Himachal Pradesh High Court
(2) Jiva Nand vs (2) Nand Lal on 5 January, 2022
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 5th DAY OF JANUARY, 2022
BEFORE
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
.
REGULAR SECOND APPEAL NO. 25 OF 2019
Between:
(1) SANT RAM, S/O SH. DAGI, R/O
V.P.O. BHANTHAL, TEHSIL
KARSOG, DISTRICT MANDI, H.P.
(2) JIVA NAND, S/O SH. HET RAM,
R/O V.P.O. BHANTHAL, TEHSIL
KARSOG, DISTRICT MANDI, H.P.
......APPELLANTS
(BY MS. MEERA DEVI AND MR.
HEMANT KUMAR THAKUR,
ADVOCATES)
AND
(1) GOVERDHAN, S/O LATE SH.
JANKU, R/O V.P.O. BHANTHAL,
TEHSIL KARSOG, DISTRICT
MANDI, H.P.
(2) NAND LAL, S/O LATE SH.
JANKU, R/O V.P.O. BHANTHAL,
TEHSIL KARSOG, DISTRICT
MANDI, H.P.
.....RESPONDENTS
(BY MR. R.K. SHARMA, SENIOR
ADVOCATE WITH MR. ARUN
KUMAR, ADVOCATE FOR R1 AND
R2)
(3) KESHAV RAM, S/O SH. HET
RAM, R/O V.P.O. BHANTHAL,
TEHSIL KARSOG, DISTRICT
MANDI, H.P.
(4) NATER SINGH, S/O SH. HET
RAM, R/O V.P.O. BHANTHAL,
TEHSIL KARSOG, DISTRICT
MANDI, H.P.
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2
.....PROFORMARESPONDENTS
(NONE FOR PROFORMA RESPONDENTS)
RESERVED ON: 30.11.2021
.
WHETHER APPROVED FOR REPORTING? Yes.
This appeal coming on for disposal at the admission
stage this day, the Court delivered the following:
JUDGMENT
The instant regular second appeal has been maintained by the appellants, who were plaintiffs before the learned Court below (hereinafter to be called as "the plaintiffs"), laying challenge to the judgment and decree, dated 15.09.2018, passed by learned Additional District Judge, Mandi, District Mandi, H.P., camp at Karsog, in Civil Appeal No. 39 of 2017, whereby the judgment and decree, dated 22.05.2017, passed by learned Civil Judge, Karsog, District Mandi, H.P., in Civil Suit No. 69 of 2012, was affirmed, wherein suit of the plaintiffs was dismissed.
2. Briefly the facts, which are necessary for determination and adjudication of the present appeal, are that on 23.12.2003, the plaintiffs and defendant, Janku (since deceased) have executed a written compromise qua "Taksim Khangi" to the effect that defendant is first party to the composition deed, who had filed an application for partition of the joint land against the plaintiffs and others ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 3 situated in muhal Banthal, Tehsil Karsog, District Mandi, H.P., before AC 1st Grade, Karsog, District Mandi, H.P., qua the suit land and some other land, which application was .
decided in favour of the defendant. The share of the defendants, measuring 001706 bighas as contained in Khasra Nos. 82, 266 and 267, the suit land, which is in possession of the plaintiffs, and has fallen in the share of the defendant, being excess share, in the possession of the plaintiffs, shall remain with the plaintiffs, the 2 nd party in the compromise as before. They shall continue to remain in possession of the same and appropriate the usufructs of the same. Deceased defendant and his LRs are bound by the compromise. In case any party to the compromise takes recourse to the partition, either khangi or through legal process, in that eventuality the aforesaid referred share which is in their possession excess to their share would be considered as second party's individual share alongwith possession and ownership and appeal which Het Ram and Sant Ram (plaintiffs) second party has filed against the order of AC 1st Grade against the first party before the Collector, Karsog has been withdrawn by them. Both the parties shall be bound by the compromise. They shall not file application for partition qua the suit land or appeal against the same and ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 4 the compromise would be considered as a last decree. Further, in case any party violates the terms of the compromise, each party shall have right to take action in .
accordance with the compromise and in case of violation, they shall have a right to get the compromise executed in accordance with law. It is further alleged that on 29.12.2013, to give finality and legal shape to the agreement, the defendant 1st party sold the suit land to the plaintiffs for a consideration of Rs. 25,000/ through "Gharelu Samjhota"
agreeing that defendant shall have no right, title and interest of any type over the suit land in any manner whatsoever and in case the plaintiffs so wish, the defendant shall make revenue entry in favour of the plaintiffs, qua the suit land at the consideration of Rs. 25,000/ having been received. The defendant had done all this with the consent of his family members including wife, son and signed the same in presence of the witnesses. It is further averred by the plaintiffs that they have been requesting the defendant to make entry in their favour in the revenue record by executing a sale deed, but the defendant has been evading the same on one pretext or the other. To this effect, legal notice was also served upon the defendant on 26.05.2011 and a concocted reply of the same was sent. It is averred that cause of action ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 5 arose to the plaintiffs when the agreement, dated 29.12.2003 was executed and when legal notice dated 26.05.2011 to execute the sale deed was served upon the defendant and a .
concocted reply thereof was received. Also on 25.04.2012, when the plaintiffs received summons from AC 1 st Grade, Karsog, regarding partition of the suit land and some other land. Further, also when the plaintiffs changing the very status of the defendant as a owner of suit land, already having been sold to the plaintiffs and the defendant thereafter, threatened the plaintiffs to forcibly occupy the suit land and selling the same to 3rd person in the last week of July, 2012 and right to sue accrued on 16.08.2012, when the defendant finally refused to desist from his illegal acts.
Hence, the present suit.
3. By filing written statement, claim of the plaintiffs was resisted and contested by the defendant and preliminary objections qua maintainability, limitation, no enforceable cause of action, estoppel, nonjoinder and misjoinder of necessary parties were taken. On merits, it has been admitted that defendant has filed the partition case before learned AC 1 st Grade, Karsog, which is pending adjudication. It is averred that defendant came to know about the compromise and agreement when a legal notice, dated 26.05.2011 was served upon him by ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 6 the plaintiffs through their counsel and the same was replied by his counsel. It is further averred that defendant never agreed to sell the suit land to the plaintiffs and never delivered possession .
of the suit land to them and no consideration amount was received by the defendant from the plaintiffs. Lastly, a prayer for dismissal of the suit was made.
4. In replication, averments of the written statement are denied and contents of the plaint are reasserted.
5. The learned Court below framed the following issues for determination and adjudication:
"1.
Whether the plaintiffs are entitled for the decree of permanent prohibitory injunction, as prayed? OPP
2. Whether the plaintiffs are entitled decree for declaration to the effect that they are in possession by way of family arrangement? OPP
3. Whether the suit of the plaintiffs is not maintainable, as alleged ? OPD
4. Whether the suit is barred by limitation?
OPD
5. Whether the plaintiffs have no cause of action, as alleged ? OPD
6. Whether the plaintiffs are estopped to file the suit by their own act and conduct ? OPD
7. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD
8. Relief.
6. After deciding all the issues in negative, suit of the plaintiffs was dismissed. Subsequently, the plaintiffs maintained an appeal before the learned first Appellate Court, ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 7 which was also dismissed and the findings recorded by the learned Court below were upheld. Hence the present regular second appeal.
.
7. The learned counsel for the appellants has argued that the learned Courts below have failed to appreciate the evidence and documents correctly and the findings are perverse. She has further argued that the agreement was a legal and enforceable agreement and the learned Court below have failed to appreciate this fact also. So, in these circumstances, the judgments and decrees passed by the learned Courts below be set aside and present appeal be allowed.
8. On the other hand, learned Senior Counsel appearing on behalf of respondents No. 1 and 2 has argued that the documents are interpreted correctly and the evidence has been appreciated as per law and since there is no substantial question of law involved in the present appeal, the same be dismissed.
9. In order to appreciate the rival contentions of the parties, I have gone through the record carefully.
10. In order to prove their case, the plaintiffs have examined Sant Ram as PW1, who deposed that defendant is his uncle and plaintiff, Het Ram is his cousin. He further deposed that defendant has filed a partition suit before Tehsildar, Karsog against the plaintiffs. Decision whereof was given in favour of ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 8 the defendant and he got 01706 bigha more than that of his share. The appeal against the same was filed before SDM, Karsog and ultimately a compromise was effected, vide which it .
was agreed that extra land, i.e. 01706 bigha will remain with the plaintiffs. The compromise was scribed by one Harish Sharma, Document Writer. He deposed that compromise was reduced into writing before 13 years ago and defendant has put his thumb impression upon it, alongwith witnesses to the compromise. Plaintiff, Het Ram also put his signatures upon the compromise. Thereafter, within six days another document was reduced into writing vide which plaintiffs agreed to give Rs. 25,000/ as consideration, to the defendant. Till then, the disputed land was under the ownership and possession of the plaintiffs, as it was agreed by the defendant that compromise is definite and he also agreed to registered the extra land in their favour. In crossexamination, he agreed to the suggestion that land of defendant is joint with the plaintiffs. He admitted that as per partition, 01706 bigha land belonged to defendant. He agreed to the suggestion that compromise was not written before any revenue court. He denied that in agreement, dated 29.12.2003, no consideration had been given to the defendant. He admitted that compromise was reduced into writing in Tehsil Office by document writer, Harish Sharma. He denied that thumb impression of Janku was taken fraudulently on blank ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 9 paper. He stated that the defendant in his conscious state of mind had himself put his thumb impression on the document. He denied that due to higher market value of the suit land, the .
plaintiffs have fraudulently executed a document on behalf of the defendant.
11. PW2, Padma Nand, has deposed that he know the parties to the litigation. The disputed land situated in Muhal Bhanthal, which is recorded as joint land. He further deposed that the defendant has filed a suit for partition before AC 1 st Grade, Karsog and order was passed in favour of Janku. He deposed that approximately 17 biswas of land of defendant was found in possession of the plaintiffs and thereafter, appeal was filed by the defendant before SDM, Karsog. However, on account of family agreement executed between the defendant and the plaintiffs, the appeal was withdrawn and compromise was effected that the land which belongs to defendant possessed by the plaintiffs will remain in their possession. This witness alongwith one Padma Ram has signed as witness to such compromise and deposed that defendant has put his thumb impression upon the same. He also proved Ext. PW2/A which was executed in the year, 2003. He further deposed that after the aforesaid compromise, another compromise was also effected within a week, wherein the plaintiffs agreed to give Rs. 25,000/, as consideration of that land to the defendant. In ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 10 crossexamination, he admitted that in Ext. PW2/A, the defendant did not mention anything about transfer of his property. He agreed to the suggestion that as per Ext. PW2/A, .
the defendant has withdrawn his suit, to which compromise was effected. He also agreed to the suggestion that compromise Ext. PW2/A had been written when he reached the spot. Self stated that when it was reduced into writing, he was present there. He denied that no consideration amount was given to the
12.
r to defendant in his presence. Self stated that consideration amount was given to the defendant after a week.
PW3, Padma Ram has deposed that the defendant had demanded consideration of Rs. 25,000/ from the plaintiffs to give his share to them and at that time the family of the defendant was also present on the spot. In crossexamination, he deposed that compromise, Ext. PW2/A was reduced into writing at about 2:00 p.m. He agreed to the suggestion that there is no statement regarding transfer of property by the defendant in favour of the plaintiffs. He also agreed to the suggestion that in agreement, Ext. PW2/A, consideration price was not mentioned. He admitted that the suit land is joint till today between the parties. He denied that thumb impression of the defendant upon Ext. PW2/A were taken fraudulently. He also denied that consideration amount was not given to the defendant in his presence. However, admitted that Rs. 2500/ ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 11 was given to the defendant by the plaintiffs in his presence.
13. PW4, Harish Sharma, Document Writer, has deposed that Ext. PW2/A was written by him and bears his .
signatures. He further deposed that contents of the compromise were reduced into writing as per the version of the parties and were read over and explained to them. He deposed that the defendant has put his thumb impression upon the same. In crossexamination, he admitted that in compromise, Ext. PW 2/A, there is no mention about the transfer of share by the defendant in favour of the plaintiffs, i.e. 01706 bigha, neither there is any mention of consideration amount in favour of the defendant. He feigned ignorance about the fact as to when he drafted the compromise.
14. PW5, Perm Singh, deposed that Ext. PW5/A was reduced into writing by him, which he has written as per the version of the parties. He further deposed that parties told him that they got the matter compromised for a consideration of Rs. 25,000/, which plaintiffs gave to the defendant in his presence and in presence of witnesses, Padma Nand and Padma Ram. He deposed that at the time of compromise, both the families were present there. In crossexamination, he denied that he had not written compromise, Ext. PW5/A. He admitted that he is not a licensed document writer. He also admitted that stamp paper, Ext. PW5/A was bought by plaintiff No. 2. He admitted that on ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 12 the back of stamp paper, there was no thumb impression of Janku. He denied that in this document date and time was written subsequently. He also denied that consideration amount .
of Rs. 25,000/ was not given in his presence. He deposed that currency notes were given in the form of Rs. 500/ and Rs. 100/. He feigned ignorance about the fact that both the parties compromised the matter in Tehsil. He also feigned ignorance about the compromise recorded in the year, 2003. He denied that witnesses Padma Nand and Padma Ram were not present on the spot. He admitted that nature of property was not described in Ext. PW5/A.
15. To controvert the claim of the plaintiffs, defendant has examined Baishakhi Devi, who while appearing in the witness box as DW1, has deposed that disputed land is the joint property. She further deposed that her deceased husband, i.e. Janku Ram (defendant) has filed an application for partition before revenue authority and the same was contested and appeal was filed to Financial Commissioner's Court, which was decided in their favour. However, later on they entered into compromise and the plaintiffs have prepared false Bian nama. She deposed that her husband has neither sold any property to the plaintiffs, nor received any consideration amount. She deposed that after preparing false document, the plaintiffs sent a legal notice through their counsel, which was duly replied by ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 13 them. She also proved on record notice, Ext. DW1/A and reply thereof, Ext. DW1/B. She further deposed that the plaintiffs tried to grab the property, as it is valuable and is upward and .
downward the road. She feigned ignorance about affidavit, Ext. PW5/A. In crossexamination, she admitted that Janku was real uncle of the plaintiffs. She further admitted that there was some compromise between Janku and Het Ram, which was effected in Tehsil Karsog on 23.12.2002. She denied that vide said compromise they left their property. She admitted that landed property of Het Ram was more than that of her share to the extent of 0176 bigha. She admitted that decision was given in favour of Janku. She feigned ignorance about the fact that compromise, Ext. PW2/A was challenged before the Collector, which was later on withdrawn. She also feigned ignorance about the fact that her husband, i.e. defendant, received consideration amount of Rs. 25,000/ as per Ext. PW2/A. She deposed that if compromise has been written in their presence, there should be signatures of all the family members.
16. If the statement of PW1 is seen, though he has deposed that family agreement has been executed by Janku on 23.12.2003, vide which he agreed to leave his land, but he admitted that in the said agreement, Janku did not reduce into writing any deposition to sold the property to the plaintiffs. This witness has also admitted that suit for partition was decided in ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 14 favour of the defendant and thereafter the matter was compromised between them by the efforts of an advocate. Now coming to the statement of PW2, who is happened to be the .
witness to compromise, Ext. PW2/A. In his examination he also admitted that suit for partition was decided in favour of defendant, Janku, but the compromise was reduced into writing by one Sh. Harish, document writer and thereafter, Janku put his thumb impression upon Ext. PW2/A and then he alongwith PW3 signed as witnesses.
17. to The statements of PW1 and PW2 nowhere reveal that compromise, Ext. PW2/A was read over and explained to the defendant and thereafter, he put his thumb impression upon it. Further, PW2 has admitted that compromise, Ext. PW 2/A was executed in Tehsil premises, however, perusal of this document shows that it was not registered by any competent authority, as is required under the law.
18. PW3, who was also the witness to compromise, Ext. PW2/A, in his examinationinchief has deposed that at the time when consideration of Rs. 25,000/ was paid to the defendant, the family of the defendant was also present there, however, if statement of DW1, widow of defendant is seen, she denied that consideration was paid to them. This witness in his crossexamination has admitted that in Ext. PW2/A, the defendant did not mention anything about transfer of his ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 15 property. The next witness, i.e. PW4, though, admitted that Ext. PW2/A has been read over and explained to the defendant, however, deposed that nothing has been reduced into writing .
that what should be the consideration in lieu of transfer of defendants' land in favour of the plaintiffs. PW5, writer of Affidavit, Ext. PW5/A, during the course of his cross examination admitted that he is not a licensed document writing writer. He also admitted that nature of property was not described in Ext. PW5/A.
19. to From the statements of aforesaid witnesses, it can be inferred that plaintiffs could not prove their case by leading convincing and cogent evidence that the fact regarding writing of compromise, Ext. PW2/A was well within the knowledge of the defendant. A bare reading of Ext. PW2/A shows that defendant had to leave his part of land in favour of the plaintiffs, however, no reasonable cause has been given in the said document, as to why he is leaving the land in favour of the plaintiffs, when the partition suit was decided in his favour. After Ext. PW2/A, the plaintiffs have placed on record Ext. PW 5/A, Affidavit, executed by the defendant in presence of witnesses Padma Nand and Padma Ram. So, the learned Courts below have rightly held that both these documents, i.e. Ext. PW 2/A and Ext. PW5/A have no legal value in the eyes of law, as the affidavit, Ext. PW5/A was not in the shape of proper ::: Downloaded on - 31/01/2022 23:33:32 :::CIS 16 evidence, whereas, compromise, Ext. PW2/A was not executed before any competent authority Even if it is presumed that Ext. PW2/A was executed by the defendant, then also as per Indian .
Contract Act, it is not a valid agreement for want of consideration, as no consideration has been mentioned in the family settlement.
20. Further, if Jamabandi for the year 200910 is seen, it shows that the defendant alongwith other cosharers is ownerinpossession of the suit land and no partition till date has taken place. So, the transfer, if any, by the defendant is void in the eyes of law and the learned Courts below have rightly dismissed the suit/appeal of the plaintiffs.
21. In view of the discussion made hereinabove and the fact that there is no substantial question of law involved in the instant appeal, which requires consideration, the same is dismissed.
22. The appeal, so also pending application(s), if any, stand(s) disposed of accordingly.
(Chander Bhusan Barowalia) Judge 5th January, 2022 (raman) ::: Downloaded on - 31/01/2022 23:33:32 :::CIS