Himachal Pradesh High Court
Raghubar Dayal And Others vs Kuldeep Verma And Others on 21 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 181/2008 Reserved on: November 8, 2016 Decided on: November 21, 2016 _____________________________________________________________ .
Raghubar Dayal and others ..Appellants Versus Kuldeep Verma and others ..........Respondents _____________________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting? 1 of _____________________________________________________________ For the Appellants : Mr. Dinesh Bhanot, Advocate.
For the Respondents : rt Mr. R.K. Gautam, Senior Advocate with Mr. Gaurav Gautam, Advocate, for respondents No.1 to 5. None for respondent No. 6.
_____________________________________________________________ Sandeep Sharma, Judge This Regular Second Appeal has been instituted against judgment and decree dated 3.12.2007 passed by learned Additional District Judge, Solan, District Solan, Himachal Pradesh in Civil Appeal No. 1-NL/13 of 2007 thereby upholding the judgment and decree dated 22.9.2006, passed by Civil Judge (Senior Division), Nalagarh in Civil Suit No. 281/1 of 2002, whereby suit filed by the respondents-plaintiffs (herein after, 'plaintiffs') for declaration with consequential relief of mandatory injunction was decreed and they were declared joint owners in possession of the suit property and 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 2
further held entitled for preliminary decree of partition to the extent of 1/5th share in the suit property.
2. "Key facts" necessary for the adjudication of the .
present appeal are that plaintiffs filed a suit for declaration with consequential relief of mandatory injunction averring therein that the suit land comprising of Khewat/Khatauni Nos. 510/552, bearing Khasra Nos. 1451 (25.50 sq metres), of 1452 (26.25 sq metres) and 1453 (37.00 sq metres) situate in Up Mohal Naya Nalagarh, Tehsil Nalagarh, District Solan, rt Himachal Pradesh, as entered in the Misal Hakiyat Bandobast for the year 1998-99, was purchased by Bhagwan Dass son of Kundan Lal, resident of Jabal from Mulakh Raj son of Late Harbhagwan Dass vide sale deed No. 23 dated 10.4.1973.
Bhagwan Dass expired about 22-23 years ago leaving behind his widow Vidya Devi, four sons namely Shyam Lal, Raghwar Dayal, Raj Kumar and Ramesh Kumar, and one daughter Smt. Pushpa Devi. As per plaintiffs, after the death of Bhagwan Dass, suit property devolved upon his widow, four sons and daughter, in equal shares. Plaintiffs are the sons and widow of Shyam Lal, who was son of Bhagwan Dass. Plaintiffs, after death of Bhagwan Dass, on 6.3.1998 claimed themselves to be shareholders to the extent of 1/5th share each. It is further contended in the plaint that during the course of recent ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 3 settlement, it transpired that the plaintiffs and proforma defendants No. 4 to 6 in the suit land, who were daughters of Late Shyam Lal and proforma defendant No. 7, who was sister .
of Shyam Lal, were not recorded as co-owner and suit land was shown in exclusive ownership and possession of the defendants. In view of above, plaintiffs requested the defendants to admit them and proforma defendants as co-
of owners and co-sharers in possession of the suit land but since no heed was paid to their claim, they were compelled to file the rt suit for declaration to the effect that the plaintiffs and proforma defendants are co-owners and co-sharers in joint possession, with further prayer to declare the revenue entries showing defendants as owner-in-possession as wrong, illegal, null and void.
3. Defendants contested the aforesaid suit of the plaintiffs on the ground of maintainability, estoppel and limitation. On merits, defendants claimed that Bhagwan Dass during his life time had given possession of the suit property to them to the exclusion of the plaintiffs on 10.5.1974 in three equal shares in the presence of respectable persons of the area and since then, Shyaml Lal and proforma defendants were never in possession of the suit property. Defendants further contended that they constructed residential house over the ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 4 suit property in 1974 and their father namely Bhagwan Dass was living with them, alongwith their mother, Vidya Devi.
Defendants further claimed that because of their services .
rendered to Bhagwan Dass, he gave suit land exclusively to them alongwith all rights, title and interest thereupon. In support of their claim, defendants also made available on record, arrangement /writing dated 10.5.1980, Ext. D-1.
of Revenue authorities sanctioned mutation in the name of defendants and their mother, Vidya Devi, on the basis of long rt possession over the suit land, as per Ext. D-1. Defendants further claimed that after death of their mother Vidya Devi on 13.4.1990, her share also devolved upon them to the extent of 1/3rd share each. Defendants further claimed that defendant No.2-Ramesh Chand had also relinquished his right over the suit land, in favour of defendants No.1 and 3 vide relinquishment deed dated 30.1.2002 and as such defendants No. 1 and 3 are absolute owner-in-possession of the suit land.
Defendants, in the alternative, claimed ownership by way of adverse possession being in possession since 10.5.1974, which was alleged to be continuous, hostile and to the knowledge of the plaintiffs and proforma defendants.
4. learned trial Court on the basis of pleadings of the parties, framed following issues:
::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 5"1. Whether the plaintiffs and proforma defendants are co-owners and co-sharers in joint possession in equal share of 1/5 share in suit land property as prayed? OPP
2. In case issue No.1 above is proved in affirmative whether revenue entries are liable .
to be corrected? OPP
3. Whether the plaintiffs are also entitled for the relief of injunction as prayed? OPP
4. Whether the plaintiffs are also entitled for preliminary decree of partition of the suit property? OPP
5. Whether the suit is not maintainable as alleged? OPD 1 to 3 and 7 of
6. Whether the plaintiffs are estopped to file the present suit by their acts, conducts and acquiescence? OPD 1 to 3 and 7.
7. whether the suit of the plaintiffs is within rt limitation? OPP
8. Whether there is no cause of action as alleged? OPD No.1 to 3 U 7
9. Whether defendants No.1 to 3 and 7 have become owners by way of adverse possession of the suit land? OPD 1 to 3 & 7
10. Whether the predecessor in interest of the plaintiffs have executed agreement dated 10.5.1980, if so its effect? OPD 1 to 3 & 7
11. Whether the plaintiffs have no locus standi?
OPD 1 to 3 & 7
12. Whether the suit is not properly valued for the Court fee and jurisdiction? OPD 1 to 3 and 7.
13. Relief"
5. Learned trial Court, on the basis of material placed on record by the respective parties, decided the aforesaid issues and decreed the suit of the plaintiffs, declaring them to be joint owner-in-possession of the suit property to the extent of 1/5 share. Learned trial Court also held the plaintiffs and proforma defendants No. 4 to 6 entitled for preliminary decree ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 6 of partition to the extent of 1/5 share in the suit land. By way of consequential relief of permanent injunction, it restrained the defendants No.1 to 3 from alienating suit property till the .
same is partitioned in accordance with law.
6. Defendants being aggrieved and dissatisfied with the judgment and decree passed by learned trial Court, preferred an appeal before the District Judge, Solan, i.e. Civil of Appeal No. 1-NL/13 of 2007. However, the fact remains that the appeal was dismissed and judgment and decree passed by rt learned trial Court were upheld. Hence, this Regular Second Appeal.
7. The present Regular Second Appeal was admitted on 27.8.2008, on the following substantial question of law:
"Whether the ld. Lower appellate court has not properly appreciated the documentary evidence on record especially Ex. D-2 if so, it's effect?"
8. Mr. Dinesh Bhanot, Advocate, appearing for the appellants-defendants (hereinafter, 'defendants') vehemently argued that the judgments and decrees passed by both the courts below are not sustainable as the same are not based on correct appreciation of the evidence on record, as such, same deserve to be quashed and set aside. While referring to the judgment and decree passed by the trial Court, which were further upheld by first appellate Court, Mr. Bhanot forcefully ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 7 contended that bare perusal of same suggests that the evidence led on record by the defendants was not read in its right perspective and both the Courts below arrived at .
erroneous findings causing grave miscarriage of justice to the defendants, who exclusively proved on record that suit land was given to the defendants by their father to the exclusion of plaintiffs and proforma defendants in lieu of the service of rendered by them to their father during his life time. With a view to substantiate his aforesaid argument, he made serious rt attempt to make this Court to peruse evidence available on record to demonstrate that there is total misreading and mis-
appreciation of oral as well as documentary evidence especially Ext. D-2. He further argued that the judgments and decrees passed by learned Courts below are not based on correct appreciation of evidence, rather same are based upon conjectures and surmises and as such, same deserve to be quashed and set aside. While concluding his arguments Mr. Bhanot strenuously argued that the learned first appellate Court failed to take into consideration documentary evidence and unnecessarily paid undue credence to the oral evidence led on record by the plaintiffs and as such same can not be allowed to sustain. He further stated that bare perusal of Ext.
D-2 placed on record by defendants clearly suggests that the ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 8 defendants are the exclusive owner-in-possession of the suit land and same was executed in accordance with law by their predecessor-in-interest, Shri Bhagwan Dass and same was .
proved in accordance with law before the trial Court. In the aforesaid background, Mr. Bhanot prayed for acceptance of appeal after setting aside the judgments and decrees passed by both the learned Courts below.
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9. Mr. R.K. Gautam, Senior Advocate duly assisted by Mr. Gaurav Gautam, Advocate supported the judgments and rt decrees passed by both the learned Courts below. Mr. Gautam contended that bare perusal of judgments passed by both the learned Courts below suggests that same are based on correct appreciation of evidence adduced on record by the respective parties and there is no scope of interference by this Court, specially in view of the concurrent findings of fact and law recorded by both the learned Courts below, as such, present appeal deserves to be dismissed. Mr. Gautam while referring to the judgments passed by both the Courts below argued that same are based upon correct appreciation of evidence and both the Courts below have dealt with each and every aspect of the matter meticulously and there is no force in the contentions raised on behalf of the defendants that the learned Courts below have misread and misappreciated the evidence ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 9 available on record. With a view to refute contentions put forth on behalf of the counsel for the plaintiffs that the document Ext. D-2 was duly proved in accordance with law .
and same was sufficient to prove the ownership and possession of the defendants, Mr. Gautam, made this Court to peruse document Ext. D-2 to demonstrate that neither same can be termed as a Will nor as a Gift or agreement and same of was rightly not taken into consideration by both the Courts because there is overwhelming evidence adduced on record by rt the plaintiffs suggestive of the fact that they inherited the property of their predecessor-in-interest Bhagwan Dass after his death, being his legal heirs. While concluding his arguments Mr. Gautam, reminded this Court of its limited jurisdiction under Section 100 CPC to re-appreciate the evidence especially in view of concurrent findings recorded by the Courts below.
10. I have heard the learned counsel for the parties and gone through the records of the case carefully.
11. During proceedings of the case, this Court had an occasion to peruse entire evidence, be it ocular or documentary led on record by the respective parties, perusal whereof suggests that the parties are descendants of Late Bhagwan Dass, who was the original owner of the suit land. It ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 10 is also undisputed that suit land was purchased by Bhagwan Dass from Mulakh Raj vide sale deed No.23 dated 10.4.1973.
It is also undisputed that Bhagwan Dass expired on 6.3.1998, .
as a result of which parties to the suit, succeeded to his estate to the extent of 1/5 share in the suit property. As per plaintiffs, their father Shyam Lal son of Bhagwan Dass died on 6.3.1998 and they being his successors succeeded to his of estate including his 1/5th share in the suit land. During the course of re-settlement, names of plaintiffs and proforma rt defendants in the suit land were not recorded as joint owners qua suit land and qua entire land, defendants No.1 to 3 were shown to be owner-in-possession. Defendants claimed that Bhagwan Dass had given possession of suit property to the exclusion of the plaintiffs and proforma defendants on 10.3.1974 in three equal shares to them in the presence of respectable persons of the area and since then, plaintiffs and proforma defendants were never in possession of the sit land.
Defendants also claimed that residential house was constructed in 1974 by them and their father Bhagwan Dass and mother Vidya Devi were living with them. Defendants, in support of their claim, placed reliance upon the arrangement, which was reduced into writing on 10.5.1980 (Ext. D-1), perusal whereof suggests that suit land was purchased by ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 11 Bhagwan Dass from Mulakh Raj, and which was in possession of his three sons Raghwar Dayal, Raj Kumar and Ramesh Chand. Document further suggests that since three had been .
looking after him and his wife, he gave land to them.
Document also reveals that apart from aforesaid three persons, no other person would have any right, title or interest over the suit land.
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12. This Court, with a view to explore answer to the substantial question of law, carefully perused documentary rt evidence led on record by the defendant especially Ext. D-1, on which entire case of the defendants hinges. Close scrutiny of Ext. D-1 and Ext. D-2 clearly suggests that same is an agreement (Ikrarnama), whereby predecessor-in-interest of the parties namely Bhagwan Dass made defendants No.1 to 3 entitled to some land measuring 1025 sq ft situate in Abadi Nalagarh Khas. Though perusal of this document suggests that same was also signed by Pushpa Devi, defendant No.7 as witness, whereas one Sohan Lal also signed as witness No. 1.
Ext. D-2 is copy of relinquishment deed allegedly made by defendant No.2 Ramesh Chand, whereby he relinquished his share in favour of defendants No.1 and 3. Aforesaid Ext. D-1 is neither a Will nor a gift deed. At best, same can be termed as an agreement, as has been mentioned in head note of the ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 12 same. Similarly, in the absence of mention, if any, with regard to other family members/ legal heirs of Bhagwan Dass, i.e. plaintiffs and proforma defendants, same can not be termed to .
be a family settlement allegedly arrived at between the parties because there is nothing with regard to mode of settlement.
Since all the family members were not party to aforesaid document, Ext. D-1, definitely, it can not be termed to be a of family settlement at all. Though, during the argument, Mr. Bhanot made an attempt to persuade this Court to read rt document Ext. D-1 as a Will allegedly made by Bhagwan Dass during his life time in favour of defendants No.1 to 3, with further arguments that perusal of evidence led on record by the defendants clearly proved on record that same was executed strictly in accordance with law. With a view to substantiate his aforesaid argument, he while inviting attention of the Court to Ext. D-1 stated that same was duly signed by Bhagwan Dass, in the presence of marginal witnesses namely Sohan Lal and Pushpa Devi, defendant No.
7. He, while referring to the depositions made by these aforesaid marginal witnesses, strongly contended that since defendants by way of leading cogent and convincing evidence were able to prove on record that Ext. D-1 was executed in accordance with law, both the Courts below should have ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 13 placed reliance upon the same, while accepting the claim of the defendants and rejecting the claim of the plaintiffs. This court, after careful perusal of Ext. D-1 is unable to accept the .
contention of Mr. Bhanot, for the reasons already stated above that by no stretch of imagination, Ext. D-1 can be termed as Will, rather close scrutiny of the defence taken by defendants in the written statement, nowhere suggests that it was the of case of the defendants that they acquired ownership and possession of the suit land on the strength of Will executed by rt their predecessor-in-interest. Defendants claimed that they became owner-in-possession of the suit land immediately after purchase of suit land by their predecessor-in-interest Bhagwan Dass from one Mulakh Raj and accordingly, they were given exclusive right qua suit land by Bhagwan Dass during his life time to the exclusion of the plaintiffs. Careful perusal of Jamabandis Ext. P-2 and P-6, suggests that Bhagwan Dass was original resident of village Jabal, Tehsil Arki and his estate in Tehsil Arki was inherited by his sons, widow and daughter. Perusal of Jamabandis placed on record pertaining to the year 1993-94 clearly suggest that Shyam Lal, husband of plaintiff No.2 and father of plaintiffs No. 1 and proforma defendants No. 4 to 6, was recorded as co-owner in the suit land. For the first time, in the year 1998-99, ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 14 defendants were shown to be exclusive owners of the suit land in Ex. P-3. Similarly, perusal of Ext. P-12 Jamabandi for the year 1998-99 also depicts plaintiffs and proforma defendants .
to be cosharers of the property alongwith defendants No.1 to
3. Defendants took the stand that plaintiff No. 2 and defendants No. 5 and 6 are not the legal representatives of Late Shyam Lal, since she had obtained customary divorce of from plaintiff No.2 on 10.2.1971. Plaintiffs have produced ample evidence to demonstrate that plaintiff No. 2 Pushpa rt Devi was never divorced by Shyam Lal. Jamabandis pertaining to the year 1993-94 clearly suggest that predecessor-in-
interest of the plaintiffs inherited estate of Bhagwan Dass as a cosharer alongwith defendants No.1 to 3, defendant No. 7 and their mother, Vidya Devi. Ext. P-9, abstract of Parivar Register clearly suggests that Pushpa Devi, plaintiff No.2 is recorded as wife of Shyam Lal, whereas defendants No. 1 to 4 and 6 are recorded as daughters and sons of Shyam Lal. Parivar Register clearly belies the stand taken by the defendants that Pushpa Devi was given customary divorce by Shyam Lal and as such she is not entitled to the property being legal heir. Moreover, in the written statement filed by defendants, they themselves admitted the plaintiffs to be legal heirs of Shyam Lal.
Similarly, it is not in dispute that Late Vidya Devi wife of ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 15 Bhagwan Dass inherited suit property alongwith defendants as claimed by the defendants in the written statement because as per them, after death of Bhagwan Dass, they acquired .
property in terms of document Ext. D-1 but the fact remains that Vidya Devi, mother of the defendants expired on 13.4.1990, as a result of which, predecessor-in-interest of plaintiffs namely Shyam Lal being legal heir of Vidya Devi also of became entitled to her share after death of Vidya Devi. When it stands duly proved on record that predecessor-in-interest of rt the plaintiffs namely Shyam Lal was also legal heir of BhagwanDass and Vidya Devi, he also inherited the estate of Bhagwan Dass equally to the extent of 1/5 share alongwith other legal heirs i.e. defendants.
13. Similarly, this Court finds that defendants with a view to prove their possession over the suit land also claimed that they made improvement by way of construction over the suit land, after getting it from Bhagwan Dass but evidence, be it ocular or documentary, led on record, itself belies the aforesaid stand of the defendants because perusal of Ext. P1 Sale deed whereby property was purchased by Bhagwan Dass from Mulakh Raj clearly suggests that suit land was having structure standing on it in the shape of house i.e. 39 feet house of Mulakh Raj, meaning thereby structures were ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 16 already situated on suit land right from the date when property was purchased by Bhagwan Dass. Similarly, perusal of annexure P-6 as has been referred to herein above also .
suggests that other property, which is not subject matter of present suit in Mauja Man, Tehsil Arki, Solan, devolved in equal shares upon all the five brothers, including petitioner.
Though this Court is of the view that document Ext. D-1 of heavily relied upon by the defendants could not be made basis to conclude that defendants inherited property of Late rt Bhagwan Dass but even if Ext. D-1 is read in its entirety, there is no description of property. There is only description with regard to area but admittedly there is no description of property. Similarly, defendants in their written statement claimed that they got this property in 1981 from their father but there is no document save and except Ext. D-1 suggestive of the fact that on that basis aforesaid writing, mutation, if any, was ever recorded in favour of the defendants. To the contrary, missal hakiyat for the year 1989-90, suggests that suit land was inherited by the defendants in equal shares, meaning thereby that Ext. D-1 i.e. alleged writing dated 10.5.1980, was not given effect because had it been made effective, name of Vidya Devi should not have been recorded in the missal hakiyat for the year 1989-90. It is undisputed that ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 17 Late Vidya Devi had expired on 13.4.1990 and as such it is not understood that how her name could be recorded in the missal hakiyat for the year 1998-99, wherein defendants have .
been shown to be exclusive owners-in-possession of the suit land.
14. Before adverting to the merits of the case, it would be appropriate to deal with the specific objection raised by the of learned counsel representing the respondents with regard to maintainability and jurisdiction of this Court, while examining rt the concurrent findings returned by both the Courts below, Mr. Gautam, Senior Advocate had invited the attention of this Court to the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein the Hon'ble Supreme Court has held:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have 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 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."
(p.269) ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 18
15. Perusal of the judgment, referred hereinabove, suggests that 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. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers of under Section 100 CPC, are restrained from re-appreciating the evidence available on record.
16. rt This Court, after careful perusal of evidence especially Ext. D-1 sees no force in the contentions raised by Mr. Bhanot that the learned Courts below have not properly appreciated documentary evidence on record and have misread and mis-appreciated the same, rather close and minute scrutiny of documents compels this Court to conclude that both the learned Courts below have properly appreciated the evidence in its right perspective and there is no illegality or infirmity in the judgments and decrees passed by both the learned Courts below.
17. The substantial question of law is answered accordingly.
18. Accordingly, in view of the discussion and analysis made hereinabove, the present appeal has no merit and the ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP 19 same is dismissed. Pending application(s), if any, also stand disposed of. No costs.
(Sandeep Sharma) Judge .
November 21, 2016 (Vikrant) of rt ::: Downloaded on - 15/04/2017 21:35:12 :::HCHP