Himachal Pradesh High Court
___________________________________________________________ vs Kewal Ram & Others on 5 December, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.672 of 2005 .
Date of Decision: 5th December,2016.
___________________________________________________________ Bhagat Ram & Others ..... Appellants.
Versus Kewal Ram & others ... Respondents.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
of Whether approved for reporting?1 For the Appellants : Mr.Bhupinder Gupta, Sr. Advocate, rt with Mr. Janesh Gupta, Advocate.
For the Respondents: Mr. G.D.Verma, Senior Advocate, with Mr. B.C.Verma, Advocate.
Sandeep Sharma, Judge The instant Regular Second Appeal filed under Section 100 of the Code of Civil procedure, is directed against the judgment and decree dated 27.9.2005, passed by learned Additional District Judge(Presiding Officer, Fast Track Court) Solan, District Solan, H.P. in Civil Appeal No.13FT/13 of 2005/2004, affirming the judgment and decree dated 26.7.2004, passed by learned Civil Judge ( Junior Division) Kasauli District Solan, H.P., in Civil Suit No. 245/1 of 1993, whereby suit for declaration and Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP ...2...
permanent prohibitory injunction filed by the present appellants-plaintiffs was dismissed.
.
2. Briefly stated facts of the case as emerged from the record are that Smt. Hemawati predecessor-in-
interest of the appellants(hereinafter referred to as the 'plaintiffs') filed suit for declaration to the effect that the of gift deed dated 6.4.1953 and mutation No.66, dated 26.4.1953 are void, illegal and are not binding upon the rights rt of the plaintiffs and plaintiffs possession of property entered in khewat/ khatauni are owner in No.14/15, situated in village Janjoha, Pargna Dharat, Tehsil Kasauli, District Solan, H.P and for permanent injunction restraining the defendants from interfering and order of partition dated 29.2.1992, passed by Assistant Collector 1st Grade Kasauli is void and is not binding on the plaintiffs.
3. It may be noticed here that after filing of Civil Suit No.245/1 of 1993, original plaintiff namely Smt. Hemawati w/o Sh. Hari Ram passed away, as a result of which, her legal representatives were impleaded as plaintiffs No.1 (a) to 1(g).
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4. In nutshell, the case of the plaintiffs is that deceased Smt. Hemawati was owner in possession of land .
as described in para-1 of the plaint(hereinafter referred to as the 'suit land), situated at village Janjoha, Tehsil Kasauli, District Solan, H.P. As per the plaintiffs, person namely Thollu had four sons namely Chaudhary, Dolla, of Mussadi and Shiboo. Chaudhary had three daughters namely Darshanu, Dakhanu and Hemawati i.e. original plaintiff.
Chaudhary rt Dolla and had Dolla no issue.
passed
Plaintiff
away and
averred that
thereafter
daughters of Chaudhary were looked after by Shiboo and Mussadi. Plaintiff further averred that plaintiff was married to one Sh. Hari Ram about 40 years back and after the marriage she had returned to the village Janjoha to look after her old uncles Mussadi and Shiboo, who were unable to cultivate their lands. Plaintiff further claimed that after the marriage, defendant No.7 and mother of defendants No.8 and 9 also left the village Janjoha and relinquished their rights of inheritance in the property in favour of the plaintiff Smt. Hemawati, who was looking after Mussadi and Shiboo. Plaintiff further claimed that since Mussadi and Shiboo were being looked after properly by her and ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP ...4...
her husband, they intended to give their entire property to the plaintiff, to which her sister also not objected.
.
5. As per plaintiff, Shiboo approached Seesh Ram defendant No.1, who is the brother of plaintiff's husband Sh. Hari Ram being an educated person to accompany them to Patwari for lodging the report on gift in the of rojnamcha, but defendant No.1, Seesh Ram,who was clever and shrewd person, taking undue advantage of the well as in rt situation got the report of gift deed made in his favour as favour of his brothers for which rapat/report dated 6.4.1953 was registered and on the basis of the which, mutation No.66 dated 26.4.1953 was entered in their favour with the collusion of the Patwari. Plaintiff termed aforesaid mutation to be result of fraud, misrepresentation of facts and misuse of faith deposed on him by Shiboo. Plaintiff further claimed that aforesaid mutation was not known to the plaintiff and her husband as well as other brothers and as such, she always considered herself to be absolute owner in possession with the full knowledge of the defendants, who always acknowledged her ownership and possession over the suit land. Plaintiff further claimed that she only came to know ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP ...5...
about the fraud when her husband received summons in some partition proceedings on the application of .
defendant No.1, which was pending before the Assistant Collector 1st Grade Kasauli. In the aforesaid background, plaintiff claimed that the entire partition proceedings in case titled as Seesh Ram versus Hemawati, Hari Ram are of wrong, illegal, null and void being based upon the wrong revenue entries, which are result of fraud and
6. rt misrepresentation.
Plaintiff further claimed that illegal partition proceedings does not create any right, title or interest in favour of the defendants and she still continue to be owner in possession of the suit land. Plaintiff in alternative, further averred that otherwise also she inherited the property after the death of Shiboo in the year, 1965 and defendants were never in the possession of the suit land.
7. Record reveals that defendants No. 2, 7, 10 to 16 admitted the claim of the plaintiffs and termed the aforesaid mutation as well as gift deed in favour of defendant No.1 to be procured by fraud and misrepresentation. Aforesaid defendants have specifically stated in the written statement that they have no ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP ...6...
objection, if the decree, as prayed for, is passed in favour of the plaintiff.
.
8. Defendant No.1, Seesh Ram by way of detailed written statement refuted the claim having been put forth on behalf of the plaintiffs in the plaint. Defendant No.1 specifically denied that the plaintiff is owner in owner in of possession of the suit land and claimed that he is joint owner in possession of the suit land to the extent of 1/4th rt share. Defendant No.1 also denied the pedigree table shown in the plaint and claimed that Shiboo and Mussadi were looked after and maintained by him and Hari Ram, Muni Lal and Pat Ram son of Sh. Ram Singh jointly till their death and their last rights were also performed by them.
Defendant No.1 further claimed that initially, he lived with Shiboo and Mussadi alone but thereafter other three bothers also joined them. Defendant No.1 admitted the claim of the plaintiff that Shiboo and Mussadi were issueless and they were satisfied with the services rendered by him and his brothers and out of love and affection gifted the entire suit land to defendant No.1 and his three brothers in equal share and to this effect mutation was sanctioned on 24.6.1953.
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9. Defendant No.1 further claimed that mutation was sanctioned at the instance of donors in the presence .
of donees and the gift was accepted in the presence of Tehsildar and as such, allegations having been made by the plaintiff in the plaint are baseless and suit has been filed with a collusion with defendants No.2,7, 10 to 16 with of an intention to deprive defendant No.1 from the suit land.
Defendant specifically denied that the plaintiff is in rt physical possession of the suit land and claimed that he is in physical possession of the land and has developed the same by raising construction/ residential house over the same. Defendant No.1 specifically denied that the plaintiff and her husband had been looking after and serving Shiboo and Mussadi and claimed that they were looked after by him personally and thereafter also by Hari Ram, Pat Ram and Muni Lal, who came to the said village after 3-4 years. Defendant also denied the claim of the plaintiff that Shiboo and Musaddi had intended to make gift in her favour due to natural love and affection in lieu of the services rendered by her. The defendant No.1 while claiming that the plaintiff has no locus-standi to file the present suit also termed the same to be time barred.
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Defendant No.1 further claimed that donors personally got recorded their statements before the Tehsildar without .
any fear while in sound disposing mined and gifted the suit land in his as well as his brothers favour and as such, plaintiffs are estopped from filing the suit due to her own act and conduct etc. While denying the allegations of of undue advantage, fraud and misrepresentation, defendant claimed that mutation was effected in the presence of Hari rt Ram, Pat Ram and Muni Lal and same was recorded despite there being objection by co-share i.e. Ishroo. In the aforesaid background, defendant sought dismissal of the suit filed by the plaintiffs.
10. Learned trial Court on the basis of aforesaid pleadings, framed the following issues:-
1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP.
2. Whether the gift deed dated 6.4.1953 are void, illegal and not binding as alleged and consequently the order of partition dated 29.2.1992 passed by Assistant Collector 1st Grade, Kasauli is void and not binding on the plaintiff, as alleged? OPP.
3. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for? OPP.
4. Whether the plaintiff is estopped from filing the present suit by her act and conduct, as alleged? OPD.::: Downloaded on - 15/04/2017 21:41:07 :::HCHP
...9...
5. Whether the suit is not within limitation? OPD.
5A. Whether the partition order dated 29.2.1992 .
passed by A.C.Ist Grade in case No.23/9 of 90is not binding upon the plaintiff, as alleged? OPP.
5B. Whether the final order of partition, khataunies, mutation in pursuance of order of partition are wrong, illegal and void as alleged? OPP.
of
6. Relief.
11. Subsequently, vide judgment and decree dated rt 26.7.2004, learned trial Court dismissed the suit of the plaintiff and specifically held that suit is not within the limitation and the same is time barred.
12. Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 26.7.2004, passed by learned trial Court, appellant-plaintiff filed an appeal in the Court of learned Additional District Judge(Presiding Officer, Fast Track Court) Solan, which came to be registered as Civil Appeal No.13FT/13 of 2005/2004.
However, fact remains that same was dismissed, as a result of which, judgment and decree passed by the learned trial Court came to be up held. In the aforesaid background, appellants-plaintiffs approached this Court by way of Regular Second Appeal, praying therein for ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP ...10...
decreeing their suit after setting aside the judgment and decree passed by the learned Court below.
.
13. This Court vide order dated 10.1.2006 admitted the instant Regular Second Appeal on the following substantial questions of law:-
"(1). Whether the trial Court has wrongly held the suit filed by the plaintiff to be barred by of limitation, by concluding that the cause of action to challenge the gift arose from the date of the gift by ignoring the vital aspect i.e. the plaintiffs possession over the suit rt land? Has not the trial Court recorded wrong, erroneous and perverse findings by ignoring the basic principle of law of limitation?.
(2). Whether the lower Appellate Court has exceeded its jurisdiction in holding the plaintiff not to have any cause of action, when such controversy was not an issue before the trial Court? Are not the findings on point No.2 recorded by the Lower Appellate Court erroneous, arbitrary and illegal?.
(3). Whether both the Courts below have taken erroneous view of law by raising presumption to the correctness of the mutation proceedings evidencing the gift?
Have not both the Courts below taken erroneous view of law and facts by rejecting the settled proposition of law that the mutation does not confer any title? When defendant No.1 being the beneficiary under the gift was relying upon the oral gift was not it necessary for him to establish essential ingredients of a valid gift? Are not the findings of both the courts below erroneous and perverse when they raised presumption of truth to the mutation proceedings which had no legal value?
(4). Whether the Courts below have wrongly applied the principles of estoppel in ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP ...11...
rejecting the claim of the plaintiff by observing that after the exchange, the defendants made some improvements over the suit land, ignoring the vital aspect that .
the exchange was also subject matter of the challenge in the suit which pointed out the fact of fraud and misrepresentation exercised by defendant No.1 in getting the mutation sanctioned. Even if the donors, who were not aware of the correct mutation proceedings did not assail the said mutation during the life time, was the same an impediment for the plaintiff to file the suit?.
of (5). Whether the findings of the trial Court that the plaintiff had no right to challenge the mutation of gift which was effected in the year, 1953, prior to the commencement of rt the Hindu Succession Act, 1956 are illegal, erroneous and perverse?.
14. Mr. Bhupinder Gupta, learned Senior Advocate duly assisted by Mr. Janesh Gupta, Advocate representing the appellants-plaintiffs, vehemently argued that the judgments passed by both the Courts below are not sustainable as the same are not based upon the correct appreciation of evidence as well as law and as such, same deserve to be quashed and set-aside. Mr. Gupta, while referring to the judgments passed by both the Courts below, forcibly contended that same are highly unjust, illegal, arbitrary, against the facts and law and as such, same cannot be allowed to sustain. Mr. Gupta, further contended that since no issue was framed on the question ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP ...12...
as to whether the plaintiff has no cause of action to institute the suit and the learned trial Court, nowhere held .
that the plaintiff did not have any cause of action to file the civil suit, findings returned by the learned trial Court that the plaintiff had no cause of action is erroneous and as such, judgment passed by the learned Appellate Court of deserve to be quashed and set-aside. Mr. Gupta, while referring to issues No.1, 2, 3, 5-A and 5-B, contended that rt learned trial court below acted with material illegality in clubbing aforesaid issues and disposing of the same by common discussion because issues as have been referred above could not be decided together and as such, judgment passed by learned trial court below being contrary to facts deserve to be quashed and set-aside. As per Mr. Gupta, learned First Appellate Court below ought to have exercised the jurisdiction for correcting such illegality and irregularity committed by trial Court while deciding all the issues together and as such, failure of its part to exercise jurisdiction vested in it has rendered the impugned judgment and decree illegal and erroneous.
15. Mr. Gupta, further argued that both the Courts below placed undue reliance on the mutation of the gift ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP ...13...
without taking into consideration the settled proposition of law that the mutation does not confer the title. No .
presumption to the mutation proceedings was available to the defendants in order to contest the claim of the plaintiffs-appellants, specifically when gift was result of fraud and misrepresentation and as such, Courts below of ought to have gone into the question of the validity of the gift and both the Courts below accepted the claim of the rt defendants merely on the fact that husband of the plaintiff Smt. Hemawati was also one of the donees alongwith his brothers.He further argued that there was no presumption of truth attached to the claim of the defendants about the gift, which was made through mutation only, rather onus was heavily on the defendants to establish such fact that such gift was made and the mutation was attested in a legal and lawful manner Mr. Gupta, while concluding his arguments, stated that it was not sufficiently proved as to what was the consideration with the donors to have made a gift to such persons, who were not the natural successors and learned trial Court failed to take essential requirements/ ingredients of gift into consideration especially when the same was claimed to be oral. There was no evidence of delivery of ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP ...14...
possession nor the acceptance of gift by the donees. In the aforesaid background, Mr. Gupta, prayed that the suit of .
the plaintiffs deserve to be decreed after setting aside the judgment and decree passed by both the Courts below.
16. Mr. G.D.Verma, learned Senior Advocate duly assisted by Mr. B.C.Verma, Advocate, supported the of judgments passed by both the Courts below. Mr. Verma, while referring to the judgments passed by both the Courts rt below, vehemently argued that same are based upon the correct appreciation of the evidence available on record and as such, there is no scope of interference, whatsoever, of this Court and both the Courts below have dealt with each and every aspect of the matter very meticulously.
17. With a view to refute the aforesaid contention having been raised by the learned counsel for the appellants-plaintiffs, Mr. Verma, strenuously argued that the suit of the plaintiff was rightly dismissed by the Courts below on the ground of limitation because admittedly there is no explanation for delay in laying challenge, if any, to the mutation, which was attested in favour of defendant No.1 on 26.4.1953 by late Sh. Shiboo and Mussadi. Mr.Verma, while inviting the attention of this ::: Downloaded on - 15/04/2017 21:41:07 :::HCHP ...15...
Court to the suit having been filed by the plaintiffs stated that same was filed in the year 1993 i.e. after 40 years of .
attestation of mutation and as such, there is no illegality and infirmity in the judgments passed by both the Courts below. Mr. Verma, further argued that for the sake of arguments, if it is presumed and accepted that the factum of with regard to mutation, which was effected in the year 1954 came to the notice after receipt of notice from Assistant Collector 1st Grade Kasauli in the partition rt proceeding, even then suit is time barred because even partition was effected and concluded in the year, 1990, whereas suit was filed in the year, 1993. Mr. Verma, further stated that apart from above, it is admitted fact that Shiboo was alive till the year, 1965 and there is no document suggestive of the fact on record that during his life time he raised any objection, if any, qua the mutation No.66, dated 26.4.1953 and as such, it can be safely presumed that Shiboo and Mussadi had made gift in favour of defendant No.1 as well as his brothers.
18. Mr. Verma, while concluding his arguments, contended that it stands duly proved on record that at the time of attestation of the aforesaid mutation in favour of ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...16...
the defendant, husband of the plaintiff, who is brother of defendant No.1 was also present and he was also given .
equal share in the property gifted by Shiboo and Mussadi.
Mr. Verma, stated that since husband of plaintiff namely Hari Ram was also given share in the property allegedly gifted in favour of defendant by Shiboo and Mussadi, it of cannot be accepted that plaintiff, who was the wife of Hari Ram had no knowledge of the same and factum of rt mutation only came to her knowledge when summons in partition proceedings were received. While praying for dismissal of the present appeal, Mr. Verma, contended that this Court has very limited power while exercising power under Section 100 CPC to re-appreciate the evidence, especially in view of the concurrent findings of fact of law recorded by the Courts below. In this regard, he placed reliance on the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, herein below:-
"16. Based on oral and documentary evidence, both the Courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...17...
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 plaintiffs' .
right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., 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."
of
19. I have heard learned counsel for the parties and have gone through the record of the case.
rtSubstantial questions of Law No.1 to 5.
20. It clearly emerged from the record that by way of Civil Suit, which is subject matter of the present case, plaintiff sought declaration to the effect that gift deed dated 6.4.1953 and mutation No.66, dated 26.4.1953 are void, illegal and are not binding upon the rights of the plaintiff. Plaintiff further claimed that cause of action in her favour arose from the date of knowledge of illegal report and mutation in the month of June, 1990 when the summon was received by the husband of the plaintiff.
Defendant No.1 with a view to refute the aforesaid claim of the plaintiff specifically claimed that Shiboo and Mussadi were issueless and they being satisfied with the services rendered by him as well as his brothers, gifted entire suit ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...18...
land in their favour out of love and affection in equal share and mutation to this effect was sanctioned in their favour .
on dated 26.4.1953. It is well settled that presumption of truth is attached to the mutation and same deserve to be believed save and except same is refuted by cogent and convincing evidence suggestive of the fact that same was of not attested in accordance with the law. Perusal of mutation Ex.D-8 clearly suggests that same was attested rt on 26.4.1953 in the presence of donors namely Shiboo and Mussadi. It further suggest that at the time of attestation, both donors were present before the revenue officer. The mutation clearly suggests that since Shiboo was unable to walk to the place of attestation of mutation, he was taken in basket to the revenue authorities. Most importantly donees i.e. defendant No.1, Pat Ram and Muni Lal and Hari Ram i.e. husband of plaintiff were also present. It also suggests that Dharam Singh Lamberdar was also present, who recognized Mussadi and Shiboo. It also emerged from the aforesaid mutation that at the time of attestation one co-sharer namely Kirpu Ram was also present, who objected the mutation and gift in favour of the defendant.
Kirpu Ram's objection was that if the gift is allowed to be ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...19...
made in favour of defendant No.1 and his brothers, property would go out of the family. He also expressed his .
willingness to renders services to the donors but order of the mutation suggests that donors Shiboo and Mussadi stated before the revenue officer that they had no faith in Ishroo and had he rendered services to them they would of have not decided to give the property to defendant No.1 and his brothers. In the aforesaid background, mutation rt was attested in favour of defendant No.1. It clearly emerge from the perusal of Ex.D-8 that donors namely Mussadi and Shiboo had sufficient time and opportunity to state before the attesting officer that they are being deceived by the defendant. Similarly, they could always state before the attesting officer i.e. Tehsildar that they intended to gift the property to plaintiff Hemawati and not to Seesh Ram and others but in the absence of any such statement having been made by Shiboo and Mussadi, this Court sees no illegality and infirmity in the findings returned by both the Courts below that on the basis of gift made by Shiboo and Mussadi, mutation was attested in favour of defendant, as a result of which, they become owners in possession of the suit land.
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21. In the instant case, plaintiff with a view to prove contents of her plaint examined herself as PW-1 and .
stated that she after her marriage was called by her uncles to village Janjoha to look after them and thereafter she and her husband settled there. She further stated that she was told by her uncles that they would gift the land to of her. In her cross-examination, she admitted that defendant No.1 and his brothers had been visiting to her rt uncles but they never gifted the land to them. In her examination-in-chief, she further stated that her uncles had mutated the land in her favour and she was never told by them that they ever gifted land to her husband and his brothers. But interestingly, in cross-examination, no question was put to the contesting defendant regarding service, if any, rendered by her to serve the deceased Mussadi and Shiboo. Similarly, no suggestion was put to the defendant that all the four brothers on whose favour the land was mutated ever shifted to village Janjoha and settled there.
22. Close reading of aforesaid statement having been made by the plaintiff, nowhere proves her case because she herself stated that she was told by her uncles ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...21...
that they would gift the land to her. If for the sake of arguments, aforesaid assertion having been made by her .
is accepted, it cannot be concluded that land, if any, was got mutated in her favour by the deceased Shiboo and Mussadi. She categorically stated before the Court below that her uncles had mutated the land and they never told of her that the land was ever gifted to her husband and his brothers, meaning thereby mutation, if any, was attested rt on the statements having been made by late Sh. Shiboo and Mussadi and as such, this Court sees no dispute, if any, with regard to attestation of mutation dated 26.4.1953. The dispute is only that whether the mutation No.66, dated 26.4.1953 was entered in favour of the plaintiff or in defendant No.1 and his brothers.
23. PW-2, Dharam Singh in his examination-in-
chief stated that Smt.Hewawati settled with the deceased Shiboo etc and when Shiboo was unable to walk he himself stated that he has made Hibba in favour of the plaintiff namely Hemawati. He further stated that Shiboo never made Hibba in the name of other persons. But in cross-examination, he stated that about 40 years back Shiboo had stated that he had made Hibba in favour of ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...22...
Hemawati. He further stated that when he went to the house of Shiboo, he discussed the aforesaid factum to him .
in the presence of the husband and children of plaintiff Hemawati.
24. PW-4, Tula Ram stated that he saw possession of Hemawati over the suit land. Perusal of aforesaid of statements having been made by PW-1, PW-2 and PW-4, nowhere support the case of the plaintiff as far as of the rt attestation of mutation No.66 is concerned because none plaintiff witnesses have stated whether the mutation was attested in accordance with law or not, rather PW-2 categorically stated that Shiboo had disclosed factum of his intention to make Hibba in favour of the plaintiff in the presence of his husband.
25. Bare perusal of the evidence led on record clearly suggests that plaintiff failed to lead any positive evidence on record to suggest that mutation No.66 attested in favour of defendant No.1 and his brothers was result of fraud. Moreover, it is not understood that when Shiboo and Mussadi had gifted the land in favour of defendant No.1 as well as his brothers including Hari Ram, who happened to be husband of the plaintiff, how factum ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...23...
of attestation of mutation No.66 never came to the knowledge of the plaintiff, as claimed by her. Moreover, .
this Court finds that it is admitted the case of the parties that aforesaid Shiboo remained alive till 1965 and if the version of the plaintiff is taken to be correct that they were cheated and defrauded by the defendant, Shiboo and of Mussadi during their life time had sufficient time to lay challenge, if any, to the gift deed on the basis of which rt mutation was attested in the year, 1953. In the instant case, after execution of the mutation, Shiboo remained alive for approximately 12 years, but no challenge was laid to the order of mutation by either of the donors or by the plaintiff, who claimed that she used to live with Mussadi and Shiboo during their life time. Moreover, there is no explanation that why even after the death of Shiboo and Mussadi, plaintiff failed to check the revenue record or papers whether she has been entered as owner in possession of the suit land on the basis of mutation allegedly got executed in her favour by her uncles late Sh.Shiboo and Mussadi.
26. Apart from above, in her cross-examination, she categorically admitted that she and her husband lived ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...24...
together and had good relation. She also admitted that her husband expired about three years back i.e. 1993. It is not .
disputed that land was gifted in favour of plaintiff's husband and his three brothers, but it is not understood that why her husband, who had good relation with her never disclosed the factum of gift of land in his favour as of well as his three brothers including defendant No.1.
Similarly, perusal of Ex. DX i.e. mutation clearly suggests rt that husband of the plaintiff alongwith other brothers including the defendant No.1 were present at the time of attestation of the mutation and as such, learned Courts below rightly concluded that the plaintiff had knowledge that the land was mutated in favour of her husband and his brothers.
27. After carefully examining the entire evidence available on record, this Court has no hesitation to conclude that the plaintiff remained silent for more than 40 years and thereafter on the death of her husband filed the suit when the land was partitioned in some partition proceedings. Similarly, this Court finds that version having been put forth by plaintiff that factum of attestation of mutation in favour of defendant No.1 only came to her ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...25...
knowledge in 1991 when summons were received by her husband in partition proceedings also does not appear to .
be correct. As have been discussed above, it was in the knowledge of her husband that he has been also given equal share in the suit land by Shiboo and Mussadi, rather it appears that pursuant to summons issued by the of Assistant Collector 1st Grade Kasauli, plaintiff as well as her husband contested the partition proceedings but after rt failing to succeed in the same filed suit in the year, 1993.
After carefully examining the reply filed by the other defendants this Court sees substantial force in the stand of defendant No.2 that the present suit was collusive having been filed by the plaintiff and his brothers Pat Ram and Munni Ram etc.
28. Perusal of rapat Rojnamcha Ex.D-2 and Ex.PW3/A clearly suggest that Shiboo personally visited the Patwari and got his statement recorded, wherein he has stated that the land is owned and possessed by him and his brother relating to village Janjoa, Odda Majhari, Baghwari, which is under mortgage be gifted in favour of Sessh Ram, Muni Ram, Hari Ram and Pat Ram. Perusal of the plaint further suggests that plaintiff staked claim ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...26...
against entire land of village Janjoha i.e. about 52 bighas on the basis of the mutation allegedly having been .
attested in her favour on the statement having been given by the deceased Shiboo and Mussadi, gifting entire property in her favour, whereas, it stands duly proved on record that deceased Mussadi and Shiboo were owner in of possession of 4/18th shares, which was duly mentioned in mutation Ex.D8, which was entered in the year, 1953. It rt further emerged from the record that donors Shiboo and Mussadi and donees Seesh Ram, Hari Ram , Pat Ram and Muni Lal were present in the ' Jalsaam', wherein objector Kirpur Ram son of Devi Singh and Lamberdar Dharam Singh were also present, who identified Mussadi and Shiboo and they also got their statement recorded that they gifted their share in favour of Seesh Ram, Muni Ram, Hari Ram and Pat Ram, and possession was already delivered due to the reason that they served them while they were at a verge of starvation and as such, possession was entrusted to them. This document further suggests that objections were raised by the co-sharers that they would serve aforesaid Mussadi and Shiboo, but the concerned Tehsildar rejected the objection and attested ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...27...
the mutation Ex.D-8 in favour of defendant No.1 and his brothers on 26.4.1953.
.
29. During the proceedings of the case, this Court could lay its hand to overwhelming documentary evidence suggestive of the fact that Shiboo and Mussadi had 4/18 share in the land total measuring 52 bighas at village of Janjoha, which they had gifted in favour of defendant No.1 and his brothers. On the basis of documentary evidence rt available on record, it can be safely inferred that gift was in favour of various person including husband of the plaintiff, who admittedly till his death resided with the plaintiff and as such, this Court sees no force in the aforesaid contention put forth on behalf of the plaintiff that factum with regard to mutation came to the knowledge of the plaintiff in the year, 1991 when summons in partition proceedings were served upon him. Even if, aforesaid arguments is accepted, there is nothing on record that even after receipt of summons in partition proceedings, steps, if any, were ever taken by plaintiff and her husband to lay challenge, if any, to the gift on the basis of which mutation Ex.D-8,dated 26.4.1953 was effected. It is only after the death of her husband, who admittedly expired ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...28...
three years prior from filing of the present suit, plaintiff filed suit laying challenge therein to the mutation as well .
as gift. Since, husband of the plaintiff was aware of the mutation having been effected in favour of defendant No.1 as well as his other brothers including him, he never laid challenge, if any, to the same and it is only after his death, of plaintiff with a view to grab the land, filed the suit.
Though, plaintiff by way of suit claimed that gift as well as rt mutation is a result of fraud and misrepresentation by defendant No.2, but there is no evidence led on record by her suggestive of the fact that same are result of fraud and misrepresentation, hence, this Court sees no illegality and infirmity in the judgment passed by both the Courts below.
30. Similarly, after carefully examining the pleadings as well as evidence on record , this Court also sees no reasons to interfere in the findings returned by the Courts below that plaintiff had no cause of action to challenge the gift made in favour of defendant No.1 and his brothers by Shiboo and Mussadi because there is no document adduced on record suggestive of the fact that plaintiff in any manner was entitled to the property of late ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...29...
Sh.Shiboo and Mussadi. Save and except the averments contained in the plaint that Shiboo and Mussadi were her .
uncles and they had told her that in lieu of her services rendered to them they would made Hibba in her favour, no document has been led on record to prove that otherwise also she is/ was entitled to suit property. Her entire claim of is based upon the alleged promise made to her by late Sh.Shiboo and Mussadi that they would gift their land to rt her. Though, PW-2 has stated that Shiboo and Mussadi had disclosed that they would made Hibba in favour of the plaintiff but same was not sufficient to conclude that actually Shiboo and Mussadi made Hibba in favour of the plaintiff namely Hemawati. There is no evidence led on record by the plaintiff to demonstrate that since she was the only legal heir of deceased Shibbo and Mussadi and in natural succession she was the only person to inherit the property, if any, of deceased Shiboo and Mussadi. Neither there is any documentary evidence in support of her being natural legal heirs of deceased Shiboo and Mussadi nor anyone of her witness deposed before the Court that in natural succession, she was only entitled to the property of Shiboo and Mussadi.
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31. Defendant in written statement specifically admitted that husband of the plaintiff had got equal share .
in the property gifted by Shiboo and Mussadi and to the same effect mutation was effected on 26.4.1953, meaning thereby on the basis of aforesaid mutation, name of husband of the plaintiff was entered in the revenue record of and it can be presumed that qua his share he alongwith her wife i.e. plaintiff was in possession of the same and as rt such, version of PWs, 1, 2 and 4 to this extent can be accepted that they saw the possession of the plaintiff Hemawati on the suit land, but certainly there is nothing in their statements with regard to the extent of land, which was allegedly in the possession of plaintiff. Since, there is no document on record suggestive of the fact that Shiboo and Mussadi had taken steps to keep promise, which they allegedly made to plaintiff to gift their land in her favour, this Court sees no illegality and infirmity, especially in view of the discussion made herein above in detail, in the findings returned by the learned trial Court that there was no cause of action, if any, in favour of the plaintiff to file the suit.
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32. At the cost of repetition, it may be stated that presumption of truth is always attached to the mutation .
and it does not confer any title. But in the present case, as has been discussed in detailed, there is overwhelming evidence adduced on record by defendant No.,1 that the gift was made in his favour and his brothers as well as of plaintiff on the basis of which, mutation was attested and as such, there is no force in the contention having been rt raised on behalf of the plaintiff that both the Courts have taken erroneous view of law while placing reliance on the oral gift, This Court is of the view that oral deed of gift was made by Shiboo and Mussadi, on the basis of same mutation Ex.D-8 was attested by the revenue officers in the presence of Shiboo and Mussadi, who had categorically stated before the revenue authorities that they intended to make gift/Hibba in favour of defendant No.1 and his brothers, meaning thereby oral gift was duly proved in accordance with the law and Courts below have rightly came to the conclusion that the defendant successfully proved that Shiboo and Mussadi had made oral gift in his favour as well as his brothers. Perusal of Ex.D-8, clearly suggests that oral gift was made in favour ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...32...
of defendant but admittedly same was made by Shiboo and Mussadi in favour of defendant No.1 and his brothers.
.
33. Since, plaintiff failed to prove that oral gift was result of fraud and misrepresentation exercised by defendant No.1 on Shiboo and Mussadi and exchange of land was also subject matter of the challenge in the suit, of this Court sees no illegality in applying the principles of estoppel against the plaintiff. In the present case, rt defendant by leading cogent and convincing evidence proved on record that after gift having been made in his favour by Mussadi and Shiboo, he made some improvements over the suit land. He specifically pleaded in the written statement that he made improvements but interestingly, neither plaintiff nor any of her witness refuted aforesaid assertion having been made by the defendant in his written statement with regard to the improvement over the suit land. In his written statement, defendant specifically raised the plea of estoppel. Perusal of mutation dated 26.4.1953, clearly suggests that on the same day mutation of exchange of Kirpu's share was also attested. It is also not in dispute that Kirpu is joint owner of the suit land in village Janjoha, but they were joint owner ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...33...
in possession of land at ora Majhari, Baghwari. Kirpu exchanged his land in mauza Janjoha with defendant No.1 .
and others for their share of land in Mauja Bhagwari and Ora majhari and to this effect entry was made on 10.4.1953 before the patwari vide entry No.247 Ex.D-1 i.e. mutation of exchange, which was ultimately attested on of 26.4.1953.
34. Hence, this Court sees no illegality and infirmity rt in the findings returned by the Courts below that defendants were able to prove that they made improvement over the suit land. In the instant case, defendant specifically raised objection with regard to limitation and specifically stated that the plaintiff is estopped from filing the present suit due to her own act and conduct. Defendant specifically stated that Hari Ram husband of the plaintiff was well educated was serving in CRI Kasuali, meaning thereby he was fully aware of attestation of mutation No.66, which was admittedly carried out in his presence. Interestingly, plaintiff nowhere refuted the claim of the defendant that attestation was not effected in presence of her husband late Sh.Hari Ram, who was well educated. Since, plaintiff and her husband had ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...34...
full knowledge of attestation of mutation, explanation having been rendered by the plaintiff for not laying .
challenge to the mutation during life time of Shiboo and Mussadi and thereafter during life time of her husband cannot be accepted and same was rightly rejected by the Courts below. Since, there is no explanation/evidence of adduced on record by the plaintiff to prove her right, if any, qua the land of late Sh. Shiboo and Mussadi, no fault rt can be found with the findings returned by the Courts below.
35. This Court is of the view that she had no right to challenge the mutation of gift whether it was effected in the year, 1953 or after commencement of Hindu Succession Act, 1956 in view of the facts and circumstances narrated hereinabove.
36. Consequently, in view of the detailed discussion made hereinabove, this Court sees no illegality and infirmity in the well reasoned findings returned by both the Courts below that the suit filed by the plaintiff is barred by limitation and plaintiff had no cause of action to challenge the same after inordinate delay. Similarly this Court is convinced and satisfied that the defendant successfully ::: Downloaded on - 15/04/2017 21:41:08 :::HCHP ...35...
proved on record that late Sh. Shiboo and Mussadi had executed oral gift deed in their favour, on the basis of .
which, mutation No.66 was effected in the presence of donors namely Shiboo and Mussadi and as such, both the Courts rightly concluded that presumption of truth is attached to the mutation proceeding. Accordingly, the of present appeal fails and same is accordingly dismissed.
Interim directions, if any, are vacated. All rt miscellaneous applications are disposed of.
(Sandeep Sharma )
December 5, 2016 Judge
(shankar)
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