Himachal Pradesh High Court
Rajan Sharma vs Chaudhary & Others on 5 July, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
RSA No.83 of 2007
.
Judgment Reserved on: 24.06.2016
Date of decision: 05.07.2016
Rajan Sharma ....Appellant
Versus
Chaudhary & Others ....Respondents
Coram
of
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1 Yes.
For the Appellant:
rt Mr.G.R. Palsra, Advocate,
For Respondent No.1: Mr.Atul Jhingan, Advocate.
Sandeep Sharma,J.
This appeal has been filed by the appellant-
plaintiff against the judgment and decree dated 1.12.2006, passed by the learned District Judge, Mandi, District Mandi, H.P., affirming the judgment and decree dated 26.8.2003, passed by the learned Sub Judge Ist Class, Court No.2, Mandi, H.P., whereby the suit filed by the appellant-plaintiff has been dismissed.
2. The brief facts of the case are that the plaintiff-
appellant (herein after referred to as the `plaintiff'), filed a suit for declaration with consequential relief of injunction wherein 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 2he averred that the land comprised in Khata No.127 Khatauni No.134, Khasra No.943 (old) and new Khasra .
No.913/1, measuring 0-5-1 bigha and the land comprised in Khewat No.127/134 min, Khatauni No.913 min (old), 935/1 (new), measuring 0-4-17 bighas, situated in Mauja Ledo, District Mandi, H.P., (hereinafter referred as the "suit land"), of is recorded in the ownership and possession of defendant No.2 Durga. It is alleged that the aforesaid suit property is joint Hindu coparcenary and ancestral property and plaintiff, rt being grandson of defendant No.2, has got right in the said property by birth. It is further alleged that on 12.12.1991, defendant No.2 has wrongly and illegally entered into an agreement to sell with defendant No.1 for the sale of the suit land, measuring 0-5-0 bigha from each of Khasra numbers for a consideration of Rs.4,000/-. The plaintiff further alleged that defendant No.1 has also obtained ex-parte decree against defendant No.2 for specific performance of contract and injunction as consequential relief with regard to the suit land vide judgment and decree dated 28.8.1998 passed in Civil Suit No.151/96(95), which is collusive, wrong, illegal and not binding on the rights of the plaintiff. It is further alleged by the plaintiff that the defendants were asked time ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 3 and again to get the said agreement cancelled as well as judgment of trial Court set aside but all in vain, hence the .
present suit.
3. Defendant No.1, by way of written statement, raised preliminary objections on the ground of maintainability, the present suit being collusive between the of plaintiff and defendant No.2 and plaintiff having no locus standi to challenge the decree dated 28.8.1998. On merits, the defendant denied the averments made in para-1 of the rt plaint and alleged that defendant No.2 is not owner in possession of the suit land. However, defendant No.1 admitted the factum of agreement to sell between him and defendant No.2. It was also denied that the suit land is joint Hindu Coparcenary property and plaintiff is grandson of defendant No.2. Vide averments made in para-3 of the written statement, defendant No.1 has referred to the previous judgment passed on the basis of agreement to sell between him and defendant No.2 and also made reference to the execution of sale deed by way of appointment of Commissioner on 3.7.2000, on the basis of which now he has become owner in possession of the suit property and the said decree is denied to be collusive. Rather, the present suit is ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 4 alleged to be collusive. It was averred that defendant No.2 has also sold some land out of the suit land to different .
persons. All the other averments have been denied by defendant No.1 and prayed that the suit be dismissed.
4. Defendant No.2, as per record of the trial Court, has not filed any written statement as he was proceeded ex-
of parte.
5. The plaintiff also filed replication to the written statement filed by defendant No.1 and reiterated the rt allegations made in the plaint and denied those of written statement.
6. The learned trial Court, on the basis of pleadings of the parties, settled inasmuch as 7 issues and decided four issues against the plaintiff and three issues against defendant No.1 and accordingly dismissed the suit of the plaintiff. An appeal preferred before the learned Appellate Court was also dismissed.
7. This second appeal was admitted on the following substantial questions of law:
(1) Whether both the ld.courts below have misread, misconstrued and misinterpreted the oral as well as documentary evidence especially Ex.PX, Ex.RX and Ex.RY, which has materially prejudiced the case of the appellant?::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 5
(2) Whether the judgment dated 28.8.1998 in previous suit has been obtained in collusion with defendant Durga?
.
8. Shri G.R. Palsra, learned counsel representing the appellant-plaintiff, vehemently argued that the judgment and decree passed by both the Courts below are against law and facts on record and as such the same deserve to be quashed of and set aside being unsustainable in the eye of law. He also submitted that, while dismissing the suit filed by the plaintiff, both the rt Courts bellow misread, misconstrued misinterpreted oral as well as documentary evidence made and available on record, especially Ex.PX, Ex.RX and Ex.RY. He contended that both the Courts below, in order to prove the relationship of the plaintiff with Durga, have failed to appreciate ample oral evidence led by the plaintiff coupled with the document Ex.PX, hence, any finding returned by the Courts below that the plaintiff failed to prove the relationship, if any, with Durga is contrary to the record and same deserves to be quashed and set aside. He forcefully contended that the finding returned by the learned Courts below that the suit land is self acquired property of deceased Durga is contrary to record and cannot be allowed to sustain, especially in view of the documentary evidence available on ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 6 record. During arguments having been made by him, he also invited the attention of this Court to the oral as well as .
documentary evidence led on record to demonstrate that the plaintiff had led the cogent and convincing evidence on record to prove relationship between the parties. He also made this Court to peruse the statements rendered by the of defendant and argued that bare perusal of deposition made by defendant suggests that it is untrustworthy and does not inspire confidence and has been wrongly relied by the Courts rt below. He also contended that findings returned by the both the Courts below that ex-parte decree, dated 28.8.1998, obtained by defendant No.1, is not collusive, rather the same is based upon the agreement to sell, allegedly entered into by Shri Durga with defendant No.1 is not based on correct appreciation of record. He strenuously argued that the rights of the plaintiff, who was admittedly minor, were required to be protected by the Court. But, in the present case, both the Courts below, solely relying upon the statement given by the defendant, dismissed the suit of the plaintiff ignoring the revenue record, wherein it stands clearly established that Durga inherited the suit property from his forefathers and as such plaintiff, being grandson of Durga, ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 7 had right over the ancestral property. He also invited the attention of this Court to CMP No.115 of 2007 filed in this .
appeal under Order 41 Rule 27 of the Code of Civil Procedure (for short `CPC') for permission to lead additional evidence.
However, perusal of order dated 27.2.2009, when the present appeal was admitted, suggests that aforesaid application was of ordered to be considered at the time of final hearing of the main appeal.
9. Shri Atul Jhingan, learned counsel, representing rt the respondents, supported the judgments passed both the Courts below. He vehemently argued that no interference, whatsoever, of this Court is called for in the present case, where concurrent findings have been returned by the Courts below that too after appreciating material evidence available on record. During submissions having been made by him, he made this Court to travel through oral as well as documentary evidence available on record by respective parties to demonstrate that how miserably the plaintiff has failed to prove that the suit land was joint, co-parcenary and ancestral property and he being the member of joint Hindu co-parcenary and ancestral property, (being the grandson of defendant No.2), has right in the suit property by birth. He ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 8 forcefully contended that there is no document on record suggestive of the fact that the plaintiff, being grandson of .
defendant No.2, has right in the suit property by birth. He also invited the attention of this Court to the statement made by PW-1 Keshav Ram, father of the plaintiff, wherein he deposed that Durga, apart from ancestral property, had some of self-acquired property. He also argued that there is nothing in the statement of PW-1 to suggest that which part of land was sold by Durga to defendant No.1. He also opposed the rt prayer made on behalf of the plaintiff for setting aside the ex-
parte decree dated 28.8.1998 obtained by defendant No.1 on the ground that no evidence worth the name has been led on record to demonstrate/suggest that agreement to sell dated 12.12.1991, entered between defendant No.1 and Durga, is a result of fraud or collusion. He also opposed the aforesaid application bearing CMP No.115 of 2007 filed on behalf of the plaintiff for leading additional evidence, at this stage, by stating that the plaintiff had ample opportunity to place on record additional documents, if any, at the trial stage of suit and thereafter during the pendency of first appeal. He invited the attention of this Court to the application and argued that no reasons, whatsoever have been spelt out in the application ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 9 for non-placing of these documents at the time of filing of the suit, when admittedly these were available with the plaintiff.
.
At last he prayed for the dismissal of the appeal.
10. I have heard learned counsel for the parties and have gone through the record of the case.
11. Before proceeding to answer the substantial of questions of law formulated by this Court, at the time of admission, it would be appropriate and in the interest of justice to deal with the application being CMP No.115/2014 rt filed on behalf of the plaintiff under Order 41 Rule 27 CPC for placing on record additional evidence at first instance.
12. Appellant in his application moved under Order 41 Rule 27 CPC has sought permission to lead additional evidence during the pendency of the present appeal. It would be apt to reproduce paras 2 and 3 of the application which are reproduced hereinbelow.
"2. That the applicant/appellant due to inadvertence could not file the material documents, which are very necessary and bone of contention between the parties because most of the record is in Urdu and the applicant is minor, whose interest has not been protected and watched in proper manner by the guardian who is also simpleton/illiterate lady. Now, the applicant wants to file by way of additional evidence the following documents:-
(i) Copy of Sajra Naxb (Pedigre table)
(ii) Copy of jamabandi for the year 1939-40 ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 10
(iii) Copy of mutation No.334 dated 15.6.1951 alongwith jamabandi for the year 1950-51
(iv) Copy of pariwar register .
(v) Copy of jamabandi for the year 1997-98.
(vi) Copy of consolidation for the year 1991-92.
(vii) Copy Misalhaquiat Bandobast Jadid.
3. That if the aforesaid documents are not allowed to be produced and exhibited in this case, then the case of the applicant/appellant will be adversely affected because these documents prove the nature of the suit land and of the relationship of the plaintiff with the deceased Durga."
13. Bare perusal of averments contained in the paras rt reproduced above, suggests that applicant-appellant, due to inadvertence, failed to file these documents at the time of filing of the suit. Interestingly, applicant-appellant, mother of the minor Rajan Sharma, has moved this application for placing on record the aforementioned documents by way of additional evidence. Only reason, which has been given for not furnishing these documents at the time of suit, is that same could not be filed due to inadvertence since the applicant is minor, his interest has not been protected and watched in proper manner by his mother, who is a simpleton illiterate lady. But careful perusal of this application, which is duly supported by affidavit of Smt.Dhanwanti Devi widow of Shri Keshav Ram, who had actually filed a suit on behalf of ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 11 Rajan Sharma, minor plaintiff, being natural guardian. It is not understood that how a simpleton illiterate lady, who .
failed to protect and watch the interest of the minor in proper manner, could file the instant application at this stage for leading additional evidence by placing some documents on record. Since this application on behalf of minor plaintiff has of been moved by the same lady, who allegedly, as per averments contained in para-2, failed to protect and watch interest of minor in proper manner, it cannot be accepted rt that due to inadvertence documents proposed to file at this stage could not be filed at the time of filing the suit. Rather, while perusing the judgments passed by both the Courts below, it transpired that applicant-appellant had moved one application for leading additional evidence before the first appellate Court, wherein copy of Parivar Register was sought to be placed on record to prove that minor plaintiff Rajan Sharma grandson of Durga had share in the joint co-
parcenary property. At this stage, plaintiff-appellant owes explanation that why these documents, if any, available with them, were not filed at the time of moving application before the first appellate Court. Perusal of the documents proposed to be placed on record at this stage, as find mention in ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 12 paragraph-2 of the application, itself suggests that all these documents were available at the time of filing the suit and no .
plausible explanation worth the name has been rendered by the applicant-appellant in the application that why despite due diligence he could not lay his hand to these documents at the time of filing of the suit and as such this Court sees no of reasons, whatsoever, to accept the contention put forth by the applicant-appellant at this stage regarding inadvertence.
Rather, Court has reasons to believe that after passing of the rt judgments by both the Courts below better sense prevailed upon the appellant and they after taking hint from the observations made by the Courts below, moved instant application under Order 41 Rule 27 CPC at this stage, which cannot be permitted at this belated stage. No doubt, documents, proposed to be led in additional evidence, are prepared by the government servants in discharge of their duties and same are perse admissible, but fact remains that it was duty of the applicant-plaintiff to place the same on record at the time of filing of the suit and in case these documents were not available to the plaintiff at that time, he could always move an application at the time of filing first appeal. If the application filed by the applicant-appellant is ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 13 read in its entirety, no plausible explanation worth the name has been rendered for not placing these documents on record .
at the time of filing of the suit and thereafter at the time of filing the first appeal. There is no whisper that what prevented the applicant-plaintiff to place these documents on record earlier. As has been observed above, only explanation of rendered by the applicants, that interest of minor was not protected and watched in proper manner by his guardian, who is simpleton illiterate lady, is also falsified on the face of rt it because admittedly present application has also been filed by the same lady, who, as per paragraph-2 of the application, failed to protect and watch the interest of minor being guardian and mother of the minor. Hence, this Court sees no reason, whatsoever, to allow this application at this belated stage because allowing the application, at this stage, would be detrimental to the interest of the defendants, who, admittedly, after contesting the suit for almost 13 years, have finally succeeded by leading cogent and convincing evidence on record to establish their right over the suit land. Apart from this, this Court has no hesitation to conclude that no sufficient cause has been rendered by the applicant-appellant ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 14 in the application for non production of these documents, hence application deserves to be rejected.
.
14. In this regard reliance is placed on Union of India vs. Ibrahim Uddin and Another, (2012)8 SCC 148, wherein the Hon'ble Supreme Court held:-
"Order 41 Rule 27 CPC of
36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the Appellate Court to take rt additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526; The Municipal Corp. of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008; Soonda Ram v. Rameshwarlal, AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy, AIR 1979 SC 553).
37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co., AIR 1978 SC 798).::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 15
38. Under Order 41 Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain .
such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is of empowered to admit additional evidence. (Vide Lala Pancham).
39. It is not the business of the Appellate Court to supplement the evidence adduced by one rt party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 and S. Rajagopal v. C.M. Armugam, AIR 1969 SC
101).
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
41. The words "for any other substantial cause"
must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this Rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 16 Appellate Court cannot pass a satisfactory judgment."
(pp.167-169) .
15. In Wadi vs. Amilal and Others, (2015)1 SCC 677, the Hon'ble Supreme Court held:
"4. It cannot be disputed that the correct date of death of Rupa Ram would clinch the issue of and enable the court to pronounce a satisfactory judgment in the suit. A perusal of mutation No. 49, if proved, would throw considerable light on the issue. On the question of admission of that document by the appellate court, it would be necessary to notice the relevant provision of rt Order 41 Rule 27 of the Code of Civil Procedure:
"27. Production of additional evidence in appellate court. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court, but if -
(a)-(aa) * * *
(b) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined."
5. Now it is clear that Rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in Sub-rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in Clauses (a), (aa) and (b). We are concerned here with Clause (b) which is an enabling provision. It says that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 17 examined. The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and .
to pronounce an effective judgment admission of such evidence is necessary, Clause (b) enables it to adopt that course. Invocation of Clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of material on record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case."
of (pp.678-679)
16. In the present case, applicant-plaintiff nowhere rt pleaded on record that despite due diligence, he could not produce these documents before the learned first appellate Court, rather very strange stand has been taken in para-2 of the application which is reproduced hereinbelow:
"2. That the applicant/appellant due to inadvertence could not file the material documents, which are very necessary and bone of contention between the parties because most of the record is in Urdu and the applicant is minor, whose interest has not been protected and watched in proper manner by his guardian who is also simpleton/illiterate lady."
17. But, as has been observed above, present application has also been moved by the same lady who has been termed as `simpleton/illiterate lady'. There is no averment worth the name to suggest that it was beyond their control to place these documents in evidence at the time of ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 18 filing suit and thereafter in appeal. Appellant-applicant could have definitely produced these documents, if he had shown .
due diligence during the course of the trial but as emerges from the record, suit in question has been filed half heartedly by the father of the minor plaintiff namely; Rajan Sharma, who admittedly was the son of late Durga i.e. grandfather of of plaintiff. It is not understood when a suit for declaration with consequential relief of injunction against the defendant was filed by stating that the suit property is joint Hindu co-
rt parcenary and ancestral property and plaintiff, being grandson of defendant No.2, has right to said property by birth, why the documents, which are now being sought to be placed on record, were not filed, which were admittedly crucial of determining the dispute in question. This Court, while deciding this application, constrained to take into consideration the stand taken by the defendants in the suit where specific objection with regard to collusion of present plaintiff and defendant No.2 has been taken. In totality of the facts and circumstances narrated hereinabove, this Court has plausible reasons to conclude that the present application has been filed solely with a view to fill up the lacune as indicated by both the Courts below and as such ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 19 application moved at this belated stage cannot be allowed by this Court, accordingly the same is dismissed.
.
18. To answer substantial question of law No.1, as formulated above, this Court traveled through the evidence led on record by the respective parties as well as documentary evidence especially Exs.PX, RX, and RY.
of
19. After traversing through record of this Case, it appears that plaintiff Rajan Sharma, being grandson of Durga, filed a suit on the ground that he being the member of rt joint Hindu co-parcenary and ancestral property has a right in the property by birth. He filed suit for declaration with consequential relief of injunction, wherein, he averred that land, description whereof has been given above, is recorded in the ownership and possession of the defendant No.2- deceased (LRs of whom stand proceeded ex-parte). Plaintiff specifically alleged that property is a joint Hindu co-
parcenary and ancestral property and he, being grandson of defendant No.2, has right in the property by birth since, as per plaintiff, defendant No.1 wrongly and illegally entered into agreement to sell on 12.12.1991 with defendant No.2 for the sale of 0-10 bighas of land i.e. 0-5-0 bigha each from two Khasra Numbers, for a consideration of very petty amount i.e. ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 20 Rs.4,000/-. The plaintiff has further alleged that defendant No.1 has also obtained ex-parte decree against defendant .
No.2 for specific performance of contract and injunction as consequential relief with regard to the suit land vide judgment and decree dated 28.8.1998 passed in Civil Suit No.151/96(95). Plaintiff by way of suit also sought of declaration that aforesaid decree being collusive, wrong, illegal and not binding on the rights of the plaintiff may also be declared nonest and set aside. Defendant contested the rt suit and specifically denied that defendant No.2 is owner in possession of the suit land. Defendant No.1 in written statement admitted that he had entered into an agreement to sell with defendant No.2 and after obtaining decree from the Civil Court he got the sale deed executed qua the suit land.
Assertion of the plaintiff that the suit land is a joint Hindu co-parcenary property and he is grandson of defendant No.2 has also specifically been denied by the defendant.
Defendant also denied that the decree obtained by him is collusive, rather he alleged that suit is collusive.
20. Keshav Ram, father of plaintiff Rajan Sharma, appeared as PW-1 and reiterated the submissions contained in the plaint. He specifically stated that defendant No.2 ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 21 Durga was his father and suit property is ancestral in nature as the same was inherited by Durga from his ancestors. In .
his statement he also deposed with regard to the agreement allegedly executed between defendants No.1 and 2, but stated the same to be result of fraud. However, in his cross-
examination he stated that the name of his grandfather is of Gopal and that of his great-grandfather is Mahajan. In his cross-examination he also admitted that the entire land in the name of his father was not by way of Nataure but some rt land was his self-acquired and some was ancestral. However, in his cross-examination, he could not explain that how much land was inherited by his father from his forefathers.
After perusing the deposition made by aforesaid plaintiff witness, one thing clearly emerges that deceased Durga was the owner of the suit land. But, since, as per statement of this witness Durga had acquired some land in Nautore apart from the ancestral property which he inherited from his forefathers, onus was definitely upon PW-1 to prove that land, if any, sold to defendant No.1 was ancestral. In the present case, careful perusal of deposition made by PW-1 nowhere suggests that he was able to distinguish the land owned and possessed by defendant No.2. Admittedly, in the ::: Downloaded on - 15/04/2017 20:45:58 :::HCHP 22 present case, no evidence worth the name has been led on record by the plaintiff to suggest that defendant No.2 sold .
that portion of the land to defendant No.1 which he had inherited from his forefathers being ancestral property. PW-1 also tendered in evidence Ex.PW-1/A, Jamabandi for the year 1991-92, wherein land in Khasra Nos.913 and 935, kitta 2, of measuring 3-14-11 bighas is recorded in the name of Durga son of Gokal. There is another document Ex.PW-1/B on record which suggests that defendant No.2 Durga had agreed rt to sell land in Khasra No.943, measuring 0-5-0 bigha and Khasra No.913/2, measuring 0-5-0 bighas for a sale consideration of Rs.4,000/- in favour of defendant No.1 Chaudhary.
21. Similarly, Khem Chand, PW-2, stated that Keshav Ram is father of the plaintiff and Durga is father of Keshav Ram and that the suit property is ancestral property of the parties which is in possession of Keshav Ram and Smt.Indira. However, in his cross-examination he admitted that suit land has been sold by Durga to defendant No.1 Chaudhary in terms of agreement. He also failed to depose that how much land was ancestral land inherited by Durga from his ancestors.
::: Downloaded on - 15/04/2017 20:45:59 :::HCHP 2322. Conjoint reading of statements made by PW-1 and PW-2, however, suggests that defendant No.2 Durga had sold .
certain portion of land, description whereof has been given in Ex.PW-1/B, but, as has been observed, it remains un- explained that out of which property Durga had sold this property to defendant No.1. It has specifically come in the of statement of aforesaid plaintiff witnesses that defendant No.1 Dugra, apart from having ancestral property, had acquired some land in Nautore but specifically in the absence of rt specific proof that Durga had sold some portion of the land which he actually acquired as an ancestral property, version put forth by the plaintiff that action of defendant No.2 for selling the ancestral property was not in accordance with law, cannot be lent much credence. Since plaintiff has miserably failed to lead any evidence on record to suggest that defendant No.2 Durga sold ancestral property acquired by him from his forefathers, Courts below rightly relying upon the evidence available on record concluded that plaintiff miserably failed to prove that nature of the property sold by defendant No.2 Durga was ancestral.
23. Factum with regard to the sale deed executed by defendant No.2 in favour of defendant No.1 in terms of ::: Downloaded on - 15/04/2017 20:45:59 :::HCHP 24 judgment dated 28.8.1998 also stands proved on record because it is an admitted case of the parties that on the basis .
of agreement to sell entered into between defendant No.1 and defendant No.2, decree was passed in favour of the defendant No.1 and as a result whereof Commissioner was appointed by the Court for execution of the sale deed, which fact stands of duly proved vide Ex.DW-1/D i.e. order dated 23.5.2000. This Court, while traversing through evidence made available on record, could not lay its hand to any evidence, be it ocular or rt documentary, which could be sufficient to prove that there was fraud, if any, played by defendant No.1 upon defendant No.2 to execute the sale deed in question. But fact remains that defendant No.2, who had allegedly entered into sale agreement with defendant No.1 on the basis of which sale deed was executed after passing of the decree by the trial Court, never assailed the sale deed on the basis of fraud, undue influence or coercion etc. Moreover, fact remains that the judgment passed by the trial Court in Civil Suit No.151/96(95) has attained finality and at this stage parties cannot be allowed to rake-up that issue by alleging that previous judgment is vitiated by fraud. This Court, after careful perusal of the evidence available on record, is of the ::: Downloaded on - 15/04/2017 20:45:59 :::HCHP 25 view that both the Courts below have rightly passed the judgments and no fault, if any, can be found with the same.
.
Rather, both the Courts below have very meticulously dealt with each and every aspect of the matter and it cannot be said that Courts below mis-read and mis-construed the evidence available on record. It is well settled law that co-
of parcernary or ancestral property cannot be alienated by sale, gift or in any other manner by co-parcernar except for legal necessity, discharge of debt or better management of rt ancestral property. But, as per law, coparcener has no right to restrain the Karta of the Hindu Joint Family from discharging his duties as Karta in accordance with law. It is also well settled law that there cannot be any injunction by a Court restraining the Karta from making alienation when the same is being managed by Karta of the family.
24. In the present case, where plaintiff being grandson of defendant No.2 challenged that action of the defendant No.2 in selling the property to defendant No.1 on the ground that the property was co-parcenary or ancestral in nature and as such it could not be sold by the defendant No.2 to the detriment of plaintiff. But in such like case onus was upon the plaintiff to prove that nature of the property, ::: Downloaded on - 15/04/2017 20:45:59 :::HCHP 26 which has been sold by defendant No.2. Plaintiff has nowhere led any evidence from where it could be inferred that .
land sold by Durga (defendant No.2) was actually ancestral and same was inherited by Durga i.e. grandfather from his forefathers. Moreover, in the present case no evidence worth the name has been led on record by the plaintiff to suggest of that he is the grandson of Durga and thereafter no evidence worth the name has been led to suggest that the property in question sold by defendant No.2 to defendant No.1 was rt ancestral in nature. Hence in the absence of specific evidence led on record by the plaintiff to prove that the property in question was ancestral and he being the grandson of defendant No.2 had any right in the ancestral property, the suit filed by the plaintiff has been rightly rejected by the trial court below. The fact remains that the plaintiff has not led any evidence on record, as has been observed by the Courts below, in the shape of pedigree table to establish that he is the grandson of Durga, defendant No.2. Though by leading the additional evidence, during the pendency of appeal, document Ex.PX was placed on record i.e. extract of Pariwar Register to demonstrate that Rajan Sharma is recorded as son of Keshav Ram, but defendant ::: Downloaded on - 15/04/2017 20:45:59 :::HCHP 27 placed on record another documentary evidence i.e. extract of Pariwar Register Ex.RX, pertaining to year 1995, wherein .
name of father of Keshav Ram is recorded as Durga. In Ex.RY there is no mention of the name of plaintiff Rajan Sharma.
Both the aforesaid certificates have been issued by Secretary, Gram Panchayat, Biarkot to plaintiff and defendant No.2.
of After perusing Ex.RY, it can be concluded that if Rajan Sharma was grandson of defendant No.2, his name should have been mentioned in Pariwar Registrar of the year 1995 rt and subsequent thereto. Learned first appellate Court has rightly concluded that entry, if any, made in the Pariwar register Exs.PX and RX, is infact on the basis of some certificate produced by the plaintiff from Municipal Council, Shimla, whereas in that eventuality plaintiff should have examined the officers of the Municipal Council, Shimla to prove the same, but admittedly no official of Municipal Council, Shimla was ever examined.
25. Consequently, in view of the discussion made hereinabove, this Court is of the view that there is no mis-
reading and mis-appreciation of oral as well as documentary evidence i.e. Exs.PX, RX and RY as alleged by the plaintiff and the judgments passed by both the Courts below are ::: Downloaded on - 15/04/2017 20:45:59 :::HCHP 28 based upon proper appreciation of evidence available on record and as such substantial question No.1 is answered .
accordingly.
26. So far substantial question No.2 is concerned, since no specific evidence has been led on record by the plaintiff to prove that the judgment dated 28.8.1998 in of previous suit has been obtained in collusion, both the Courts below have rightly held that the judgment and decree dated 28.8.1998 passed by the learned Court in previous Civil Suit rt No.151/96(95), by Sub Judge, Court No.2, Mandi has attained finality and it is binding upon the parties. There is no evidence worth the name led by the plaintiff on record to prove that the aforesaid decree was result of fraud exercised by defendant No.2 upon defendant No.1 and as has been observed above that best person to assail aforesaid sale deed on the basis of fraud, undue influence was defendant No.2, who never during his life time chosen to assail the same and as such findings returned by the both the Courts below deserve to be upheld and substantial question of law No.2 is answered accordingly.
27. Consequently, in view of detailed discussion made hereinabove, this Court has no hesitation to conclude that ::: Downloaded on - 15/04/2017 20:45:59 :::HCHP 29 judgments passed by both the Courts below are based upon the correct appreciation of record/evidence available on .
record. To answer the substantial question, reproduced hereinabove, this Court traveled through entire evidence led on record by the parties to the lis and it can be safely concluded that both the Courts below have rightly returned of the concurrent findings of facts as well as law after dealing with the evidence on record meticulously. There is no doubt that defendant, by leading cogent and convincing evidence, rt has established that he purchased the suit land from defendant No.2 in terms of sale agreement, whereas plaintiff miserably failed to prove that he, being the grandson, has right in the ancestral property. Hence this Court is of the view that this is not a fit case where in exercise of powers/jurisdiction under Section 100 CPC concurrent findings returned by both the Courts below cannot be upset, especially when the plaintiff has failed to prove that judgments are perverse.
28. Reliance is placed in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein the Hon'ble Apex Court held:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have ::: Downloaded on - 15/04/2017 20:45:59 :::HCHP 30 established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation 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 the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not of keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
rt (p.269)
29. Hence, in view of the aforesaid discussion, this Court is compelled to conclude that the impugned judgments passed by both the Courts below are based on proper appreciation of the evidence, be it ocular or documentary on the record and, as such, substantial questions of law, framed above, are answered accordingly. Hence, present appeal fails and the same is, accordingly dismissed.
30. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.
July 5, 2016 (Sandeep Sharma)
(aks) Judge
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