Himachal Pradesh High Court
Amar Chand vs Sh. Amar Chand on 21 June, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA
ON THE 21st DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
REGULAR SECOND APPEAL No.91 of 2021
Between:
AMAR CHAND, S/O SH. RAM
DAYAL, S/O SH. TULU,
RESIDENT OF
r VILLAGE
NASHALA PHATI NATHAN,
KOTHI NAGGAR, TEHSIL AND
DISTRICT KULLU, H.P.
....APPELLANT/DEFENDANT.
(BY MR. G. R. PALSRA, ADVOCATE)
AND
1. SMT. PUSHPA D/O SH.
BALMUKUND ALIAS BALA
RAM, S/O SH. CHETU,
2. SMT. GUDI ALIAS NARKALI
DEVI, D/O SH. BALMUKUND
ALIAS BALA RAM, S/O SH.
CHETU.
BOTH RESIDENTS OF VILLAGE
NASHALA PHATI NATHAN,
KOTHI NAGGAR, TEHSIL AND
DISTRICT KULLU, H.P.
.... RESPONDENTS/PLAINTIFFS.
(MR. NEERAJ GUPTA, SENIOR
GUPTA, WITH MR.PRANJAL
MUNJAL, ADVOCATE )
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2
.
Whether approved for reporting?1 No
This appeal coming on for order this day, the Court passed the following:
JUDGMENT
By way of this appeal, the appellantdefendant has assailed the judgment and decree dated 31.05.2016, passed by the Court of learned Civil Judge (Senior Division) Kullu, District Kullu, H.P., in Civil Suit No. 147 of 2011, titled as Smt. Pushpa & another Versus Sh. Amar Chand, in terms whereof suit for possession of the suit land by way of cancellation of Gift Deed No. 1206, dated 28.07.1989 was decreed by the learned Trial Court in favour of the plaintiffs and against the appellant/defendant, as also the judgment and decree dated 22.03.2021, passed by the Court of learned Additional District Judge, Kullu, District Kullu, H.P., in Civil Appeal No. 32 of 2016, titled as Shri Amar Chand Versus Smt. Pushpa & another, vide which the appeal which was preferred by the appellant against the judgment and decree passed by the learned Trial Court was dismissed.
2. I have heard learned counsel for the parties and have gone through the judgments and decrees passed by the learned Courts below as well as the record of the case.
1 ::: Downloaded on - 24/12/2022 09:27:32 :::CIS 33. The respondents/plaintiffs (hereinafter referred to as .
'plaintiffs') filed a suit for possession of the suit land, inter alia, on the ground that the suit land was gifted in favour of the appellant/defendant (hereinafter referred to as 'defendant') vide Gift Deed dated 28.07.1989, in lieu of the defendant maintaining their mother Smt. Jai Bantu as the plaintiffs being married daughter of Jai Bantu were residing in their matrimonial house and it was not possible for them to look after their mother. The defendant happened to be the collateral cousin of the plaintiffs. The suit was filed on the ground that though after the execution of the Gift Deed, the mother of the plaintiffs was looked after by the defendant upto the year 1991. However, thereafter, he left the house of plaintiffs' mother and visiting her only off and on. According to the plaintiffs, in view of the fact that they were residing in their matrimonial houses and were not in a position to render twenty four hours service to their mother and defendant had stopped rendering any service to the mother of the plaintiffs since December, 2010 and was openly declaring that he was not ready to render any service and maintain the mother of the plaintiffs and was also proclaiming that he was not in the need of the suit land, the suit stood filed with the prayer already enumerated above, on the ground that the defendant had committed ::: Downloaded on - 24/12/2022 09:27:32 :::CIS 4 breach of terms and conditions of the Gift Deed by failing to render .
service which was a pre condition of the Gift Deed.
4. The suit was contested by the defendant on the ground that he had served and maintained the mother of the plaintiffs, both before and after the execution of the Gift Deed and was rendering service to the old lady even at the time of institution of the suit.
According to him, despite the fact that he was rendering service sincerely to the mother of the plaintiffs, the suit was filed as the plaintiffs as they intended to alienate the suit land. The factum of the Gift Deed containing a condition that the same was liable to be revoked in case defendant did not render service to the mother of the plaintiffs was admitted.
5. On the basis of the pleadings of the parties, learned Trial Court framed the following issues: "1. Whether gift deed dated 28.07.1989 executed by the plaintiffs in favour of defendant is liable to be revoked and cancelled, as alleged?OPP
2. If issue No. 1 is proved in the affirmative, whether the plaintiffs are entitled to the possession of the suit land, as alleged? OPP.
3. Whether the plaintiffs have got no cause of action to file the present sit, as alleged? OPD
4.Whether the defendant has rendered service to Jai Bantu, as alleged? OPD.
::: Downloaded on - 24/12/2022 09:27:32 :::CIS 55. Whether the suit is not maintainable in the present .
form, as alleged?OPD
6. Relief."
6. On the basis of evidence led by the parties in support of their respective contentions, the issues were answered by learned Trial Court as under: "Issue No.1 : Yes.
Issue No.2 : Yes.
Issue No.3 : No.
Issue No.4 : No.
Issue No.5 : No.
RELIEF : Suit of the plaintiffs is decreed
as per operative portion of the
judgment."
7. In terms of the judgment and decree passed by the learned Trial Court, the suit for possession by way of cancellation of the Gift Deed was decreed. While decreeing the suit, learned Trial Court observed that the mother of the plaintiffs had appeared in the witness box as PW2 and she had categorically deposed in the Court that defendant lived in her house and served and maintained her only till 1991. She further stated that she had executed a Will in favour of the defendant, but when the defendant left her, she cancelled the said Will. She also deposed that she was an old lady, yet she was purchasing her own household articles and defendant ::: Downloaded on - 24/12/2022 09:27:32 :::CIS 6 had stopped rendering any service to her. Learned Trial Court .
observed that despite a lengthy crossexamination of the said witness, the creditability of the witness could not be shattered as she categorically denied in her crossexamination that the defendant was still serving her. Learned Trial Court also took note of the fact that other witnesses who appeared before the Court on behalf of the plaintiffs including the plaintiffs, also categorically deposed in the Court that after the execution of the Gift Deed, though the mother of the plaintiffs was looked after by the defendant upto to the year 1991, but thereafter the defendant stopped rendering regular service to the mother of the plaintiffs. Learned Trial Court also held that as the veracity of the statements of the plaintiffs' witnesses could not be belied in the course of crossexamination and further as the defendant was not able to prove his stand, therefore, the plaintiffs were entitled for the decree, as prayed for and the suit was accordingly, decreed by relying upon the judgments of this Court in Gehru Ram Versus Rohlu, 1998 (1) Shim. L.C. (360).
8. In appeal, the findings so returned by the learned Trial Court were upheld. Learned Appellate Court after taking into consideration the pleadings as also the statements of witnesses of the parties and the documents which were exhibited on record held that the learned Trial Court had rightly appreciated the pleadings ::: Downloaded on - 24/12/2022 09:27:32 :::CIS 7 and evidence led by the parties and the findings returned by the .
learned Trial Court were not perverse. An application which was filed before the learned First Appellate Court, under Order 41, Rule 27 of the Civil Procedure Code by the appellant/defendant herein was also dismissed by the learned Appellate Court by assigning reasons as are borne out from Para25 of the judgment.
9. The judgments passed by these two Courts are under challenge by way of this Regular Second Appeal.
10. I have referred to in some detail as to the respective contentions of the parties as well as the issues which were framed by learned Trial Court for the purpose of the adjudication of the suit.
11. Learned Trial Court decided in favour of the plaintiffs that Gift Deed dated 28.07.1999, executed by the plaintiffs in favour of the defendant was liable to be revoked and cancelled by returning the findings that the plaintiffs were able to prove on record that the defendant had breached the conditions of the Gift Deed by not serving the mother of the plaintiffs in terms of the conditions of the Gift Deed. These findings have been upheld by the learned Appellate Court.
12. This court is of the considered view that findings whether the service was rendered by the defendant to the mother of the plaintiffs or not, are pure and simple questions of fact, which ::: Downloaded on - 24/12/2022 09:27:32 :::CIS 8 stand adjudicated concurrently by both the learned Courts below in .
favour of the plaintiffs and against the present appellant.
13. A perusal of record demonstrates that the findings which have been so returned by the learned Courts below cannot be said to be perverse findings, as they are clearly borne out from the statements of PW1 to PW3. Besides, the statements of the defendant as well as DW2 Tulka Ram cannot be said to have had vitiated the contention of the plaintiffs as, proved on record that their mother was not looked after by the defendant in terms of the conditions of the Gift Deed. With regard to the fact, as to whether there was any condition in the Gift Deed that the same was liable to be revoked in case defendant did not render service to the mother of the plaintiffs, there is not much dispute as this fact stood admitted even by the defendant.
14. Therefore, in view of the fact that the suit was decreed by the learned Trial Court by holding that on record it stood proved that the conditions of the Gift Deed stood breached by the defendant by not rendering service to the mother of the plaintiffs and same was reiterated by the learned Appellate Court, said findings having been returned by the learned Courts below being findings of fact and further as no substantial question of law is being involved in the present appeal, the same is dismissed. No order as to costs. Pending ::: Downloaded on - 24/12/2022 09:27:32 :::CIS 9 miscellaneous applications, if any, stand disposed of. Interim order, .
if any, stands vacated.
(Ajay Mohan Goel)
Judge
June 21, 2022
(Rishi)
r to
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