Ruhmatii And Ors vs Lachhi on 24 September, 2019

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Himachal Pradesh High Court

Ruhmatii And Ors vs Lachhi on 24 September, 2019

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 147/2016 Reserved on: 18.9.2019 Decided on: 24.9.2019 .

    Ruhmatii and ors.                                                         ...Appellants





                                        Versus

    Lachhi                                                                 ....Respondent



    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting ?1 No For the appellants: Mr. Tara Singh Chauhan, Advocate.

For the respondent: Mr. Bhag Chand Sharma, Advocate.

Tarlok Singh Chauhan, Judge The defendants are the appellants, who aggrieved by the judgment and decree, dated 23.2.2016, passed by the learned first appellate court, whereby it reversed the judgment and decree, dated 25.8.2015 passed by the learned trial court, have filed the instant appeal.

The parties shall be referred to as the "plaintiff"

and "defendants".

Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 26/09/2019 20:30:56 :::HCHP 2 2 The brief facts of the case are that the plaintiff filed a suit against the defendants alleging therein that she .

was owner in possession of the land comprised in Khata Khatauni No. 127/173, Khasra Nos.1294/843, 1298/1215/1097 measuring 050000 Bighas, situated in Mouja Dori Pargna Tissa, Tehsil Churah, District Chamba.

She had no male issue, however she had two daughters and both of them were married. One of them, i.e. defendant No.1 started living with her, who used to help her in managing her household affairs as well as the suit land and developed confidence upon the plaintiff. She was taken to Tehsil Office, Churah, where some documents were prepared with the help of document writer and her thumb impressions were obtained on the same misrepresenting that those documents were required to apply for the grant of widow pension and other financial assistance. On such pretext, defendant No.1 had got executed the said documents before Sub Registrar in connivance with witnesses and revenue staff without reading and explaining the contents thereof. Defendant No.1 in connivance with revenue officials also got attested mutation No. 564 on 6.9.2008 in her favour behind the back of the plaintiff and on the basis of wrong, illegal and void gift deed ::: Downloaded on - 26/09/2019 20:30:56 :::HCHP 3 and mutation, defendant No.1 was trying to cause nuisance and take forcible possession of the suit land. Hence, the .

plaintiff sought a decree for declaration declaring the gift deed dated 7.6.2008 to be null and void. The plaintiff also prayed for permanent prohibitory injunction restraining the defendants from interfering, causing nuisance and taking forcible possession of the suit land. In case defendant No.1 succeeded in getting forcible possession during the pendency of the suit, then decree for possession of the suit land was also sought for.

3 The suit was resisted and contested by the defendants by filing written statement, wherein preliminary objections regarding maintainability, cause of action, estoppel and locus standi were raised. On merits, it was averred that the plaintiff had no right, title or interest in the suit land as she had executed a valid gift deed in favour of defendant No.1 with her own sweet will and possession of the suit land was delivered to her at the time of gift. It was denied that defendant No.1 had obtained the gift deed by playing fraud and misrepresentation. According to the defendants, the gift deed was duly read over and explained by the document writer and by Sub Registrar at the time of its ::: Downloaded on - 26/09/2019 20:30:56 :::HCHP 4 registration and valid mutation had been attested in accordance with law after due inquiry.

4 On the pleadings of the parties, the learned trial court on 10.12.2012 framed the following issues:

1. Whether the gift deed dated 7.6.2008 is a result of fraud, as alleged? OPP

2. Whether consequent mutation No. 564, dated 6.9.2008 on the basis of aforesaid gift deed dated 7.6.2008 is liable to be declared as null and void as alleged ? OPP

3. Whether the defendants are interfering, causing nuisance and trying to take forcible and illegal possession of the suit land as alleged? OPP

4. If aforesaid issue is answered in the affirmative, then whether the defendants are liable to be restrained through the permanent prohibitory injunction from causing interference over the suit land and from alienating the suit land as alleged? OPP

5. Whether the suit is not maintainable in the present form? OPD

6. Whether the plaintiff is estopped by her own act and conduct from filing the present suit? OPD

7. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD

8. Relief.

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5 After recording the evidence and evaluating the same, the learned trial court vide judgment and decree dated .

25.8.2015 dismissed the suit filed by the plaintiff, however in an appeal preferred by the plaintiff, the learned lower appellate court set aside the judgment and decree passed by the learned trial court and decreed the suit of the plaintiff vide judgment and decree, dated 23.2.2016, constraining the 6 to defendants to file the instant appeal.

On 28.7.2016, the instant appeal was admitted on the following substantial question of law:

Whether on account of misappreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recorded by court below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable?

7 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.

8 A perusal of the substantial question of law goes to show that the same verges around the question of perversity and, therefore, in order to determine the same one would have to appraise the evidence of the parties as the case set up by the parties has been spelt out hereinabove.

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9 In order to prove her case, the plaintiff stepped into the witness box as PW1 and tendered in evidence her .

affidavit, Ext.PW1/A, copy of jamabandi, Ext.PW1/B and copy of mutation, Ext.PW1/C. In the affidavit, she corroborated the contents of the plaint. She also examined Jai Singh as PW2, who also tendered in evidence his affidavit, Ext.PW2/A and deposed that possession of the suit land remained with the plaintiff and defendant No.1 never remained in possession of the suit land.

r He also corroborated the version of the plaintiff that the defendants were interfering in the possession of the plaintiff taking undue advantage of her old age and helplessness and got executed the gift deed by playing fraud and misrepresentation. Lastly, the plaintiff examined Tej Singh as PW3, who also tendered in evidence his affidavit, Ext.PW3/A and corroborated the version putforth by the plaintiff as PW1 and that of PW2.

10 As regards the defendants, they examined one Hakam Singh, MHC, Police Station Tissa as DW1, who proved on record FIR, Ext. DW1/A lodged by the plaintiff. The defendants also examined Paras Ram as DW2, who tendered in evidence his affidavit and deposed that the gift deed was ::: Downloaded on - 26/09/2019 20:30:56 :::HCHP 7 scribed by one Hem Lata Thakur, who had read over and explained its contents to the plaintiff and it was only .

thereafter that the plaintiff had put her thumb impressions on the same. DW2 further deposed that he along with one Dhani Ram had signed the gift deed as attesting witnesses and the plaintiff was identified before the Sub Registrar by Arun Kumar, UpPradhan, Gram Panchayat Bharada and signatures of the plaintiff and witnesses were obtained on the gift deed, Ext.DW2/B in the office of Sub Registrar.

Defendant No.1 appeared in the witness box as DW3 and tendered in evidence her affidavit, Ext.DW3/A and reiterated the contents of the written statement. The defendants also examined one Lachhi as DW4, who tendered in evidence her affidavit,Ext. DW4/A and deposed that out of services rendered by defendant No.1, the plaintiff had executed gift deed in her favour and thereafter, it was defendant No.1, who was coming in possession of the suit land. Lastly, defendants examined Sak Mohammad as DW5, who also tendered in evidence his affidavit, Ext.DW5/A and corroborated the version of DW4.

11 From narration of the facts and evidence led by the parties, it is clear that there was a fiduciary relationship ::: Downloaded on - 26/09/2019 20:30:56 :::HCHP 8 between them as defendant No.1 was the daughter and defendant No.2 was soninlaw of the donor i.e. plaintiff. It is .

also proved on record that the plaintiff was a rustic, illiterate and simpleton villager and apart from two daughters had no one to look after her. Defendant No.1 was residing in the same village after her marriage, where the plaintiff was also residing, whereas another daughter of the plaintiff was residing at a distant place.

to It was because of fiduciary relationship that donee (defendant No.1) was in a position to dominate the will of the donor and bring her to the office of the Sub Registrar.

12 Now the question is whether gift deed in question was in fact executed by the donor taking it to be a gift deed.

13 Admittedly, Hem Lata Thakur, who was alleged to be the scribe of the gift deed, has not been examined.

14 Adverting to the testimony of DW2 Paras Ram. He had no where stated that gift deed was read over and explained to the donor by the Sub Registrar at the time of registration. In fact, in his crossexamination, he stated that he could not say as to what was written in the gift deed. He also feigned ignorance regarding name of the village of another attesting witness, who according to the defendants, ::: Downloaded on - 26/09/2019 20:30:56 :::HCHP 9 was one Dhani Ram. Above all, so called Dhani Ram has also not been examined.

15 Notably, the mutation in this case has been attested on the basis of the alleged affidavit, executed by the plaintiff, which has not seen light of the day. However, what is more intriguing is that the mutation appears right thumb impression of the donor. Now, in case the plaintiff was present at the time of mutation, I really failed to understand then how the mutation was attested on the basis of socalled affidavit of the plaintiff.

16 Thus, it is a clear indicator that defendant No.1, who unfortunately is the daughter of the plaintiff, only wanted to grab the land of the plaintiff by hook or crook.

17 Another indicator in the direction is that socalled other witnesses in the gift deed are not the residents of the Gram Panchayat of the plaintiff. Above all, even Arjun Kumar, UpPradhan, Gram Panchayat Bharada, who identified the plaintiff before the Sub Registrar at the time of registration of gift deed, has not been examined constraining this court to draw an adverse inference against the defendants.

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18 In view of aforesaid discussion, no infirmity much less illegality can be said to have been committed by the .

learned first appellate court, whereby it reversed the judgment of the learned trial court and decreed the suit of the plaintiff.

Substantial question of law is answered accordingly.

For the forging reasons, I find no merit in this appeal and the same is accordingly dismissed leaving the parties to bear their own costs. Pending application(s), if any, also stands dismissed.




          24.9.2019                           (Tarlok Singh Chauhan)
         (pankaj)                                      Judge







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