting aside the impugned judgment passed by both the Courts below.
8. This Regular Second Appeal was admitted on the following substantial questions of law:-
of "(1) Whether both the Courts below have misconstrued and misread the document Ex.DW4/A, the will executed in favour of the rt defendants by the deceased Sh. Ram Saran, to come to the conclusion that the suit land is also the subject matter of the Will, when a bare perusal of the same shows that the suit land was not included under the Will?.
(2). Whether the Lower Appellate Court has acted with material illegality and irregularity in rejecting the application filed under Order 6 Rule 17 read with Order 1 Rule 10 of the Code of Civil Procedure by the plaintiff-
appellant?"
9. Mr. Bhupinder Gupta, learned Senior Advocate, duly assisted by Mr. Neeraj Gupta, Advocate, representing the appellants, vehemently argued that the judgment passed by both the Courts below are highly unjust, illegal, arbitrary and against facts and law and as such are liable to be set-aside. Mr. Gupta, while referring to the judgment passed by both the Courts below, contended that both the Courts below have acted with material illegality and irregularity in dismissing the suit of the plaintiff-appellant despite there being sufficient material adduced on record by the plaintiff to prove the factum of his ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...6...
possession over the suit land. Mr. Gupta, further contended that bare perusal of the evidence adduced on record by the .
plaintiff, clearly suggests that both the Courts below have failed to consider the same in its right perspective and as such, great prejudice has been caused to the plaintiff, who successfully proved on record that Ram Saran during his life time had executed an agreement Ex.PW1/A, agreeing therein of to sell the suit land in favour of the plaintiff-appellant. While referring to the agreement Ex.PW1/A, Mr. Gupta, strenuously rt argued that perusal of the same clearly suggests that Ram Saran duly acknowledged the possession of the plaintiff-
appellant over the suit land and as such, findings returned by both the Courts below that the plaintiff was not able to prove his possession over the suit land is contrary to the facts available on record and as such, judgment and decree passed by both the Courts below deserve to be quashed and set-aside.
10. Mr. Gupta, further contended that both the Courts below have failed to appreciate the rights of the plaintiff, which were infringed by the defendants/respondents on the basis of Will Ex.DW4/A, executed by deceased Ram Saran in favour of the defendants-respondents, the plaintiff in order to protect his possession over the suit land brought the suit for injunction against the defendants. He further contended that both the Courts below misconstrued and misread the Will Ex.DW4/A, ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...7...
while arriving at a conclusion that by way of Will, Ram Saran bequeathed his entire property in favour of the defendants .
because bare perusal of Will Ex.DW4/A clearly suggests that suit land was excluded by the testator Ram Saran in the Will Ex.DW4/A. He further argued that learned Courts below have miserably failed to appreciate the case put forth on behalf of the appellants-plaintiff because Section 113 of the H.P. of Tenancy and Land Reforms Act(hereinafter referred to as the 'Act') could not be made applicable to the facts of the case rt since the land to which proprietary rights were acquired by Ram Saran, was not sold on the basis of the agreement Ex.PW1/A, rather same was to be executed after expiry of statutory period of 10 years, as enshrined under Section 113 of the Act. Mr. Gupta, further contended that provisions of the aforesaid Act did not prohibit the execution of document Ex.PW1/A. While concluding his arguments, Mr. Gupta, forcibly contended that Courts below applied different yardstick while upholding the validity of Will Ex.DW4/A and discarding the agreement Ex.PW1/A placed on record by the plaintiff. Mr. Gupta, further contended that once Court had come to the conclusion that no agreement, if any, could be entered by Ram Saran with the plaintiff before expiry of 10 years of acquisition of proprietary rights in terms of Section 113 of the Act, principle was equally applicable while ascertaining the ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...8...
genuineness of the claim of the defendant, which was based upon the Will Ex.DW4/A. .
11. Mr. Gupta, contended that the bar contained in Section 113 of the Act is/was equally applicable to both the documents adduced on record by the respective parties i.e. agreement Ex.PW1/A as well as Will Ex.DW4/A. While referring to the order, Mr. Gupta, further contended that learned First of Appellate Court has fallen in grave error while dismissing the application filed by the appellants-plaintiffs under Order 6 Rule rt 17 read with Order 1 Rule 10 CPC for the impleadment of Munni Devi widow of late Sh. Ram Saran, who was necessary party and as such, judgment and decree passed by both the Courts below deserve to be quashed and set-aside being bad in the eyes of law.
12. Mr. G.D.Verma, Senior Advocate, duly assisted by Mr. B.C.Verma, Advocate, representing the defendants, supported the judgment and decree passed by both the Courts below. Mr. Verma, while referring to the judgment passed by both the Courts below, vehemently argued that same are based upon the correct appreciation of the evidence available on record, especially in view of the concurrent findings of facts and law recorded by both the Courts below. With a view to refute the contentions having been raised by learned counsel for the plaintiff, Mr. Verma, contended that suit filed by the ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...9...
plaintiff was not itself maintainable because wife of Ram Saran was not arrayed as party, who was admittedly necessary party .
in the present case. Mr. Verma, further argued that application for impleadment having been filed by the plaintiff at belated stage was rightly rejected by the Courts below because the defect in the suit could not be allowed to be cured at the Appellate Stage.
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13. Mr. Verma, further contended that both the Courts below have rightly came to the conclusion that no agreement rt could be executed by Ram Saran with the plaintiff before expiry of 10 years from the date of acquisition of proprietary rights as it would have in the violation of Section 113 of the Act. Mr. Verma, also invited the attention of this Court to the Will Ex.DW4/A to demonstrate that entire property including suit land was bequeathed in favour of the defendants by testator Ram Saran and as such, there is no illegality and infirmity in the judgments passed by both the Courts below, which are based upon the correct appreciation of the evidence available on record. While concluding his arguments, Mr. Verma reminded this Court of its limited jurisdiction to re-appreciate the evidence, especially when both the Courts below have dealt with each and every aspect of the matter very meticulously and have returned concurrent findings on the facts as well as law. To substantiate the aforesaid plea, Mr. Verma, placed ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...10...
reliance upon the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others Vs. Ranganath and Others, (2015)4 .
SCC 264.
14. I have heard learned counsel for the parties and have gone through the record of the case.
15. In nutshell, case set up by the plaintiff is that one Sh. Ram Saran son of Sh. Haria Ram was a tenant over the suit of land and he (plaintiff) used to help him in cultivation. Since proprietary rights were conferred upon aforesaid Ram Saran rt under the aforesaid Act, he had become absolute owner on the basis of mutation No.224, dated 6.6.1984. Plaintiff further claimed that since he was helping aforesaid Ram Saran in cultivating the land, suit land remained under his possession and thereafter on the basis of agreement Ex.PW1/A, dated 10.6.1984, Ram Saran agreed to sell the suit land to the plaintiff for consideration of `30,000/- and he in furtherance of aforesaid agreement had paid `25,000/- to Ram Saran, whereas balance amount was to be paid at the time of registration of the sale deed. But since land could be not sold for 10 years after acquisition of proprietary rights, agreement remained unexecuted.
16. Perusal of Section 113 of the Act, clearly suggests that no land in respect of which proprietary rights are conferred on the tenant can be further sold/ transferred /gifted ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...11...
or otherwise during a period of ten years from the date tenant acquires proprietary rights. It would be profitable to reproduce .
Section 113 of the Act herein:-
" 113. Bar of transfer of ownership rights:- no land in respect of which proprietary rights have been acquired under this Chapter shall be transferred by sale, mortgage, gift or otherwise during a period of ten years by a person from the date he acquires proprietary rights.
Provided that nothing contained in sub-section (1) of shall apply to the transfer of land made for a productive purpose with the prior permission of the State Government in a prescribed manner. Provided further that nothing in this sub-section rt shall apply to the land mortgaged with the Co-
operative Societies established under the Himachal Pradesh Co-operative Societies Act, 1968,(3 of 1969), or with a {Bank}.
(2).Any transfer of land made in contravention of sub-section (1) shall be void and no registering authority shall register any document evidencing such transfer under the Indian Registration Act, 1908."
17. Perusal of aforesaid provisions contained under Section 113 of the Act, clearly suggests that the land qua which Ram Saran had acquired proprietary rights on 6.6.1984 could not be further sold/transferred by sale, mortgage, gift or otherwise for a period of 10 years, meaning thereby agreement Ex.PW1/A, dated 10.6.1984 executed by Ram Saran, agreeing therein to effect the sale of the suit land in favour of the plaintiff was in violation of aforesaid provisions of law. Section 113 of the Act, as reproduced hereinabove, clearly suggests that person in whose favour proprietary rights are conferred is/was not entitled to transfer of land either by ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...12...
sale, mortgage, gift or otherwise, which includes agreement also for a period of 10 years. Hence, this Court sees no .
illegality and infirmity in the findings returned by both the Courts below that agreement, if any, executed by Ram Saran in favour of the plaintiff before expiry of 10 years from the date of conferment of proprietary rights is void and could not be given effect.
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18. With a view to explore answer to the aforesaid substantial questions of law, this Court specifically perused the rt Will Ex.DW4/A to ascertain the genuineness and correctness of the claim of the plaintiff that by way of Will, testator Ram Saran had not bequeathed the suit land in favour of the defendants. Before examining the aforesaid Will Ex.DW4/A, it may be noticed that by way of present suit plaintiff has admitted the execution of aforesaid Will in favour of defendants, but plaintiff has stated that since Ram Saran expired issueless, he during his life time made Will of suit land except village Gaura(suit land) i.e. in favour of the defendants but defendants in connivance with the Revenue Officials also got mutation of that land sanctioned in their favour. Aforesaid averment contained in the plaint clearly suggests that plaintiff, nowhere laid challenge, if any, to Ex.DW4/A, set up by the defendants to refute the claim of the plaintiff. Once, plaintiff himself admitted execution of aforesaid Will, it is not ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...13...
understood that how plaintiff can claim that by way of aforesaid Will testator Ram Saran had not bequeathed .
property of village Gaura i.e. suit land in favour of the defendants.
19. True, it is that initial lines of Will Ex.DW4/A suggests that testator intended to bequeath his moveable and immoveable property situated at village Hukul, Kanori, of Bhager, Jethna, Pargna Chial, Tehsil Kandaghat and admittedly there is no mention, if any, with regard to property situated at rt village Gaura i.e. suit land. It also emerged from the Will Ex.DW4/A that testator Ram Saran was issueless and defendants namely Nand Swaroop, Vidya Nand and Inder Singh were his nephews. But, if Will in question is read in its entirety, it clearly speaks and provides that after the death of testator Ram Saran, aforesaid defendants shall become owners of the suit land in equal share. Further perusal of Will suggests that testator Ram Saran while bequeathing his entire property in favour of defendants, as mentioned above, specifically excluded certain land bearing khasra No.33, measuring 2-0 bighas, khasra No.36, measuring 1-19 bighas and khasra Nos.199/33, measuring 0-6 bighas situated at village Hukul, Tehsil Kandaghat, District Solan, HP and bequeathed the same in favour of his nephew namely Babu Ram. While bequeathing aforesaid property in favour of Babu ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...14...
Ram, testator Ram Saran specifically got recorded in the Will that apart from aforesaid land situated at village Hukul, .
defendants have exclusive rights over other properties.
20. Careful perusal of Will in its entirety leaves no doubt in the mind of the Court that very intention of testator was to bequeath his entire moveable and immoveable property situated at various villages including suit land at of Gaura. Once, testator specifically had got recorded in the Will that after his death defendants would be owner in equal share rt qua all of his properties in the villages mentioned in the Will or in India, it cannot be said that land situated at village Garua was not intended to be included in the Will Ex.DW4/A. Moreover, as has been noticed above, there is no challenge, if any, with regard to execution of Will, admittedly executed by Ram Saran in favour of defendants and as such, this Court sees no illegality and infirmity in the findings returned by both the Courts below.
21. Plaintiff filed suit for permanent prohibitory injunction, as noticed above, in the year, 1995 and it is not disputed that suit was finally decided on 31.3.2003 i.e. after eight years of institution and during that period plaintiff never moved an application under Order 6 Rule 17 read with Order 1 Rule 10 CPC, seeking therein amendment of the plaint as well as impleadment of Smt.Munni Devi widow of Late Sh.Ram ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...15...
Saran as party respondent. It is only at appellate stage, plaintiff moved an application under Order 6 Rule 17 CPC read .
with Order 1 Rule 10 CPC seeking amendment as well as impleadment of Smt. Munni Devi. This Court, after carefully examining the application moved under Order 6 Rule 17 read with Order 1 Rule 10 CPC, sees no illegality and infirmity in the order dated 17.7.2003, passed by learned First Appellate Court of rejecting the aforesaid application because admittedly there is no explanation for not moving the application during the rt pendency of the trial before the learned trial Court. Similarly, this Court was unable to lay its hand to any averment suggestive of the fact that plaintiff was unable to move an application for amendment and impleadment despite due diligence, rather facts and circumstances as have been carefully perused by this Court, clearly suggests that plaintiff was fully aware that Munni Devi wife of Ram Saran is necessary party to the proceedings, especially in view of his claim put forth in the plaint. Originally, plaintiff filed suit for permanent prohibitory injunction against the defendants restraining them from interfering in the suit land by stating that suit land was not included in the Will Ex.DW4/Aby testator Ram Saran and the defendants in connivance with the revenue officials wrongly got the land mutated in their names. There is no mention, if any, with regard to Munni Devi wife of Ram ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...16...
Saran in the original suit filed for permanent prohibitory injunction by the plaintiff. By way of amendment plaintiff .
sought to change title of the suit alongwith other paragraphs, which also included reliefs, by proposing to file suit under Section 19 of the Specific Relief Act, for specific performance of the contract executed on 10.6.1984 between the plaintiff and the deceased Sh. Ram Saran with regard to the suit land, of as described hereinabove.
22. Plaintiff further sought to amend para-5 of the rt plaint by adding para 5-A. Plaintiff claimed that Smt. Munni Devi widow of said Ram Saran, who is legally entitled to inherit his property and thus she is legally bound to get the sale deed registered in favour of the plaintiff. The plaintiff further claimed that he has already performed his part of the agreement by paying more than 80% part of the total sale consideration on 10.6.1984 and is ready and willing to make payment of balance amount of consideration to Smt. Munni Devi widow of Ram Saran, who is legally authorized to transfer the suit land in his favour. In the aforesaid background, plaintiff sought amendment of plaint, whereby he made an attempt to change the very nature of the suit, which was originally field for permanent prohibitory injunction against the defendants by arraying Munni Devi as party defendant in the proceedings. Learned First Appellate Court vide order dated ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...17...
17.3.2003 negatived the claim having been put forth in the application filed by the plaintiff and this Court sees no illegality .
and infirmity in the aforesaid orders passed by the learned First Appellate Court.
23. True, it is that amendments are generally allowed but definitely it can be refused, if same results in prejudice and injury to other side. Similarly, amendment, if any, cannot be of allowed to use as a tool to defeat the legitimate right already accrued in the favour of the other party. Normally, no rt application for amendment can be allowed after commencement of trial save and except party seeking amendment succeeds in satisfying the Court that fact proposed to be brought on record by amendment could not be pleaded in original proceedings despite due diligence.
Similarly, it is well settled that question of delay, if any, in moving an application for amendment cannot be decided merely by calculating the time from the date of institution of the suit but while deciding the application, stage of the case is also material to decide the application. As has been discussed above, pre-trial amendments are allowed liberally but same principle cannot be made applicable after commencement of the trial or even after conclusion. In the instant case, as has been noticed above, that suit remained pending in the trial court for more than 8 years and at that stage no attempt was ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...18...
made by the plaintiff to move an application for amendment or impleadment of Munni Devi as party.
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24. In the instant case, originally suit was filed for permanent prohibitory injunction against the defendants on the ground that Ram Saran had executed agreement to sell Ex.PW1/A agreeing therein to sell the suit land in his favour and in this regard he had also made part payment of `25,000/-
of and remaining was to be paid at the time of registration after 10 years. Plaintiff also in his plaint admitted will Ex.DW4/A by rt stating that suit land is excluded by the testator in the Will.
Since, agreement to sell Ex.PW1/A was sought to be enforced against the defendants, who were admittedly not the class one legal heirs of deceased Ram Saran, it is not understood that what prevented plaintiff to implead Munni Devi, who was admittedly wife of Ram Saran as party defendant at first instance. Since, plaintiff claimed that he had been cultivating the land of Ram Saran even before conferment of proprietary rights, it is not understood how he failed to implead Munni Devi as party defendant in the suit, whereby he had sought relief of permanent prohibitory injunction restraining the defendants from interfering in the suit land. Moreover, as has been discussed above, by way of proposed amendment, plaintiff sought to change very nature of suit by virtually seeking relief under Section 19 of the Specific Relief Act, for ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...19...
Specific performance of the contract, which was admittedly not the original claim set up by the plaintiff while filing the suit for .
permanent prohibitory injunction simplicitor against the defendants. After perusing the proposed amendments as sought by the plaintiff, this Court sees no illegality and infirmity in the findings returned by the first appellate Court while rejecting the application that by way of application of appellant seeks to displace the earlier proceedings by giving new dimension to the suit, which otherwise is time barred.
25. rtIt is well settled by now that inconsistent or contradictory allegations in negation of the admitted position of facts or mutually destructive allegations of facts are also impermissible by way of amendment. As has been noticed above, relief as claimed by way of amendment was also barred by limitation and as such, rightly rejected by learned first appellate Court. In view of the detailed discussion made hereinabove, this Court sees no illegality and infirmity in the order dated 17.7.2003, passed by the learned first appellate Court, whereby application under Order 6 Rule 17 read with Order 1 Rule 10 CPC was dismissed. The substantial questions of law are answered accordingly.
26. This Court also examined the specific submission having been made by Mr. Bhupinder Gupta, learned Senior Advocate, representing the plaintiff that Courts below have ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...20...
failed to apply same yardstick while concluding that the agreement to sell Ex.PW1/A, allegedly executed by late Sh.
.
Ram Saran, agreeing therein to sell the suit land in favour of the plaintiff was in violation of Section 113 of the Act because Ram Saran was not competent to execute any agreement before expiry of 10 years from the date of conferment of proprietary rights in his favour. As per Mr. Gupta, Courts below of ought to have applied similar principle while examining the correctness of Will Ex.DW4/A ,admittedly executed by late Sh.
rt Ram Saran in favour of the defendant before expiry period of 10 years from the date of acquisition of proprietary rights. If, aforesaid argument having been made by Mr. Gupta, is accepted, in that eventuality, suit land after the death of late Sh. Ram Saran was to devolve upon his widow Smt. Munni Devi, who was not impleaded as party defendant in the present case.
27. It is also admitted case of the parties that the defendants are nephews of late Sh. Ram Saran and as such, they could only stake their claim qua the suit land by way of inheritance, if any, after the death of late Smt. Munni Devi widow of Ram Saran. In the instant case, defendant namely Inder Singh filed an affidavit in terms of order passed by this Court on 11.11.2016, stating therein that Smt. Munni Devi widow of late Sh. Ram Saran has expired on 16.2.2004 and she ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...21...
has been succeeded upon her death by respondents S/Shri. Nand Swaoop, Vidya Nand and Inder Singh vide mutation .
No.230, dated 28.4.2004. In view of above, if submission having been made by Mr. Gupta, is accepted, even in that eventuality, suit land after the death of Smt. Munni Devi was to devolve upon the defendants, as named above.
28. This Court sees no irregularity and infirmity, if any, of in the judgments passed by both the Courts below, rather same are based upon correct appreciation of the evidence available on record.
rt This Court is fully satisfied that both the Courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever, in the present matter. Since, both the Courts below have returned concurrent findings, which otherwise appear to be based upon proper appreciation of evidence, this Court has very limited jurisdiction/scope to interfere in the matter. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, herein below:-
"16. Based on oral and documentary evidence, both the Courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the ::: Downloaded on - 15/04/2017 21:44:01 :::HCHP ...22...
High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has .
earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be of perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the Courts below, are based on oral and rt documentary evidence and the judgment of the High Court cannot be sustained."
29. Consequently, in view of the detailed discussion made hereinabove, present appeal fails and same is dismissed.
Interim directions, if any, are vacated. All miscellaneous applications are disposed of.
(Sandeep Sharma )
December 13, 2016 Judge
(shankar)
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