Himachal Pradesh High Court
Reserved On: 26.03.2025 vs Nobat Ram Bawa(Since Deceased) on 8 April, 2025
2025:HHC:9577 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.213 of 2002 Reserved on: 26.03.2025 Decided on:08.04.2025 Vivek Kumar Bawa & others ...Appellants Versus Nobat Ram Bawa(since deceased) through LRs & others ...Respondents Coram Hon'ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? Yes For the appellants: Mr. K.D. Sood, Senior Advocate with Mr.Het Ram Thakur, Advocate For the respondents: Mr. Nitin Thakur, Advocate, for respondents No.2(a) and 2(c).
Mr. Dushyant Dadwal, Advocate, for respondents No.3, 4(a) and 4(b).
Satyen Vaidya, Judge This Regular first appeal has been filed under Section 96 of the Code of Civil Procedure against the judgment and decree passed by learned Additional District Judge, Mandi on 24.08.2002 in Civil Suit No.3/2002 (95), whereby the suit of the appellants/plaintiffs has been dismissed.
2. The appellants herein were the plaintiffs and the respondents herein were the defendants before learned trial Court. The parties hereinafter shall be referred by the same status as they held in the first Court.
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3. The plaintiffs filed a suit for the following reliefs:
"8. That the plaintiffs therefore pray for decree for declaration that the plaintiffs are the owners of land and buildings comprising Khata Khatauni No.22/59min. Khasra Nos. 134,135,2321/136, 1203, 1204, 1205, 1205/1, 1206, 1207, 1208 and 1209, Kitas 11, measuring 3011-0 sq yards according to the Jamabandi for 1993-94 of Mauja Jogindernagar, Pargana Jitpur, Tehsil Jogindernagar, Distt Mandi, H.P. and are entitled to possession of Kh. No 134 and 135 measuring 2-2 sq yards and 10-6 sq yards of open land and Kh.No. 2321/136 measuring 421.4 sq yards having one shop in the ground floor and 4 rooms in the first floor and one room/residential house in the first floor of Kh. No.1204 measuring 50-5 sq yards and 11 rooms out of the 22 roomed house on Khasra No.1206 measuring 299-3 sq yards, as shown in red in the plan attached with the plaint and a decree for mesne profits of Rs.1 lakh for use and occupation of premises in possession of the defendants belonging to the plaintiff and future mesne profits Rs. 2500/- per month from the date of suit till date of delivery of the premises to the plaintiffs by the defendants and also a decree for permanent injunction restraining the defendants from interfering with the ownership of the plaintiffs and their possession on the land and buildings described in para 1 of the plaint. Such other relief be also allowed to the plaintiffs which the court in the facts and circumstances of the case deems fit and proper."
4. The background facts in nutshell are that one Mangal Dass had two sons named Om Parkash (father of plaintiffs) and Nobat Ram (defendant No.1). Mangal Dass was owner-in- 3 possession of the land comprised in Khata Khatauni No.22/59min. Khasra Nos. 134,135,2321/136, 1203, 1204, 1205, 1205/1, 1206, 1207, 1208 and 1209, Kitas 11, measuring 3011-0 sq yards (for short, 'the suit land'). He relinquished all his rights qua the suit land in favour of his wife Smt. Chinti Devi. A daily diary report was recorded evidencing such transfer on 28.02.1954 and the mutation was attested on 03.05.1954 and thereafter Smt. Chinti Devi was recorded as owner-in-possession of the suit land.
5. Mangal Dass died in the year 1964.
6. Chinti Devi executed a Will in favour of her son Om Parkash (father of plaintiffs) on 06.09.1973. After the death of Smt. Chinti Devi, the mutation of inheritance with respect to suit property was attested in favour of Om Parkash on 08.06.1976. On the death of Om Parkash, the plaintiffs inherited the suit land and to this effect mutation was attested on 01.05.1982.
7. Plaintiffs filed the suit on 15.09.1995 with the averments that they were the owners-in-possession of entire suit land. As they were minor at the time of death of their father, their uncle defendant No.1 started looking after the suit property and in such process occupied a substantial portion thereof. On attaining the majority, the plaintiffs asked the defendants to vacate the suit property and, on their refusal to oblige, the suit was filed. 4
8. The defendants contested the suit by filing a written statement. It was averred that Mangal Dass had purchased the suit property from Mahant Hari Gir in 1950. It was admitted that in 1954, the suit property was orally transferred by Mangal Dass to Chinti Devi by way of relinquishment (Tamleek). Chinti Devi executed the Will in favour of Om Parkash in the year 1965, but it was cancelled in the year 1972 for the reason that Om Parkash was habitual drunkard. In 1973 again Om Parkash managed to procure a Will from Chinti Devi by deceit and fraud.
9. It was alleged that the original relinquishment (Tamleek nama) was void and ineffective for the reason that it was not by way of registered instrument and also was a benami transaction.
10. The defendants further alleged that the suit property did not exclusively belong to Mangal Dass. As per the defendants, the suit property had been purchased from the funds of joint Hindu Family and Hindu Undivided Family of late Shri Mangal Dass. It was also submitted that a business in the name of Mangal Dass Nobat Rai was being run as a joint family business and suit property was purchased from the funds acquired from such business. In addition, it was submitted that the suit property was ancestral and coparcenary property and for such reason also Mangal Dass could not have transferred the same to Chinti Devi. 5 It was further the case of the defendants that Om Parkash was a habitual drunkard and was not in a position to run the business. He did not have any funds to purchase the suit property or make improvements thereto. Similarly, Chinti Devi also did not allegedly possess any funds to build or acquire any property. 11 The defendants also pleaded that after the death of Om Parkash, the shop was given to uncle (Mausa) of the plaintiffs, who had sublet the same to Jagat Ram. It was defendant No.1, Nobat Rai, who took back the possession of shop from Jagat Ram after payment of premium. According to defendants, the plaintiffs were looked after by them. Defendant No.1, Nobat Rai, had started his independent business in 1958, but, the character of suit property had not changed. The defendants also claimed that Om Parkash was in debt and the defendants had discharged such liability of Punjab and National Bank to the tune of Rs.11,926.80.
12. On the basis of pleadings of parties, following issues were framed:
"1. Whether the plaintiffs are owners of land and building khata khatauni No 22/59 min, measuring 3011.0 Sq. yards ? OPP
2. Whether the plaintiffs are entitled to possession of kahara Nos 134,135 and 2321/136 consisting of land and one shop and four rooms and also 11 rooms from the house built on khasra No 1206 6 and 4 rooms in the house on Khasra No 1204 as mentioned in para 8 of the plaint 7 OPP
3. Whether the plaintiffs are entitled to the mense profits/used and occupation charges from the defendants, if so, to what extent and from whom? O.P. Parties
4. Whether the plaintiffs are entitled to a decre of permanent injunction against the defendants ? OPP
5. Whether the suit is not maintainable as alleged ? OPD
6. Whether the property in dispute is not the exclusive property of the defendants as alleged ? OPD
7. Whether the will executed by Smt.Chinti Devi and Om Parkash are void an alleged? If so, its effect ? CPD
8. Whether the suit property is to devolve by way of intestate succession as alleged? Amended issue No.6 Whether the property in dispute is not the in exclusive property of the plaintiffs as alleged? OPD.
9. Relief."
13. All issues except issue No.5 were answered in negative. Accordingly, the suit of the plaintiffs was dismissed by learned trial Court by holding that the plaintiffs had not produced on record the daily diary report (Rapat Rojnamcha Wakyati) dated 28.02.1954 and in absence of such document there was no direct evidence available on record to prove that the suit property was transferred absolutely by Mangal Dass in favour of his wife Chinti Devi. As per learned trial Court, since the aforesaid document 7 was not on record, the Court was not able to construe real intention of the donor. Adverse inference has also been drawn against the plaintiffs to the effect that had they produced the "Rapat Rojnamcha Wakyati", it would not have supported their claim. Further, learned trial Court held that though, the entries in revenue record support the plaintiffs, but such entries could not be construed to be document of title. Based on such reasons, the suit was dismissed.
14. I have heard learned counsel for the parties and have also gone through the record carefully.
15. In the written statement filed by the defendants they had not disputed the factum of oral transfer of suit land by Mangal Dass in favour of Chinti Devi in the year 1954 by way of "Tamleek" (relinquishment). Rather, the defendants had alleged such transfer to be not valid for the reasons firstly, that it was not by way of registered instrument, secondly, Mangal Dass could not have made such transfer of the property which allegedly belonged to HUF and lastly, that it was a benami transaction with a purpose to avoid the creditors.
16. In view of above stand of the defendants, learned trial Court has completely misdirected itself to say that the transaction of relinquishment (Tamleek) was not proved. Even, the finding to the effect that the real intent of the donor could not 8 be inferred in absence of "Rapat Rojnamcha Wakyati" cannot be sustained for the reason that Mangal Dass remained alive for about 10 years after transferring of suit land in favour of his wife. During his lifetime, Mangal Dass did not raise any questions with respect to such transfer. This was sufficient to infer the intent of Mangal Dass. It was not the case of the defendants that Mangal Dass had been rendered incapacitated either physically or mentally.
17. Further, the mutation stood attested in favour of Chinti Devi on 28.02.1954. The mutation order has been proved on record as Ext. DW-5/C, which records that the mutation was attested in presence of Mangal Dass and on his asking. The entries in revenue records had been updated and reflected the factum of transfer in favour of Chinti Devi as she was shown to be the owner-in-possession of suit land. Reference can be made to the jamabandi Ext.PW-6/7, Ext.PW6/8 & Ext.PW6/9. Moreover, the defendants never challenged the aforesaid transfer and the subsequent entries in the records of right except by raising a defence in the suit filed by the plaintiffs in the year 1995.
18. It also cannot be ignored that the defendants even admitted the execution of a Will by Chinti Devi in favour of Om Parkash in the year 1965, which according to them was revoked in 1972. Admittedly no challenge was ever made by the 9 defendants to said Will on the ground that Chinti Devi had no title to the suit land.
19. The objection of the defendants to transfer of title from Mangal Dass to Chinti Devi being without written and registered instrument also deserves to be rejected. In the year 1954, the transfer could be made orally. The provisions of Sections 54, 107 and 123 of the Transfer of Property Act were made applicable in the districts of Chamba, Sirmaur, Mahasu, Kinnaur, Mandi and Bilaspur of the State of Himachal Pradesh w.e.f. 07.12.1970. The suit land was in Joginder Nagar and part of Mandi district.
20. In Dasondhi Ram & another v. Hans Raj, ILR (1976) (HP) 208, it was held as under:-
"6. The case has been argued by Shri S. Malhotra for the appellants with his usual diligence and fairness, and he has said all that could be said in favour of the appellants but I am not satisfied that this appeal can succeed. On an appraisal of the evidence on the record it is abundantly clear that Rati Ram and Prem Singh made an oral sale of the land on June 18, 1967, in favour of the respondent. On that date, it is not disputed, the Transfer of Property Act did not apply and an oral sale of immovable property of a value exceeding Rs. 100 was valid. The evidence also discloses that the respondent was put in possession of the land. That circumstance, taken along with the other evidence on the record, disproves the case of the appellants that the 10 respondent had paid Rs. 1,000 only and had not paid the balance of Rs. 800. On the oral sale being affected, the respondent informed the Patwari Halqa accordingly and consequently entries were made in the revenue record. When the subsequent sale deed dated February 8, 1968, was executed by the landowners in favour of the plaintiffs, it is significant that the Girdawari entries made in favour of the respondent were cancelled without notice to him. It is urged on behalf of the appellants that the oral sale was effected by Rati Ram and Prem Singh, two only of the entire body of land-owners, and therefore, was ineffective in law. The lower appellate court has however, referred to material on the record to show that all the landowners must be taken to have agreed to the oral sale, especially having regard to their conduct in the proceeding and to the relationship in which they stood to each other. The plea that the remaining landowners cannot be said to have admitted the oral sale does not have force, and the circumstance that this were not specifically put to them does not help the case of the appellants.
21. The aforesaid view was upheld by a Division Bench of this Court vide judgment dated 28.11.1984 passed in LPA No.66 of 1975, 1985 S.L.J. 297, by holding as under:
"7. Adverting to the second contention that the plaintiffs were bonafide purchasers of the land in dispute, it may be pointed out that at the relevant time the Transfer of Property Act was not applicable and an oral sale by mutation was permissible. An entry in the 'Roznamcha-vakiaty' regarding the oral sale was reflected at the instance of the land-owners on June 11 18, 1967. A mutation of sale was also attested in favour of the defendant in a general meeting. Simply because the subsequent sale in favour of the plaintiffs was made by a registered deed does not give a preferential right to the plaintiffs.
22. Further in RSA No.197/1999, titled Rajnesh Kumar Sood & others vs. Surinder Kumar & others, decided on 22.09.2010, this Court held as under:
"21. A bare reading of this provision shows that an exchange has to be made in the same manner as is provided for a sale. When in 1970, a sale could be made orally, there is no reason why the exchange could not have been done orally. Reference may be made to a judgment of Punjab and Haryana High Court in Paramjit Sigh versus Ratti Ram, AIR 2005 Punjab and Haryana 4 and a judgment of this Court in Gulab Singh & others versus Dilbaru & another, AIR 1989 Himachal Pradesh 23, which both lay down that oral exchange could be effected between persons residing in such areas."
23. Thus, in view of admission made by the defendants in the written statement coupled with the other attending circumstances proved on record, as discussed hereafter, the transfer of the suit land by Mangal Dass in favour of Chinti Devi, by way of oral relinquishment, was duly proved. The challenge to such transfer by the defendants on the ground that it was not by way of registered instrument also had no legal backing. 12
24. As noticed above the defendants did not raise any objection to the first Will of Chinti Devi. As regards the second Will, the defendants have again admitted the execution of subsequent Will by Chinti Devi in favour of Om Parkash executed in the year 1973. They have laid cursory challenge by alleging said Will to be procured by Om Parkash by deceit and fraud. No details of such deceit and fraud have been pleaded. The plaintiffs examined PW-3 Shir Rattan Gautam, who produced on record an attested copy of Will dated 06.09.1973 of Chinti Devi Ext. PW-3/1. It was stated by this witness that at the relevant time only one copy of Will was prepared. The plaintiffs have also examined PW-4 Man Chand, who being one of the marginal witnesses of the Will, deposed that Chinti Devi had executed a Will and had appended her thumb mark in his presence, which was registered thereafter. This witness was cross-examined by the defendants, but without any suggestion that the Will was not executed by Chinti Devi.
25. Indisputably, the suit land was shown to be inherited by Om Parkash on the basis of Will dated 06.09.1973. A copy of such document has been placed on record as Ext. PW-6/2 dated 08.06.1976. It being so, again the question arises as to the veracity of defence subsequently raised by the defendants. No challenge was made at any stage by the defendants or any other 13 person to the inheritance of suit property by Om Parkash and after his death by the plaintiffs, which fact also came to be recorded in the revenue records after attestation of mutation in this behalf.
26. The next contention raised by the defendants that Mangal Dass had no exclusive right in the suit property also has not been proved. It is the case of the defendants themselves that Mangal Dass had purchased suit land on 07.11.1950, They have also stated that the business under the name and style of Mangal Dass Nobat Rai remained in operation for about two years only and this period definitely was after the purchase of suit land by the plaintiff. No document has been produced by the defendants to prove that the consideration for sale deed Ext. DW-5/A was paid from the alleged business of joint family or HUF. To be more precise, there was no evidence to prove the existence of any business being run by joint family or HUF. In fact, defendant No.1 by way of written statement has admitted that he had started his independent business in the year 1958. Even PW-5 Shankar Dass had stated that defendant No.1 Nobat Ram had separated from his father somewhere in 1953-1954 and this part of statement of said witness remained unchallenged.
27. As regards the stand of defendants that the suit land was a coparcenary property, again the same is not made out. The 14 suit land admittedly was purchased by Mangal Dass; therefore, it was his self-acquired property. The character of ancestral property could be there had Mangal Dass inherited such property from his predecessors. Mangal Dass had transferred the suit property to his wife during his life time and for such reason also the question of coparcenary would not arise.
28. Since, the defendants have been holding possession of substantial portion of suit property without consent of plaintiffs, they are held liable to pay mesne profits at the rate of Rs.2,500/- per month from the date of filing of suit till the defendants handover possession to the plaintiffs.
29. In light of above discussion, there is merit in the appeal and the same is allowed. The judgment and decree dated 24.09.2002, passed by learned Additional District Judge, Mandi, H.P. in Civil Suit No.3 of 2002 is set aside. Accordingly, the suit of plaintiffs is decreed. A decree of declaration is passed in their favour that the plaintiffs are owners of land and building comprised in Khata Khatauni No.22/59min. Khasra Nos. 134,135,2321/136, 1203, 1204, 1205, 1205/1, 1206, 1207, 1208 and 1209, Kitas 11, measuring 3011-0 sq yards according to the Jamabandi for 1993-94 of Mauja Jogindernagar, Pargana Jitpur, Tehsil Jogindernagar, Distt Mandi, H.P. The defendants have no right to hold the possession of any part of suit land, therefore, the 15 defendants are directed to handover vacant possession of land comprised in Khasra No.134, measuring 2-2 sq yards, Khasra No.135, measuring 10-6 sq yards, one shop and four rooms in the ground floor of building on land comprised in Khasra No.2321/136, one room/residential house in the first floor building in Khasra No.1204 and 11 rooms in the building standing constructed on Khasra No.1206 as described in the site plan Ext. PW-2/A. A decree of mesne profits at the rate of Rs.2,500/- per month from the date of filing of suit till the defendants handover the vacant possession of above-mentioned property to the plaintiffs is also passed in favour of the plaintiffs. A decree of permanent prohibitory injunction is also passed against the defendants restraining them from interfering with the ownership and possession of the plaintiffs over the suit land.
30. Decree sheet be prepared accordingly.
31. Pending application(s), if any, shall also stand disposed of.
(Satyen Vaidya) Judge April 8th 2025 (vt)